3(1 resetitch to
JIt
of
OSHAWA AND DISTRICT
HISTORICAL SOCIETY
\
J2
.A-IBIBOTT
ON THE
RAILWAY LAW OF CANADA.
A TREATISE
R1ILIAI LAI OF CANADA.
EMBRACING
Constitutional Law. — The Law of Corporations. — Railway Securities.
Eminent Domain. — Contracts. — Common Carriers. — Negligence. —
Damages. — Master and Servant. — Text of Dominion and
Provincial Railway Acts, etc. — Forms of Pro-
ceedings in Expropriation.
, Q,_O.
OF THE MONTREAL BAR,
Professor of Commercial Law, Me Gill University.
MONTREAL :
C. THEORET, LAW BOOKSELLER AND PUBLISHER,
II and 13 St. James Street.
1896.
Entered according to Act of Parliament, in the year 1896, by C. Theoret,
in the office of the Minister of Agriculture.
HE
TO THE!
HONOURABLE MELBOURNE MacTAGGART TAIT, D.C.L.,
ACTING CHIEF JUSTICE OF THE SUPERIOR COURT FOR
THE DISTRICT OF MONTREAL,
In admiration of his great ability and sterling qualities ; and in grateful
remembrance and acknowledgment of much kindness and
courtesy, both while associated with him at the
Bar and after his elevation to the Bench,
THIS WORK
Is respectfully dedicated
By the Author.
PREFACE.
The author does not presume to offer this work to the
public and the profession as a complete treatise on Rail-
way Law generally, but, as he hopes it may prove to be,
a useful handbook of the law applicable to railway compa-
nies in this country ; and he trusts it may supply, in a prac-
tical and useful form, a want which has been felt for such a
book. No attempt has been made to reproduce the enor-
mous mass of English and American jurisprudence in
railway cases ; nor does the author pretend to give the
whole jurisprudence of this country, but believes that the
reader will find in the ensuing pages most of the leading
cases of authority bearing upon the majority of questions
affecting railways which have arisen in this country. Re-
ferences will be found to some American cases which have
seemed particularly in point, or which illustrate questions
not authoritatively decided in this country, but generally
the leading American text-writers have been quoted. A
freer use has been made of the jurisprudence of the
English Courts and of English text-writers, either in cases
arising under English statutes similar to our own, or to ex-
plain the English law on any given point. References are also
made to the jurisprudence and text-writers of France ; but
more sparingly, as the statute law of that country affecting
railways is in many respects radically different from our
own.
The author must crave the indulgence of his professional
brethren in other provinces than Quebec, if they miss
many familiar faces in their jurisprudence omitted in this
work. They must attribute such omissions rather to his
PREFACE.
unfamiliarity, as a member of the Quebec Bar, with their
case law, than to any failure of effort of research on his
part to ascertain its leading principles.
The general scheme of the book has been to give, as far
as possible, in consecutive order and sequence, the princi-
ples of law, statutory or otherwise, governing railway com-
panies, in their incorporation and organization, in the
obtaining of financial means to carry on the undertaking,
the acquiring of land and rights of way, the construction
of the road, its operation, and the rights and liabilities
consequent upon the exercise of their powers and the carry-
ing on of railway business. In addition, there has been
printed in an appendix the text of the Railway Act, with
references in each section to any differences in the various
Provincial Acts, the sections of the Criminal Code, and
some special statutes, affecting railways, as well as some
forms, which it is hoped may prove of use to the practi-
tioner.
The author cannot let this book go forth from the
press without acknowledging his great indebtedness to Mr.
F. L. Snow, Librarian to the New York Life Insurance
Company in Montreal, for valuable assistance in collecting
material for, and in the compiling of, this book ; and to
Mr. R. T. Heneker, of the Montreal Bar, in kindly giving
access to his private collection of Railway cases.
H. A.
MONTREAL, 29th February, 1896.
COMTeHTS
PAGES
Chapter I. — Introductory T
II. — Organization and management of Railway
Companies ir
III. — Shares and Shareholders , 34
IV. — General Powers 73
V. — Financing of Railway Companies — 86
VI. — Receivers 125
" VII. — Eminent Domain 136
" VIII.— Construction of the Railway 218
" IX. — Operation of the Railway 270
X. — Carriers 294
XI. — Negligence 363
" XII. — The Measure of Damage 418
Appendix, The Railway Acts i to clxxx
Analytical Index 643
LIST OF ABBREVIATIONS
OF
CANADIAN REPORTS.
•Grant's Chy Upper Canada Chancery Reports.
U. C. C. P Upper Canada Common Pleas.
U. C . Q. B Upper Canada Queen's Bench.
O. R Ontario Reports.
Ont. P. R Ontario Practice Reports.
Ont. A. R Ontario Appeal Reports.
L,. C. R Lower Canada Reports.
L. C. J Lower Canada Jurist.
R. L Revue Lggale.
M. L. R., S. C Montreal Law Reports Superior Court.
M.L. R.,Q. B " " " Queen's Bench.
L. N Legal News (Montreal).
L. C- L. J Lower Canada Law Journal.
Rev. de Leg Revue de Legislation.
Q. L. R Quebec Law Reports.
Q. R., S. C Quebec Official Reports Superior^Court.
Q. R., Q. B Quebec Official Reports Queen's Bench.
M. L. D. 6° R Monthly Law Digest &° Reporter (Montreal).
Man Manitoba.
N. W. T. Rep North West Territories Reports.
B. C British Columbia.
Geld &> Oxley ...... . . Nova Scotia Reports.
Russell and Geldert " "
N. S
Pugs New Brunswick Reports.
N. B « «
S. C. R Supreme Court Reports, Canada.
R, . ..." The Reports " England
Adams v. Lancashire & York Ry 368
Addlestone Linoleum Co . re 87
Albert Cheese Co. v. Leeming 224
Aldridge v. Great Western Ry 308
Alexander v. Toronto 6° Nipissing Ry 343
Allan v. Manitoba & N. W. Ry. Co 130, 132, 135
" v. City of Montreal 204
' ' v. Merchants Marine Ins. Co • 374
" v. Mullin 373
" v. Woodward 361
Allen v. Hay ward 235
Alley v. Trenholme 39
American Bridge Co. v . Heidelback : 105
Ames v. Trustees of Birkenhead Docks 126, 131, 132
Anderson v. Duke, etc. , Gold Mine Co ill
" v.C. P. Ry 268,361, 362
" v. Fish 316
Anderson's Case 87
Anglin v. Nickle 201
Angus v. Montreal, Portland &= Boston Ry. Co , 16, 17
Appleyard ex parte 87
Arbitration between Ontario and Quebec, and Gen. Taylor in re 175
Arless v. Belmont Manufacturing Co 35, 36
Armour v. Michigan Ry. Co 29
Armstrong v. Portage, Westbourne 6° Northern Ry 221
Arnot's Case 87
Ashurst v. Mason.... 25
Ashworth v. Bristol Ry. Co 87
Athenaeum Life Assr. Soc. in re 1 1 1
Atkinson?'. G. T. Ry 382
" v. N. & G. Water Works 366
Atlantic &= Northwest Ry. Co. v. Bronsden 202
v. Descarries 175, 203
v . Dunn 146
v. Johnson 196
v. Lavall6e 203, 204
v. Leeming 188, 212
v. Prud'homme 212
v. Trudel 202
v. Whitfield 203
v. Wood 2o£
•v. Walker 210-
Attorney Gen. v, Atlantic &* North Western Railway 246
" v. Grand Trunk Ry 84
" v. London Tramway Co 1 66, 170
v. Midland Ry 217
" v. Mid .-Kent Ry 234
x THE RAILWAY LAW OF CANADA.
Attorney Gen. v. M. C. P. Ry. and Trustees of Turnpike Road. . ..82, 253
Auclair v. Bastien 425
Auger v. Ontario &° Simcoe 6° Lake Huron Ry 268, 402
Austin v. Guardians of Bethnal Green 222
Australian Steam Navigation Co. v. Marzetti 222
Baby v. G. W. Ry. Co 33
BadgerowT/. G. T. Ry 393
Bagshaw v. Eastern Union Ry. Co 87
Bahia 6° San Francisco Ry. C. in re 45
Bailly v. Richelieu &* Ontario Nav. Co 311
Baker v. Louisiana Portable Ry 128, 129
Balkis Consol. Co. v . Tomkinson 45, 46
Balls'. G. T. Ry 410
Baltimore, etc., Ry. Co. v. Wilkens 29
Bank of England v. Hartga .' 49
" v. Parsons 49
" v . Lunn 49
of Montreal v. Sweeny 49
" -v. Simpson 50
of Toronto v. McDougall 21
" i .'. Cobourg, etc., Ry. Co 23,112, 113
Banque d'Hochelaga v. Garth 36
" v. M. P. & B. Ry 217, 232
Jacques Cartier v. Banque, etc., de Montreal 33
Barham T. Ipswich Dock Commissioners 235
Barrett v. Pullman Car Co 358
Barrow's Case 88
Bartlelt v . West Metrop. Tram. Co 130
Barry v. Ross 229
Bate v . Canadian Pacific Ry 297, 361
Bates v , Great Western Ry 307
Baxendale v. Bennett 118
Beal v. South Devon Ry 309
Beard v. Credit Valley Ry 269
Beatty v. North West Transportation Co. 21
Beaudet v. The North Shore Ry. Co i93} 197
Beauharnois Jet. Ry. Co. v. Bergevin 77, 145, 216
" " v. Hainault 145
Beaumont v. Canadian Pacific Ry . . 306
Beaver?*. G. T. Ry 283,285, 286
Beckett v. Midland Ry. Co 179, 180
Behan v. G. T. Ry 312, 418, 419, 420
Beliveau '• . Barthe 140
" v. Clement and Chevrefils 140
Bell v. City of Quebec 82, 164, 181, 182
Bender T. Can. Southern Ry 406, 407
Benner v. Currie 62
Benning v. All. 6° N. W. Ry. Co 149, 152, 153,156,159,160,
192, 196, 199, 200
Benoit v. Benoit 140
Bergheim v. Great Eastern Ry 349
Berlinguet v. The Queen 226
Bernardin v. Municipality of North Dufferin 220
Bertrand v. The Queen 244
Bethell v. Clarke 316
Bettridge v. Great Western Ry. Co 141
INDEX TO CASES. xi
Betts v. Williamsburg Ry. Co 155
Bickford v. Chatham 91
" v. Grand Jet. Ry 96, 97, too
Bigaouette v. Noith Shore Ry 179, 184, 193
Bilbee v. London, Bi ighton £^ S. C. Ry 407
Birch T. Cropper 70
Bird's Case 38
Black v. Baxendale 421
Blake v.C.P.Ry 384
Blamires v. L. & Y. Ry 366
Blanchard v. Windsor & Annapolis Ry 425
Blanchet v. Charron 148
Blower v. Great Western Ry 311
Blumenthal v. Biainard 128
Blum v. Southern Pullman Car Co 357, 358
Blyth's Case 88
Boggs v. Great Western Ry 384
Booth v. Mclntyre 217
Boucherville v . G. T. Ry 267
Bourdeau v. G. T. Ry 388
Bourdon v. Bernard 82, 249
Bourgoin v. The M. O. & O. Ry. 192, 195
Bowenz'. Can. Southern Ry 164, 179
Bovver v. Peate 235
Bowie v. Buffalo, Brant & Goderich Ry 319
Bradburn v. Great Western Ry 425
Brand v. Hammersmith Ry. Co 85, 166, 167, 168
' ' v. Schenectady Ry 382
Brantford, Waterloo 6° Lake Erie Ry. v. Huffman , 230
Brazier v. Polytechnic Institution 327
Braugh v. G. T. Ry 307
Brewster r. Hooker 290
" v. Mongeau &° The Montreal dr3 Sorel Ry 79, 139, 216
Brice v . Munro « , 53
Bridge v. G. Jet. Ry. 368
Bridges v. North London Ry 334, 370
Briggs v. G. T. Ry 287
Brigs v. Ry. Co 421, 422
Bristol 6° Exeter Ry. Co v. Collins 304, 307
British Bank v. Turquand Ill
' ' Columbia Saw Mill Co. v. Nettleship 420
'• Farmers Pure Linseed Cake Co 88
Button v. Great Western Cotton Co 366
Brodeur v. Corporation of Roxton Falls 164, 180, 181, 248
Brodie v. Northern Ry 319
Bronsden et al. v. The City of Ottawa 80
Brooke v. Toronto Belt Line Ry . . . .• 77
Brown v. Allan 227
" v. Brockville 6° Ottawa Ry 268
" v. Can. Pacific Ry .. 322
" r. Grand Trunk Ry 268
" . v. Le Maire de Montreal 28
' ' v. The Ottawa 6° Brockville Ry. Co 32
" v. The Commissioners for Railways 177
" v. Toronto 6° Nipissing Ry 256
Brunell v. C. P . Ry 390, 391
XII
THE RAILWAY LAW OF CANADA.
Brunei v. Montreal & Ottawa Ry. Co 143
Bruty v. Grand Trunk Ry 344, 346, 347
Brydges ex parte 28
Buccleugh, Duke off. Metropolitan Boaid of Works 168, 171
Buckraaster v. Great Eastern Ry 341
Buffalo, Brantford &° Goderich Ry. Co. v. Parke 64
Bullw. Bull,
Bunch v. Great Western Ry .
201
352
Burgess v . Grey 32
Burke r. Grand Trunk Ry 258, 259
Burkinshaw v. Nicholls 56, 69, 88
Burr <-'. Gamble 201
Burrows v. March 366
Bury v. Corriveau Silk Mills 27, 33
Bush in re 205
Butcher v. London & S. W. Ry 350, 353
Butler v Manchester, Sheffield £° Lancashire Ry 285
Butterfield v. Forrester 368
Cadwallader v. Grand Trunk Ry 344, 348
Cahill v. London & North Western Ry 344, 346
Caledonia Ry. Co. v. Walker's Trustees 82, 165, 178, 179
Cameron v. Wigle , 140
Campbell's Case 23
Campbell v. Grand Trunk Ry 261,297, 4°6
" i'. Great Western Ry 402, 406, 407
*' v. McG.egor 412
" v. St. Lawrence Sugar Refining Co 390
Cameron v. Ontario, Huron & Simcoe Ry 239> 269
' ' v. Nystrom 389
Canada Atlantic Ry. Co. v. Stanton 12
" " v. City of Ottawa 90
" " v. Norris 204, 207
" " v. Mosely 370
" i\ Moxley 409, 413
v. Sauve" 417
Canada Central Ry. v. Murray 26, 27, 32, 220, 224, 230
" " v. The Queen 90
Canada Car & Manufacturing Co. v. Harris 42
Canada Southern Ry. Co. v. Cunningham 199
v. Clouse 256,257, 259
v. Erwin , 256
r. Norval 156, 205
z'. Phelps 364, 409, 410, 413
v. Jackson 367, 390, 391
Canadian Navigalio Co. v. Hayes 345
Canadian Pacific Ry Co. v. Johnson 329, 331, 332
' z'. Landry ...'... 242
v . Pichette 242
v. Northern Pac. er3 Manitoba Ry 264
z1. Seminary of Ste. The"rese 190, 2 10
T'. Major 7, 79
•v. Goyette 331
v. Pellant 356
v. Lawson 367, 382
v . Chateauvert 367, 385
INDEX TO CASES. xin
Canadian Pacific Ry. Co. v. Chalifoux 371
" " i'. Cadieux 374, 375
». Fleming 380, 383
" " v. McLaren 413
" " v. Robinson 425
Canal Co. v. Archer 186
Cantin v. The North Shore Ry 139
Cardinal r1. La Cie. du Chemin deFer de Beauharnois 176
Carleton Branch Ry. v. Grand Southern Co 233
Carling's Case 88
Carpenter v. N. Y., N. H. &•= H. Ry. Co 357, 359
Carpue v. L. &= B. Ry 370
Carron v. Great Western Ry 243
Casgrain r. Atlantic &* North Western Ry 25 1
Casey v. C. P. Ry 379, 384, 385
Caston's Case 55
Carter v. Molson 33
Cathedral of Holy Trinity v. The W. O. P. Ry. Co 216
Cawthra v. Hamilton &* L. E. Ry. Co , 190
" v. Hamilton dr3 N- W. Ry .., 215
Central Vermont Ry. v. Lareau 335
" " v. Montmagny Insurance Co 417
Chalifoux v. C. P. Ry 2915, 297, 318, 373, 325, 370, 371
Chamberlain v. West of Lon. &•> Crystal Palace Ry. Co. 178, 180, 187, 238
Chapman v. Hadson 148
' ' i'. Great Western Ry 320, 322, 355
Chappell's Case 44
Charbonneau v. C. P . Ry 306
Charitable Corporation v. Sutton 25
Charlebois v. G. N. W. Cent. Ry. Co 100,101, IO2
Chassmore v. Richards 183
Chartierz'. G. T. Ry 306
Chester v. Man., Sheffield, etc., Ry- 323
Chewett v. G. W. Ry . 213
Chicago & Alton Ry. Co. v. Willard 286
" &= N. W. Ry. v. City of Chicago 257
Childs v. New Haven dr3 Northampton Ry 155
Christie v. Griggs 323, 325
Christin v. Union Navigation Co 41
City Bank v. Barrow 166, 275
" v . Cheney no
City of Glasgow Union Ry. Co. v. Hunter 167,168, 171
" of Dublin Steam Packet Co. v. Midland, G. W. Ry 279
' ' of Montreal v. Labelle 425
" of Three Rivers v. Lessard 82
' ' of Toronto v. Leak 200
Clarke v. London School Board 185
" z>.G.T.Ry 213
Clark v. Chambers 366
Clayes v. Darling 65
Cliff ?'. Midland Ry 407
Cobbans. C. P. Ry 282, 297, 301, 310
Cockburn v. Starnes 55
" v. Tuttle 55
" v. Beaudry 42, 59
Coggs v. Bernard 295
xiv THE RAILWAY LAW OF CANADA.
Cohen v. Wilkinson 87
Cole v. Ryan 44
Collard v . South Eastern Ry 422
Collins v. New York Central 6- H. R. Ry 412
" v. M. L. Commissioners 366
Colonial Bank v. Williams 50
Commercial Bank of Canada v. Gr N. W. Ry. Co .. . . . 1 1 i,"r 1 19
Compagnie duCh. deFer Centrals. Legendre 139, ^216
" des Wagons- Li ts v. Epoux Barthelemy 360
' ' du Grand Tronc v. Huard 7
Conger v. G. T. Ry 267
Connecticut v. Ohio, etc. , Ry. Co 29
" dr3 Passumpsic Ry. Co v. Comstock 40
Connelly v. Great Northern Ry .« 311
Connors i<. G. T. Ry 402
Conway v. C. P. Ry 399
Cooley v . Grand Trunk Ry 405
Cooper v. Young 422
Coiner v. Bird , . 372
Cornman v. Eastern Counties Ry 334, 402
Corporation du Comte d'Ottawa v. Q. M. O dr= O. Ry. Co 15
" of Parish of St. Liboire z- G. T. Ry 245, 254
" of Parkdale r. West 77,82,161,178,249, 216
" of St. Joseph v. Quebec Central Ry , 5
" of St. Valentin v. Comeau 245
" of Tingwick v. G. T. Ry 244, 269
" of Township of Pembroke v. Canada Central Ry 246
" of County of Welland v. Buffalo &° Lake Huron Ry 217
" of Ottawa v. Montreal, Ottawa & Western Ry 423
" City of St. Thomas v. Credit Valley Ry 91, 424
" of Pontiac v. Hon. J. G. Ross 93
' ' of Town of Barrie v. Northern Ry . Co 81
" of Roxton Falls v. The South Eastern Ry. Co 164
" of the City of Quebec v. Quebec Central Ry. Co 96, 1 18
" of County of Drummond v. South Eastern Ry. Co 102
" of Lanark and Renfrew v. Cameron no
Corry v. Londonderry, etc., Ry. Co 70
Cossette r. Leduc 392
Cote v. Stadacona Insurance Co 39, 60
Couch v. Grand Trunk Ry 366
Grafter v. The Metropolitan Ry 334
Craig v . Great Western Ry 287
Crawford v. Cincinnati Ry 286
Credit Valley Ry. Co. v. G. W. Ry 82, 264
Crevier v. Ontario & Quebec Ry. Co 258
Crewson v. G. T. Ry 187, 238, 239
Crickmer's Case 88
Crocker v- Old Colony Ry. Co 46
Croft v. London 6- N . W. R. Co 187, 238, 242
Crofts v. Waterhouse 323, 327
Cross v. C. P. Ry 406
Crowe v. Steeper 399
Cunningham r. G. T. Ry. Co „. 31, 287, 389
Cure of St. Anne v . Ottawa & Quebec Ry , 198, 200
Curran v. Grand Trunk Ry 376
Currie v. Couture 374
INDEX TO CASES. xv
Curry v. C. P. R 337
Curwin v. The Windsor 6° Annapolis Ry. Co 336
Curtis v. G. T. Ry 283, 426
Cutting v. Ry. Co 421
Daly v. Cunningham 150
Daoust v. La verdure 376
Dancey v. G. T. Ry , 283, 426
Daniels v. Directors, etc., of Met. Ry. Co 32, 326
" v. Potter 366
" v. Grand Trunk Ry 399
" v. Hart 121
Darlaston Local Board v. London 6° N. W. Ry 279
Darley Main Colliery Co. v. Mitchell 187, 269
Darnley, Earl of z>. L. C. dr> D. Ry. Co , ... 150
Davey v. London & S. W. Ry 384
" v. London &> North Western Ry 380
Davidson v. Grange 18
" v. Canadian Shipping Co 348, 357
Davis v . Gray 128
Davis v. The Railroad 347
" v. G. W. Ry 287
" v. C .P. Ry 399
Davies v. Mann 368
Dawson v, Manchester, Sheffield, etc., Ry 323
" v. Trestler 409
Day -v. Town of Guelph in re 82, 246, 25 1
DeBlois v. The Queen 256
Delano's Case 57
Delaware, Lack. &° West Ry. v. Erie Ry. Co 128
Deming v. Ry. Co = 421
Denaby Colliery Co. v. The Manchester, etc., Ry. Co 275
Denham dr" Co. in re 25, 71
Delorme v. C. P. Ry 312
Denison v . Leslie 57
Denton v . The Great Northern Ry 340
Desrosiers v. M. P . 6° B . Ry . Co 95 , 113
Desy v. C. P. Ry 406
Desroches v. Gauthier 377 , 392
Desrousseau v. Boston & Maine Ry 385
Deverill v. G. T. Ry 389
Devlin v. G. T. Ry 307
DeWinton v. Mayor of Brecon 127
Dionne v. C. P. Ry 306
Dixon v. Evans 55
Dixon v. Richelieu Nav. Co 362
' ' v. Richelieu &> Ontario Navigation Co 345
Dobell v. Ontario Bank 225
Dodge v. Windsor &° Annapolis Ry 422
Dolrey v. Ont , Simcoe 6° Huron Ry 399
Dolsen re 140
Dominion Oil Cloth Co, v. Coallier 377, 390
Doran v. G. W. Ry 223
Douglas v. G. T. Ry 399
Dowes v. Ship 58
Dresser v . Norwood 33
Drinkwater v. Deakin 18
Drummond v. Holland 129
xvi THE RAILWAY LAW OF CANADA.
Dublin, Wicklow, etc., Ry. v. Midland G. W. Ry 279
Dublin, Wicklow, £-> Waterford Ry. v. Slattery 369, 370, 381
Dubuc 'v. Montreal &* Sorel Ry . 259
Duff v. Great Northern Ry 342
Duffy v. Thompson 348
Dukez/. G. W. Ry 283
Duke of Buccleuch v. Metrop. Board of Works. . ..168, 171, 178, 187, 195
Dumble v. The Peterborough 6° Lake Chemong Ry. Co 63
Dunaberg 6° Witipsk Ry. v. Hopkins 227
Duncan r. C. P. Ry 406, 407
Dunlop v . Canada Central Ry 140
" v. Township of York 214
Dunstan v. Insp. Gas Co 25
Dussault v. North Shore Ry 415
Eddy The 322
Eagle z: Charing Cross Ry. Co 166, 185
Earl of Darnley z\ London, Chatham &° Dover Ry 150, 198
East and West India Dock &" Birmingham Jet. Ry. v. Gattke 188
Eastern Townships Bank v. Municipality of Compton .... 112
Eaton v. European 6° North. Ry. Co 31
" v. The Railroad Co 331
Edgar and Wife v. The Northern Ry 334
Elbinger Actien Gessellschaft v. Armstrong 422
Ellis v. Sheffield Gas Consumers Co 32, 234
" v. The Midland Ry , 223, 225
Erbz/.G. W. Ry 29
Essex T. Local Board of Acton 168
Etherington v. Wilson 18
Evans z\ Atlantic $r N. W. Ry. So, Si, 154, 185
" v. Coventry 125
Evershed v. North West Ry 276
F. Street in re 186
Fairbanks ?-. O'Halloran 17
" v. Great Western Ry 249, 253
Falconer v. The Queen 176
" z1. European 6° North American Ry 369, 402
Farlinger 6° The Village of Morrisburg in re no
Faimer v. McNeil 150
Faucher r. North Shore Ry 386
Faure Electric Accumulator Co 24
Featherston r. Cooke 126
Fellowes v. Ottawa Gas Co 1 15
Ferrie v. Great Western Ry 289
Fero 7f. Buffalo, etc., Ry 412
Ferris z1. Grand Trunk Ry 404
Field v. Galloway 62
Firth rp. North Eastern Ry 353
Fitch v. Newberry 291
Fitzgerald v. Midland Ry 341
Fitzherbert r1. Mather 33
Fitzpatrick r. Gieat Western Ry 365
Flannigan z: C. P. Ry 410
Fleckner r. U. S. Bank 222
Fleming and Wife v. Newport Ry 82, 82, 165
Flitchcrofi's C«se 25
Florida r. Pullman Car Co 358
INDEX TO CASES. xvn
Forbs v. Boston, etc., Ry 420
Ford v. Metropolitan Ry. Co 185
' ' v. London 6° South Western Ry 325
Fordyce v. Kearns 409
Foreign Gas Co. re 88
Fosdick v. Schall 135
Foster 6° Great Western Ry. in re 2 1 1 , 215
Foucher zp. North Shore Ry 375
Fouchon v. Ontario &> Quebec Ry 397, 426
Fountaine v. Carmarthen Ry. Co in
Fowles v. Great Western Ry 308
Foy v. London, Brighton 6° S. C. Ry 326
Francis v. Cockerell 326, 327
Fraser v. Robertson 67
Frederick v. Marquette 286
Freeman v. O. 6° Que. Ry 201
Fuller r-. Grand Trunk Ry 388
Fulion v. G. T. Ry 283
Furness r. Caterham Ry 125
Gagnon ?'. Forsythe 374
Gagg -<.'. Vetter 386
Galbraith v. Walker 150
Gallin T. London &= N. W. Ry 342, 343
Gait v. Erie, etc., Ry 101, 130, 217
Galveston Ry. Co. v. Cowdrey 105, 106
Gamble T. Great Western Ry 350, 352
Gardner 7'. London, Chatham &* Dover Ry. Co 101, 127, 130
Gai rctt f . Salisbury &* Dorset J ct. Ry 226
Garside v. The Proprietors of the Trent &° Mersey Nav. Co 320
Gaskell v. Chambers 24
Gauthier v. C. P. Ry 305
Geauyeau v. G. W. Ry 78
Geddes?'. The Toronto Street Ry- Co ill, 1 12
Gee v. Metropolitan Ry 326, 368
Gei main v. Montreal dr5 New York Ry 267
Gibson v. Mu?kett 426
Gilbert's Case , 44
Gilley v. Miller « 149
Gillies i>. Great Western Ry 399
Gillingham v. Dempsey 420
Gilman v. 111. £•> Miss. Tel. Co 105, 106
" v. Robertson 15, 17
' ' v. Robertson 6° The Royal Can. Ins. Co 15, 67
Gingras v. Desilets 425
Glasgow e° London Ins. Co. v. C. P. Ry 409
Glasier v. Rolls... 70
Glass v. Hope 66
Glover v. North Staffordshire Ry. Co 185
Goff v. Great Northern Ky 289
Goodf-rham & . Toronto &> Nipissing Ry. Co 133, 135
Goodwin v. Ottawa & Prescott Ry . , 48
Gordon v. G. T. Ry 307
Gosselin r G. T. Ry 78
Government of Newfoundland v. Newfoundland Ry . Co 233
Grace v. Adams 303
Graham r. Toronto, Grey &> Bruce Ry 31, -33O
XVIII
THE RAILWAY LAW OF CANADA.
Graham v. Birkenhead Ry 87
" v. Great Western Ry 387
Grand Junction Ry . Co. v. Midland Ry. Co 74
Grand Trunk Ry. Co. v. Corp. of Peterborough 92
" " v. ex parte 28
" i>. Corp. of Levis 1 10
" " v. Credit Valley Ry 138
" v . Eastern Townships Bank 108
v. Fitzgerald 30
v. Miville 82, 83
v. Webster 46, 424
v. Bpulanger 336, 367, 371
v. Fitzgerald 313
v. Godbout 249, 383 , 384
v. Gutman 318
v. Huard 255, 256
v. Huston 319
i'. McMillan 305
v. Miville 242
v. Mountain , 313, 319
T-. Sibbald 245, 366,382, 385
v. Beckett 367, 384, 425
v. Rosenberger 364, 366, 367, 382, 384
v. Vogel : 361
i1 . Tremayne 366
v. Wilson 370
v. Richardson 412
v. Meegan 415, 416
v. Jennings 424
Grant v. Northern Pacific Ry 305
Great Laxey Gold Mining Co. v. Clagis 1 74
Great-Luxembourg Ry. Co. v. Magnan 24
Great Northern Ry. v, Harrison 332
" " v. Hawcroft 340
" " ^.Shepherd 345
Great Western Ry. v. Brown 387
' " v. Bunch 360, 350
" v. Braid , 370, 323, 326, 327
" v. Baby 193, 196
" v. Chauvin in re 196
v. Uodds 196
v. Hunt 194
v. Laderonte 192
' &. Miller 190
v. Rolph 193
v. Crawford 290
v. G. T. Ry 279
b. Willis 314
•v. Sutton 273
v. McCarthy 300
Gray v . Johnston 49
Greenland v. Chaplin 364
Grebert Borgius 7r. JN ugent 422
Grenier v. City of Montieal ' 269
Grimes r. Harrison 25
Giiffin T'. Great West. Ry. Co 30, 314.
INDEX TO CASES. xix
Grimshaw v. Grand Trunk Ry , 190
Grote v. Chester &° Holyhead Ry 327
Groulx v. Wilson 292
Groulx v. C. P. Ry 406
Guilbault v. McGreevy 226
Gunn's Case 37
Gwatkin v. Harrison . . . , 53
Hackett v. Ry. Co 422
Hadley v. Baxendale 418
Halcrow v. Lemesurier 311
Haley v. Chicago &> North Western Ry 286
Haldan v. Great Western Ry 337
Halifax Sugar Refining Co. re 88
Hall v. McFadden 337. 368
" v. North Eastern Ry 342
" v. G. T. Ry 319, 353
" v. Can. Copper, etc., Co 388
Hallmark's Case 25
Hamilton &° Port Dover Ry. Co. v. The Gore Bank 27, 33, 223
'• v. Hudson Bay Co 4'9j 4 20
" v. R. R. Co 422
" v. McGill 422
" v. Transit Co 126
" v. Wilson 201
" &° Brock Road Co. v. Great Western Ry 255
v. Grand Trunk Ry 307
Hamlin v. Great Northern Ry , 339, 341
Hammersmith Ry. Co. v. Brand ,.. 170, 172
Hammock v. White 402
Hampton v. Pullman Palace Car Co 358
Hanlon v. S. B. of H. Ry 366
Harden v. Phillips 23
Harew. London 6° N. W. Ry 279
Harris' Case .... 37
Harris v. Dry Dock Co 60,63, 66
" v. Edmonston 297
" v. Great Western Ry 303
Harrison v. Mexican Ry. Co 89
Harrold v. Great Western Ry 334
Hart v. Jones 297, 314
" v. Penn. Ry. Co 301
Harvey v. Harvey 59
" v. C. P. Ry 333
Hatton v. M. F. dr> B. Ry. Co 16, 19, 20
Hawkins v. Bourne 32
" v. Great Western Ry 311
Hayes v. M. C. Ry 366
Heaven v. Fender 363
Heazle v. Indianapolis Ry 323
Hebb's Case 37
Hegeman v. The Railway Co 327
Henderson v. Stevenson 343
Hendrie v. Grand Trunk Ry 1 16
Henry v. C. P. Ry 314
Hei rick v. Central Vt. Ry 226
Herring v. Napanee, etc. , Ry . Co 194, 199, 2co
xx THE RAILWAY LAW OF CANADA.
Herring r. Melrop; Board of Works 180, 184
Hewitt 7'. Ontario ,*Simcoe &" Huron Ry 410
Hibbard?'. New York &> Erie Ry 286
Hill &. M. S. Ky 29
" T/.G.T. Ry 259
" z: Ontario, Simcoe &° Huron Ry 413
Hillyardr. G. T. Ry 262
Hirsche r. Sims 68
Hitchins v. Kilkenny Ry. Co 52
Hobbs -c'. Lond. 6° S. W. Ry 365, 289, 339, 341
Hochelaga Bank v. M. P. & B. Ry. Co 102
Hodgson v. The Earl of Powis 87
Hodkinson r . London &* N. VV. Ry 321, 353
Hodges v. The Railway Co 322
Hogan r. Dorion 29
" v.G.T.Ry 319, 353, 354
Hole T\ Sittingbourne, etc., Ry. Co 32
Hollinger r. C. P. Ry 384
Holmes r. Moore 355
Hooi»er 2'. The Eiie & Huron Ry. Co. in re 190
Hopkins v. Great North Western Ry. Co 185
Home z\ Midland Ry. Co 418, 421, 422
Horseman v. G. T. Ry ; 313
Hotchkiss v. Hall , 201
Household Fire Ins. Co. v. Grant 37
Howard's Case 40
Howe v. The H. &> N. W. Ry 251, 3*67
Hoyt v. Quicksilver Mining Co 89
Hudson z: Midland Ry. Co , 346, 348
" T<.L.d-N. Ry 383
Hughes z\ Canada Permanent Invest. Soc 221
" v. Perci val 235
" r. McFie 366
Huntsman v. G. W. Ry 426
Hurd v. Grand Trunk Ry 401
Hurdman r. Can. Atl. Ry 39°> 393
Hutchinson r. Guion 314
" v. C P. Ry 323, 329, 331
Illidge T. Goodwin 366
Illinois Central Ry. v. Willenborg 257
" " v. Copeland 348
Imperial Hydropathic Hotel Co. v. Hampson 23
Inderwick T'. Snell 23
Indianapolis Ry. Co. z1. Horst 323, 325
Ingersoll e° The Thamesford Gravel Road Co. v. McCarthy 59
Ingledew v, Ry. Co 421
Inman r. Buffalo d-= Lake Huron Ry 319
Ingalls v. Bills 323, 326
Ionic, The 348
Iron Ship Coating Co. v. Blunt 22
Jack I-. Ontario, Simcoe dr» Huron Ry. Union Co 407
Jackson v. N. C. & St. L. Ry , 364
" v. Metropolitan Ry 370
James v. The O. 6- Q. Ry. Co 76, 156, 160
Jameson v. Midland Ry 418
Jasmin v. C . P. Ry 263
INDEX TO CASES. xxi
Jasmin r. O. 6° Q. Ry 397
Jeffrey v. Can. Shipping Co 305
Jenkins T. Wilcock 52, 53
«' i'. Central Ontario Ry 210, 215
Jennings;:1. G. T. Ry 329
Jerome v. Smith 286
Jessup v. Grand Trunk Ry 78
Jodoin v. South East Ry 414
Johnson v. Toronto, Grey <S° Bruce Ry 115
" v. Lafflin 44
" T. Lindsay 389
" v. Montreal Jet- Ry 233
« v. Northern Ry . 384, 385
Joint Stock Discount Co. v. Brown 25
Joly i'- Moreau 145
Jones v. Eastern Townships Mutual Fire Ins. Co 21, 24
1 v. G. T. Ry 336, 366, 367
< v. The Queen. 226,227, 228
' v. Boyce 368
' v. Laurent 150
' v. Montreal Cotton Co 40
' v. Municipality of County of Albert no, 1 1 1
' v. Prentice 1 50
' v. Stanstead Ry. Co. 162,164,166,167, 185
Judah v. City of Montreal 164
" v. Atlantic &= North Western Ry 203, 215
Kane r. Montreal Tel. Co 71
Kansas City Ry. Co. v. Morrison 34 7
Karnes v. Rochester, etc. , Ry . Co 70
Kellog f. Chicago &* N. Ry 411
Kelleit t: G. T. Ry 319, 353, 354
Kelly v. Ottawa Street Ry 268
" H. &*St.J. Ry 366
Kendall v. London 6° S. VV. Ry 310
Kerr v. Atlantic <&•= N. W. Ry 236, 269
" v. Penn. Ry. Co 410
Keys v. Quebec Fire Ins. Co 24
Kingsley v. Lake Shore Ry 359, 360
Kimberly v. Dick 227
Kingston &* Pembroke Ry. Co. v. Murphy 77,80,210, 214
Kirby'sCase 88
Kirby ?'. Lewis 426
Kirkland v. Dinsmore 303
Knapp v. Great Western Ry. Co 187, 238, 241, 269
Lake superior Navigation Co. i'. Morrison 38
Lambe v. Montreal 6° Sorel Ry. Co 126
Lambert r. Corp. of Three Rivers 82, 247
" v. Neuchaiel Asphalt Co 71
" T. Grand Trunk Ry 402
Lambkin v. South East Ry •••365J37I» 42S
Lancashire &* Yorkshire Ry. v. Evans 187, 238
" " " v. Mayor 6° Corporation of Bury. . .250, 253
Land Credit Co. of Ireland v. Lord Fernoy 25
Landry v. North Shore Ry 261
Langdon v. Robertson 289, 421
Langevin v. C . P. Ry , . 406
xxn THE RAILWAY LAW OF CANADA.
Lapointe v. C.P.Ry 31
« v.G.T.Ry 307
Lavalle"e r. Atlantic & North Western Ry 204
Laviolette i>. Thomas „ 29
Lavoie v. Drapeau 390
Lawrence r. Greenwich Fire Ins. Co 126
" v. Great North Western Ry. Co 174, 187, 238, 240
Lawson v. Hutchinson 201
Lea re 212
Leader r. The Northern Ry 319
Leaf v. Canadian Shipping Co 291
Le Barren v. E. B. F. Co 326
Le Blanche v. The London 6° N- W. Ry 339, 341
Lee v. Victoria Ry. Co 131, 135
" v. Neuchatel Asphalt Co .... 71
«•' v. G. T. Ry 346
Leeds Estate Co. v. Shepherd 25
Leeming T'. Atlantic & North Western Ry 188
Lefebvre v. City of Quebec 164, 248
Legge v . The Laurentian Ry 224
Leigh c'. Smith 30, 314
LeMay v. C. P. Ry 395, 396
Lemoine r. City of Montreal ....'. 204
Leonard v. C. P. Ry 416
Lesperance v. Great Western Ry 187
Lever tr. Land Securities Co 71
Levi z>. Reed 425
Lewis v. Brady 1 10
" v. London, Chat. & Dover Ry 334
« z>.G.\V. R 238, 239
Lincoln Paper Mills Co. z\ St. Catharines 6° Niagara Ry 217
Livingston z1. G. T. Ry 287
London, Brighton d^ S. C. Ry. v. Truman. 84, 85, 144, 165, 166, 168, 170
" Celluloid Co. re 87
" Tilbury & South End Ry. Co. v. Gower's Walk Schools 169
Louden v. Taxing District 423
Lord G^raid r. The Lond. 6" North Weste rn Ry 178
Lord Provost of Glasgow z>. Farie 177
Lovell v. London, Chat . & Dover Ry. Co 351
Louisville 6° Nashville Ry. v. Fleming 286
" etc , Ry. Co. v. Spain 403
Lyons v. Hoffnung 316
Lyon v. Fishmongers Co 178, 183
Lynch v. Nurdin 366, 369
Lyman v. Peck 184
MacBeth v. Smart 6 1
MacDonald v. Presant 200
" r. Montreal &> New York Ry. Co 47
'•' T'. The Mayor, etc., of St. John 288, 334
MacFarlane v. Corp. of St. Ce"saire 112
Macfarlane v Gilmour 389
MacLean r. The Niagara Falls Park 205
MacMullen v. Cayley 201
MacMurrick v. Bond Head Harbor Co 21, 42, 47
MacRae v. C. P. Ry 272
MacWillie v. North Shore Ry 166
INDEX TO CASES. xxm
Me Arthur v. Northern ^Pacific Jet. Ry. &* Hendrie 81, 268
McCaffrey v. C. P. Ry 344.348, 353
McCallum v. G. T. Ry 268
McCarron i> McGreevy 226, 227, 228
McCarthy v. Dublin, etc., Ry 285
McCawley v. Furness Ry. Co 342
McCracken v. Maclntyre 56
McCrossen v. G. T. Ry 320
McDougall v. McGreevy 423
McFadden v. Missouri P. Ry 303
McFie v. C. P. Ry 402
McGibbon v. Northern Ry 411
McGillw. G. T. Ry 314
" v. Grand Trunk Ry 421
McGillivray r. Great Western Ry 187, 238, 239, 243, 269
McGinney v. C. P. Ry 333, 334
McGreevy v . Boomer 226
McGregor v. Currie 62
Mclntosh v. Commissioners of Court House at Halifax 223
" T'. Grand Trunk Ry 399
" v. Great Western Ry 227
McKay v. Lockhart 319
McKenna v. N. Y. Cent. & H. R. Ry 401
McKenziew. C. P. Ry 398
McKenzie v. Kitti idge 51
McLaren v. Can. All. Ry 413
McLauchlin v. G. T. Ry 260, 394, 395
McLellan v. Grand Trunk Ry 399
McManus v. Lancashire dr3 Yorkshire Ry 310
McMichael v. G. T. Ry 262, 263
McMillan v. Grand Trunk Ry 307, 308, 355
" v. Manitoba &* N. W . Ry 260, 402
" v. Michigan South 6° North Indiana Ry 322
McPadden v. New York Central Ry 323
Macrow v. Great Western Ry 344, 346, 347
Madden v. Cox 93
Magog Textile 6° Print Co. v. Price 36, 40
" " v. Dobell 36
Maguire v. City of Montreal 372
Malhiot v. Burroughs 210
Manchester Ry. v. Brown 300
Mangan v. Atterton 369
Manitoba Railway Crossings Case 265
Marcheterre v. O. &° Q. Ry . . 267
Margette v. Williams 423
Markhaui v. Great Western Ry 405
Marmora Foundry Co. v. Boswell 66
" v. Jackson 66
" v. Murray 66
Marshall v. Grand Trunk Ry 267
Mason v. South Norfolk Ry 216
" v. Grand Trunk Ry 307, 319
Masterton v. Mayor of Brooklyn 419
Massawippi Valley Ry. Co. v. Walker 40
Massey Manufacturing Co. , The in re 14
Mathews v. Great Northern Ry 89
xxiv THE RAILWAY LAW OK CANADA.
Mathieu v. Q. M. dr> O. Ry 186
Matthews v Hamilton Powder Co 389
May v. Ont. &> Que. Ry 268
Mayer v. Grand Trunk Ry 303, 319
Mayor of Montreal v. Drummond 163, iSl
Mead v. Township of Etobicoke 249
Mechanics Society in re 128
" Whale Fishing Co. v. Kirby 223
Meek v. Penn. Ry. Co 366
Meier v. Penn. Ry. Co 323
Merchants Despatch Co. v. Hately 30?, 309
Mersey Dock Trustees f. Gibb , 365
Mersey Docks v. Lucas 70
Merrill v. Grinnell , 348
Metropolitan Ry. Co. v, Jackson 364, 365
Metropolitan Board of Works v. McCarthy 179, 180
" District Ry. Co. v. Sharpe 21
Michigan Central Ry. v. Myrick 304
Midland Ry. Co. v. Young 140, 142
" " z. Cribble 258
" " v. Rev. Sir F. L. Robinson 177
Miller v. Great Western Ry. Co 193
" v. Grand Trunk Ry 242,384, 385
'f i'. Great Repub. Ins. Co 44
" v. Hogg 150
" v. Rutland & Wash. Ry. Co 120
Milligan v. Grand Trunk Ry 313
Mills v. Atlantic dr> N. W. Ry 150, 197
" v. Northern Ry. of Buenos Ayres 70
" v. Stewart 67
Milot v. Perrault 16
Miner v. Gilmour 182, 183
Minnesota Co. v. St. Paul Co 108
" Central Ry. v. McNamara 155
Mistner r. Mich. Cent. Ry 396
Mississippi Ry. Co. v. Kennedy ....,, 348
Mitchell v. Darley Main Colliery Co 235
Moffatt v. Farquhar 44
Moffette v. Grand Trunk Ry 368,369,371,380, 382
Moggy v.C.P. Ry 385, 386
Moisan -v. Great Western Rv 243
Molson's Bank v. Stoddart 59
Mongenais v. Allan 310
Montreal & Ottawa Ry. Co. v. Bertrand 204
" " r. Castonguay 204
Montreal City £° District Savings Bank <:'. Geddes 71
'• City Pass. Ry. Co. 7r. Dufresne 3^9, 377
Montreal & Soiel Ry. Co. v Vincent 210
" O. 6- O. Ry. Co. v. St. Denis 195
" U. & O. Ry. v. St. Denis 199, 200
" Portland &* Boston Ry. v. Banque d'Hochelaga 96, 114
Moore t'. Central Ontario Ry 190
" z>. Kirkland 52
" v. McLaren 44, 45
' ' v. The Poit Bruce Harbor Co 15
" v. The Great South & Western Ry. Co 179
INDEX TO CASES. xxv
f. Atlantic &•» N. W. Ry. Co 31, 399
" v. The Queen 239, 242, 244
Morrison v. G. T. Ry 96, 102, 126
v. Rich. dr= Ont. Nav. Co ^52
v. Phillips &° Co 303
•v. City of Montreal 204
•v. Mayor of Montreal 204, 18 1
v. Davis 411
Moulson v. Eyre , 149
Moynaugh v. Angus 184
Mudford's Claim ; 87
Muir v. Caledonia Ry. Co 166
Municipal Corp. of Vestra and Sunnidale v. Realty 43
Murdock v. Woodson 120
Murphy v. La Cie. des Remorqueurs du St. Laurent 17
" v. City of Ottawa 236
Murray v. Vanderbilt 126
" z>. Grand Trunk Ry , 292
" v. S. E. Ry 328
Muschamp v. Lancashire &* Preston Ry 304
Mussen v. Canada Atlantic Rv 206
Myatt v. St . Helen &• R.'G. Ry 103
Mytton v. Midland Ry 308, 344, 348
Nashville &* Pecatur Ry. v. Jones .• . . . 327
Nasmith't1. Dickey 53, 62
« v. Manning 35, 36, 37, 39, 56
Natchez, etc., Ky. Co. v. McNeil , 326
National Funds Assurance Co. in re 25
'c Insurance Co. v. Chevrier 40
« " v. Hatton 41
" Telephone Co. v. Baker 85
Nehan v. St. Catharines Ry. Co. 191
Nelson v. Hudson River Ry , 310
New Brunswick Ry. Co. v. Vanwart 367
" " z.'. Armstrong 402
' ' v. Robins 402
«' v. Robinson 4H) 412
New Chili Gold Mining Co 88
New Clydock Sheet <&•> Bar Iron Co. in re 105
Newhaven Loc. Board v. Newhaven School Board 20
New Orleans Ry. Co. v. Faler , .... 326
New York Elevated Ry. Co. in re 74
" Central Sleeping Co. v. Donovan 288
Nichol v. Canada Southern Ry 32, 187, 238, 239, 241
NichoPs Case 88
" v. Great Western Ry 385
Nitro Phosphate Co. v. L. 6f St. K. Docks Co 365, 366
Nixon v. Brownlow 59
" v. Grand Trunk Ry 406
Nolton z1. Railroad Co 329
Norris v. Canada Atlantic Ry 206, 207
North Shore Ry . Co. v. Beaudet 149, 192, 193
" " v. H6pital du Sacre"-Cceur 193
" " i\ Les Ursulines tie Quebec 153, 192
fi " v. Pion 162,163,166,179,182, 184
'< « v. McWillie ., 416
xxvi THE RAILWAY LAW OF CANADA.
Northern Pac. Ry. Co. v. Grant 314
Norton v. Eastern Ry 383
North West Transportation Co. v, Beatty 21
Norvall v. C. S. Ry 196, 199, 2Co
Norway Plains Co. v. Boston d-5 Maine'_Ry 321
Nott v. Nott 201
Nova Scotia Central Ry. Co. z>. Halifax Banking Co 121, 122
O'Brien v. Credit Valley Ry 33
O'Connell v. Frigon 150
O'Neill v. Great Western Ry 319
O'Reagan v. Cunard S. S. Co 303
O' Rourke v. Great Western Ry 29, 303
O'Sullivan r. Victoria Ry 389
Oakbank Oil Co. v. Crum 69
Oakes v. Turquand 57, 59
Oaks v . City of Halifax 149
Oldwright v. Grand Trunk Ry 335
Oliver v. Great Western Ry 29
Ontario Maiine Insurance Co. v. Ireland 66
" Car Co. v. Farwell "07
" " z1. Quebec Central Ry 102
Ontario d^ Quebec Ry. Co. v. Cure's, etc , de Ste. Anne, etc 149, 198
" " 7'. Latour 152
" " r. Philbrick 209
" " v. Taylor 160
Ontaiio d-5 Sault St. Marie Ry, Co. v. C. P. Ry 9, 74, 77
Ontario Express d^ Tvans. Co. v. Grand Trunk Ry 281
" Co-operative Stone Cutters Association v. Clarke 224
Ooregum Mining Co. v. Roper 68
Osier v. Toronto, Grey &> Bruce Ry I r 4
Ostell v. Joseph 150
Ouimet v .Can. Express Co 312
" v. Henshaw 353
Overend, Gurney &> Co. z\ Gibb 25
Owen Sound S.S. Co. v. C. P. Ry. 279
Pacific Ry. Co. r. Thomas 27
Packard <•. C. P. Ry 345, 362
Page v. Austin 14, 53, 58
Paige v. Smith 128
Paine v. Woods 155
Paint Z-. The Queen , 158, 175, 177
Palin r1. Reed 355
Paradis z>. The Queen 212, 1 60, 1 66,' 177, 184
Parana, The 419
Parish of St. Liboire v. Grand Trunk Ry 245
Parish of St. Ce'saire i<. MacFarlane 92
Parker r. Lewis 25
" z<. McKenna 24
" z1. Montreal Street Ry 252
" z1. S . E. Ry 303, 344
Parks 7-. City of Boston 186
Parsons z'. Jackson .'13
Partridge z\ Great Western Ry 244
Patscheider r. Great Western Ry 353
Patterson r. Davidson 292
" z\ Great Western Ry 269
INDEX TO CASES. xxvn
Patterson v. Buffalo &> Lake Huron Ry , 217
Peart v. Grand Trunk Ry 383, 384
Peck v. Harris 184
tf v . North Staffordshire Ry 298, 303
Pellant v. C. P. Ry 355> 356
Pellatt's Case 37
Pembrooke r. Can. Cent. Ry 251
Pendlebury f . Greenlagh 32
Pennsylvania Ry. Co. v. Ccnnell 288
" " 7'. Kerr , 411
" " v. Barnett 383
Penny Re , 184
Penny ex parte 43, 184
Penton r. Grand Trunk Ry 353, 355
People r. N. Y. Central, etc., Ry 386
Periam i<. Dompierre 372
Perrault v. C. P. Ky 283, 284
" 7>. Milot 14
Peterborough Ry. Co. v. Nashua 6° L. Ry. Co 68
Peters v. Que. Harbour Commissioners 226, 227, 228
Peto 7'. Welland Canal Co 125, 12 •>, . 129
Phelps f. Lyle 20
" v. The St. C. & N. Ry. Co 101
Phil . &> Sunbury Ry. Co. v. Lewis ill
Phillips 7». C. P. Ry 406
" 7'. London &> S. W. Ry 425
Philadelphia & W. B. Ry. Co. v. Stinger 383
Phips v. London £-° N. W. Ry 277
Phelps 7'. London d-3 N. W. Ry 344, 346, 348
" v. Great East. Ry 402
Philbrick 7'. Ont. d^ Que. Ry 212
Pickard i'. Smith 235
Pigeon 7-. City of Montreal 267
Pim v. Municipal Council of County of Ontario 220
Pion 7'. North Shore Ry. Co 162, 163, 167, 178, 179, 182, 184, 216
Pittsburg 6° Lake Erie Ry. Co. v. Robinson 155
" Cincinnati 6° St. L. Ry. Co. 7'. Staley 364
" 6° Southern Ry. 7'. Taylor 364
" etc., Ry. Co. 7'. Thompson 323
Plant v. Grand trunk Ry 389
Pollock 7>. Eastern Ry. Co 383
Pontbriand v. Grand Trunk Ry 312
Pontiac &° Pacific Jet. Ry. 7'. Brady 405
Pontus dit Clement v. Rousseau 377
Poole 7'. Middleton 43
Port Dover & Lake Huron Ry. Co. v. Grey 40, 41, 64, 65
Porter v. Hildebrand 347
Porter v. New York Central Ry. Co 29
Port Glasgow &° Newark Sailcloth Co. v. Caledonian Ry. Co.... 407, 412
Potts 7-'. Warwick, etc., Canal Navigation Co 126
Poudrette v. O. d^ Q. Ry 243
Pratt 7'. Grand Trunk Ry 306
Prehn i'. Royal Bank of Liverpool 423
Prescott 7'. Eastern Ry. Co . 383
Priestly 7>. Farrell . . . '. 389
Provencher 7'. C. P. Ry 357, 421
xxvin THE RAILWAY LAW OF CANADA.
Provident Life Assr. c^ Investment Co. i-. Wilson 65
Provincial lnsurar.ce Co. r. Worts 65
Pryce v. Monmouthshire Ry 282
Pullman Car Co. v. Sise 357, 360
" " 7>. Gardner 357
" " 7'. Lowe 357, 360
Pulbrook v. Richmond Consol. Mining Co 19
Pym v. Great Northern Ry 323
Quebec Cent. Ry. v. Lortie 325, 375, 377
Quebec Fire Assurance Co. v. St. Louis 414
Quebec &• Richmond Ry. Co. v. Dawson 58, 63
Quebec Warehouse Co. r. Coiporation Town of Levis 92
Queen — See Regina.
Rae v. Grand Trunk Ry 397
Hartleys1. L. d- N. W. Ry 368
Railroad Co. v. Lockwood , , . . 343
" v. Jones 331
Railway Publishing Co. re 88
' ' Sleepers Supply Association in re 65
" Company* v. Sprague 113
Co. v. Hale 421
" v. Reynolds 421
" 7'. Henry 421
" v. Kennedy 421
" 7'. Lehman 422
Commissioners of Manitoba &> Red River Valley Ry. Co. in
re 265
Ralph v. Great Western Ry 288
Ramsden v. Boston &> Albany Ry. Co , 29
Ramsgate, etc. , Co. v . Montenore 37
Ranee's Case .... 71
Ranger v. Great Western Ry 226, 227
Raphael i'. 'I hames Valley Co 233
Rascony v . Union Navigation Co 36
" Woollen Co. f. Desmarais 39, 63
Rastick v. Great Western Ry 385
Ravary v. Ontario d^ Quebec Ry 75
Ray v. Blair 54
Reburn v. Ontario &•= Quebec Ry 212
Rector & Churchwarden of St. George's Parish -c. King 210
Redhead v. Midland Ry 323, 326
Redfield^. Corporation of Wickham 102.103, 122
Redmayne ?'. Great Western Ry 418
Reedie v. Lon. &> N. \V. Ry 235, 366
Kegina v. Phaneuf 287
" v. Brownell 386
v. McLeod 329
v. McGreevy 228
7'. Great Western Ry 255
7'. Grand Trunk Ry 246, 251
v. Vezina 256, 257
v . Barry 1 79
v . Cambrian Ry 185
v. Carrier 158, 160, 176
•v. Chester 85, 166
v . Coaks i$
INDEX TO CASES. xxix
Regina v . Eastern Counties Ry . Co 179
" v. G. T. Ry 82
" v. Gasharth 22
" v . Great North Western Ry 184
" v . Hungerford Market 1 84
" -v . Lambourne Valley Ry 45, 47
" v. London Dock Co ,. j 84
" v . Malcolm 179
" v. McCurdy 177
" v . Paradis 184, 2^5
" v. Poulter 185
" v. St. Luke's 179
" v. Tewkesbury 1 8
" v. Thames &° Isis Navigation Co 47
'* v. Train I
" v. Vaughan 1 84
Reist v. Grand Trunk Ry 259
Renaud v. City of Quebec 24 7, 269
" v. Great Wes'ern Ry 406
Rennie v. Northern Ry 307
Rex v. Pease 85, 1^6
Rhodes v . Starnes , 26
Richards v. I.ond., Brighton & S. C. Ry 350
Richardson v. Can. Pac. Ry 319, 320, 322
" Spence 6° Co. v. Rountree 344, 361
Ricket v. Metropolitan Ry 82, 180, 184
Rigby v. Hewiit . 411
Richards v. London, Brighton 6° S. C. Ry 1 350, 353,
Richelieu 6° Ont. Nav. Co. v. St. Jean 388, 390, 392, 393
Rimmer v. London 6° N. W. Ry 411
Rishton Local Board v. Lan. York. Ry 277
Roach v. Can. Pac. Ry , 307
Roberts v. Great Western Ry 268 •
Roberge v. North Shore Ry 232
Robertson v. Grand Trunk Ry 298
" v. Halifax Coal Co 383
Rohichaud v. Can. Pac. Ry 306
Robinson v . Chartered Bank 43
" v. C. P. Ry 365
" v. N. B. Ry 416
Robson v. Hooker , 344
" v. N. E. Ry 334
Rocheleau v. St. Lawrence 6° All. Ry 262, 403
Rock v. Denis 289, 364, 382
Rogers v. Great Western Ry 307
Rogers v . Hersey 36
Rogers v . Laurin , 40, 54
Root v. Sleeping Car Co - 358
Rose v N. E. Ry 334
Rosevear China Clay Co. Ex parte . ... $16
Ross v. Can. Agricultural Insurance Co 39, 54
" v. Converse 64
" v. Dusablon 56
" v. Fiset 16, 43, 56
" v. Langlois 390, 392
" v. Worthington 43, 56-
xxx THE RAILWAY LAW OF CANADA.
Roulx i'. Grani Trunk Ry 399
Howe 7'. McEwan 292
Roy 7p. Champlain &* St. Lawrence Ry 148
" 7-. Q. M. &C. Ry 74
" 7'. Grand Trunk Ry 368, 369, 374
Royal Institution for the Advancement of Learning r. Desriviere* .... 21
Ruck v. Williams 328
Rushforth v. Hadfield 292
Rutherford zp. Grand Trunk Ry . < 293
Ruthven v. Ruthven 150
Ryan v. M. &> C. Ry 28
" 7'. Canada Southern Ry 393
'• 7'. N. Y. Central Ry 410
Ryder 7'. Woombwell 335 j 3?o
Ryland 7'. Delisle 60, 61, 62, 63
' ' 7'. Fletcher 85
" '» -Ostell 54, 55
" 7'. Routh 16
Salter 7'. Utica 6° B. Ry 384.
Samson v . The Queen 176
Sanche v . Canadian Pacific Ry ^4, 180
Sandys ex parte _ 88
Santa Barbara Mining Co ex parte 49
Sarault v. Viau 374
Scarlett v. Great Western Ry . . . . 321
Scottish Amer. Invest. Co. v. Prettie 213
Sene'cal v. Hatton 423
Senesac v. Central Vt. Ry 417
Seymour v. Sincennes 296, 312
Scott ?'. Railway Commissioners 175
" 7'. L. &= St. K. Docks Co 370
' ' v. Midland Ry 273
" 7-. Grand Trunk Ry 210
Seminary of Ste. Thgrese v. C. P. Ry 190
Senior r. Metropolitan Ry. Co 161
Serandat v. Saisse 32
Shakleford's Cas-.; 40
Sharp 7'. San Paulo Ry 227
Shattuck v. Stoneham Branch Ky 155
Shaver v. G. W. Ry 258
Shaw v. C. P. Ry 361
" 7'. Ry. Co 422
'•' 7'. Boston &> W. Ry 383
Sheffield & Manchester Ry. Co. i\ Woodcock 22
Sheerman 7'. T. G. £° B 31, 329, 330
Shelfer r. City of London Electric Light Co. , 168, 170
Shelton v. Lake Shore &•» Mich. South Ry 286
Shephard v . Bristol &• Exeter Ry 320
Sherman v. Toronto, Grey &* Bruce Ry 31
Shoebrink v. Can. All. Ry 38 2
Shiopshire Union Rys. <S° Canal Co. v. The Queen 47
Siner e^ Wife v. Great Western Ry 334, 368
Singleton f. E. C . Ry 369
Sise 7-. Pullman Car Co 357
Simoneau 7-. The Queen 239, 242, 244
Simpson v . Molson's Bank 49
INI>EX TO CASES. xxxr
Simpson 7'. Great Western Ry 404
« 7>. London & N. W. Ry 422
" 7'. Ottawa &= Frescott Ry 130
Sisson 7'. Ry. Co 42 1
Slater r. Can. Cent. Ry 216
Slim 7.'- G. N. Ry. Co 30, 314
Sneesby T. I,ancashire & Yorkshire Ry 366
Smiths'. All. & N. W. Ry 258
Smith v . Can. Car Co 43
7'. L. &> S. W. Ry 366, 410
v. N. Y. &* H. R. Ry 386
?'• Baker 39', 392, 393
7'. Darley 22
?'. Hall Glass Co 32
?'• Lynn : 59, 67
7'. Port Dover &= Lake Huron Ry 132
7'. Spencer 39
Societe" de Construction d'Hochelaga v. Socie~le de Const. Metrop. .21, 33
Somerville Ry. Co. v. Doughty . 186
Solway Jet. Ry. v. Caledonian Ry 279
Soule 7'. Grand Trunk Ey 255
South of Ireland Co. 7>. Waddle .119.
" Caroline Ry. Co. r. Tyson 422
" Wales Ry. Co. v. Wythts 233
South Eastern Ry. Co. 7'. Gouvrement 150
Southein Express Co. v. Louisville & Nashua Ry 280
Spettigue r. Great Western Ry , 307
St. Catharines v. Niagara Central Ry. v. Barbeau 8
St. Denis T'. M. 6° O. Ky 199, 200
" v, M. <S° O. Ry 195, 199, 200
St. John 7'. Erie Ry. Co 69
St. Lawrence Sugar Ref. Co. v. Campbell 377, 388, 390
" er* Ottawa Ry. Co. 7'. Lett 425
St. Louis, etc., Ry. Co. v. Southern Express Co 281
St. Stephen's Branch Ry. Co. v. Black 66
Stapley 7'. L. B. 6- S. C. Ry 366
Standard Fire Ins. Co (Caston's Case) 55
Stanstead &= Connecticut Ry. Co. v. Brigham 40, 41
Stanton v. Can. Ail. Ry 226
Stranton Iron &> Sieel Co , 43
Starke r/. Burke 128
Slarnes 7'. Molson 194
Steam v. Pullman Car Co. ... 357, 359
Steel 7-. S. E. Ry 235
Steinhoff v. Corp. of Kent ." 382
Steinweg 7'. Erie Ry. Co 326-
Stockpoit Case 174
Stebbing v. Metropolitan Ry. Co 175.
Stephen 7'. Banque d'Hochelaga 103
" 7'. Chauss6 371
Steven 7'. London Steel Works Co. (Delano's Case) 57
Stevens v. Davidson 128
Straits of Canso Mar. Ry. Co. v. The Queen 174
Stratford 6° Moreton Ry. Co. v. Stratton 64
Streetsville Plank Road Co. v. Hamilton & Toronto Ry 255
Stimpson v. The New England &1 Nova Scotia S.S. Co 352
XXXIT THE RAILWAY LAW OF CANADA.
Stokes v. Eastern Counties Ry 323
" z-. Saltonstall 323
Stoker t-. Welland Ry 332
Stubley v. London & N. W. Ry 380, 384
Studer z<. Buffalo 6° Lake Huron Ry 262
Sulphur &= Copper Co. v. McElroy 228
Sutherland r. Great West. Ry 342
Talley v. Great Western Ry , 349
Tate v. Port Hope Ry 232
Tattersall v. Nat. St. Co 314
Taylor v. Chichester &> Midland Ry. Co 79
Taylor v. Ont. d^ Que. Ry 212
Tench v. Great Western Ry 28
Ttssier r. Grand Trunk Ry 352
The New World r. King 323
Therrien r. Mori ice 374
Thibaucleau v. City Pass. Ry. Co 31
" v. Moit. St. Ry 289
Thol T. Henderson 421
Thomas v. Geldert 283
Thompson r. The Victoria Ry. Co 113, 114, 115
T'. Grand Trunk Ry 404, 406
" T. Great Western Ry 252
" Midland Ry 341
Can. Central Ry 217
Toms v. Corp. of Township of Whitby 289
' ' r. Township of Whitby 382
Thornton v. Wash. Savings Bank 125
Time Tables Publishing Co. (Welton's Case) in re 68
Tiverton & N. Devon Ry. Co. v. Loosemore 74
Todd v. Met. Dist. Ry. Co 187, 238
Toledo Ry. Co. v. Rodriguez .... 27
" & Can. Southern Ry. Co. i\ Elder 403
Toltoiny. C. P. Ry 187, 238, 244
Toomey r. London dr5 Brighton Ry 402
Toronto Belt Line Ry. Co- r. West. Can. L. e° S. Co 143
" v. Lauder 9
" in re 214
Toronto d-= Lake Huron Ry. v. Crookshank 64
" Gas Co. i\ Russell 64
Toronto Ry. Co. v. Grinned 289, 342, 365
Torpy z'. G.T.R 31, 329, 330
Torrance r. Allan 303
" T. The Richelieu Co. 351
Tower v. The Utica &* Shenectady Ry 35 1
Townsend r. N. Y. Cent. Ry 286
Township of Brock v. Toronto d-> Nipissing Ry in, 269
Trade Aux. Co. r. Vickers 126
Traversey i\ Gloucester 250
Tremblay z1. Chicago d° St. Louis Ry 210
" v. Tremblay 150
T raster v. C. P. Ry 312
Trimble v. Hill 166, 275
Trottier r. Red River Transp. Co 291
Troy d- Boston Ry. Co. z-. Lee 186
Trust d-= Loan Co. of U. C. v. City of Hamilton in, 112
INDKX TO CASES. xxxm
Turpin's Case 88
Tuiquand v. Marshall 25
Twohey r. Great South &° Western Ry. Co 179
Tyre r. Wilkes 53, 54
Tyson's Reef. Co. in re Ill
" v. G. T. Ry 406, 407
Union Nav. Co. v. Couillard 36
United States v. New Orleans Ry 106, 107
Utter v. Great Western Ry 187, 238
Van Allan v. Grand Trunk Ry 253
Vanderwerker v. Vt. Cent. Ry 228
Vanhorn v. G. T. Ry 187, 238, 243, 269
Vaughan v. Tafif Vale Ry 85, 166, 408, 414
" v. G. T. Ry 187
Venezuela Ry. Co. v, Kisch 58
Vernon v. G. T. Ry 262
Vezina v. The Queen 174,175,256, 258
Vickers Express Co. v. C. P. Ry 280, 28 1
Victorian Ry. Commrs. v. Coultas 289
Victorian Ry. Commissioners v. Coultas 364
Vineberg v. Grand Tiunk Ry 321, 353, 355
Vital v. Tetrault 376
Vogel v. G. T. Ry 297, 300
Vulcan Iron Works re . 88
Wade z>. C. P. Ry -.12
Wadham v. N. E. Ry 179, 184
Waite v. N. E. Ry 369
Wallace v. Great Western Ry. Co 93
" v. G.T. Ry 187,238,239, 244
Wallbridge v. Farwell 105, 106, 108, 122, 133
Walker v. Great Western Ry. Co 27
Walker v. Old Colony Ry 239
Walters v. C. P. Ry 319, 321
Ward's Case 37
Wai d i'. Great Western Ry 255
" ?'. Ry. Co.... , 421
Ware v, Carsley 372
Warner v. Mower 22
Warren v. Fake 126
Warring v. Manchester, Sheffield &° Lincoln Ry 227
Washbourne v. Canada Car Co 222
Wason Mnfg. Co. v. Levis &° Kennebec Ry 102
Washbuin i< . Milwaukee Ry 155
Waterous Engine Works v. Corp. of Town of Palmersion 222
Watkins v. Great Northern Ry. Co 1 88
Watling v. Oaslter 366
Watson v. Northern Ry 332> 425
Webb T'. Rome, Watertown 6° Ogdensburg Ry 410
Weed v. Panama Ry 315
Weetjen v. St. Paul & Pacific Ry 120
Weirz'.C.P. Ry 384, 385
Welch v. Baker 12, 52
" v. Lond. d- N. W. Ry 352
Welleans v. Can. Southern Ry 413
Wells v. Kilpin 1 24
" v. Northern Ry. Co 185
xxxiv THE RAILWAY LAW OF CANADA.
Westbourne Cattle Co. v. The Man. &> N. W. Ry 260
Western's Case 43> 44
Western Cumberland Iron Co.r. Winnipeg 6° II. B. Ry 117, 118
White v. City of Montreal 377
Whitfield v. A. 6° North Western Ry 197, 249
Whitman v. Western Counties Ry 267, 3 1 3
Whitman v. W. &> A. Ry. Co 406
Whitney r. Pullman Car Co 358
Whitworth r. Gaugain 126
Wickhamz.'. N. B. & C. A. Ry 103
Widder v. Buffalo 6° Lake Huron Ry 190, 196, 210
Wilcox w. Rome, W. <Sr» O. Ry 384
Wilkes v. Gzowski 191
Williamson v. Giand Trunk Ry 289
Williams v. Roblin 201
" i>. Great Western Ry 366
Williamson's Administrators v. W. C. V. M. £° G. S. Ry 135
Williamson v. N. J. Southern Ry 106
Wilson ex parte. 88
" v. Graham 140
" v. Ginty 36,41,54, 55
" v. Wilson 20
" r.B.d-O.Ry. 358
" T. Newpoit Dock Co 368
" v. Giand Tiunk Ry 372
" v. Northern Ry 399
" v. Lancashire & Yorkshire Ry 418, 422
Wilton v. Northern Ry 384
Windsor Hotel Co. v. Date 36
' ' " r. Lewi.; 39, 54
Winkler v. Great Western Ry 384
Winnipeg &= Hudson Bay Ry. Co. zp. Mann loo, 1 16, 231
Witheily r. Rigent Canal Co 368
Wilheis 7'. The Noilh Kent Ky 328
Wood T. Htoui bridge Ry 179
" v. Atlantic o° Noith Western Ry. 166, 169, 171, 174, 185, 195, 204
" *-. S.K. Ry 323, 328
" v. All fr N. W. Ry 185, 195, 204
" v. Stourbridge Ry 179
" Out . &= Que Ry 223, 224
Woodhill 2'. Gieat Western Ry 31
Woodruffs. Harris 42
" r. Corporation Town of Peterborough 54
" f.G.W.Ry 342
Woodward v. Allan 346
Worce>ter Corn Exchange in ;v IH
Wiighl 7'. Midland Ry 323, 326
W) alt v. Senecal .... 96, 120
'•' v. Daienth Valley Ky. Co 6l
" v. Levis &° Kenr.ebtc Ry I lo
Yeomans v. Corporation of Co. of Wellington 165
York c^ Midland Ry. Co. "<-'. Hudson 24
" dr5 North Midland Ry. Co. v. The Queen 259
Young v. C. P. Ry . Co ; 30, 3 \^
Zabiiikie v. Cleveland, Columbus <£° Ohio Ry. Co no
Dimmer v. Grand Trunk Ry 7, g
Zimmer ?'. Grand Trunk Ry 268
A TREATISE
OX THE
Railway Law of Canada.
CHAPTER I.
INTRODUCTORY,
1 . 7 he fra n ch ise.
2. federal and Provincial Acts.
3. Who may construct and operate
railways.
5. Special and general Acts.
6. Constructed or to be constntcted
under the authority of any Act
passed by the Parliament of
Canada .
7. Provincial Legislation may be
4. Questions of jurisdiction. '' '
8. Effect of Sec. 306 of The Kail-
way Act.
1. Railways in this country exist exclusively in virtue of legis-The fran*
lative authority, and are invariably constructed and operated bychise<
incorporated companies subject to statutory conditions and limit-
ations.
It is true that it has been held in England and the United
States that any individual may construct and operate a railway,
either upon his own land, or that of others with the owner's con-
sent; but he does so at his own risk, and is liable not only civilly
for all damages and annoyance caused to his neighbors by the
construction and operation of the railway and the noise and
smoke of trains, etc., but criminally by indictment for creating a
public nuisance, (i) We must therefore conclude in the lan-
guage of Crompton, T., in Reginav. Train, (2) that "the
legal carrying out of such a scheme can only be effected by auth-
ority of Parliament." In other words, the legislative authority is
required to protect railway companies from the consequences
(I) Regina v. Train, 3 F. & F. 22. (2) 3 F. & F. 22.
2 THE RAILWAY LAW OF CANADA.
of the doing of that which would otherwise amount to a public
nuisance.
In this country then we may safely say that railways can be
legally constructed and operated only under the authority and
powers granted by the Legislature.
Federal and JJ. It may be convenient to point out here what railways come
under the jurisdiction of the Federal, and what under that of
the Provincial, Legislatures.
Companies whose authority to construct and operate a rail-
way is derived from the Parliament of the Dominion, with the
exception of government railways, are subject to the provisions
of the Dominion Railway Act, (i) and all railways which have
been declared by Act of Parliament to be works for the general
advantage of Canada, and all railways crossing or connecting
therewith, are also subject to the provisions of that Act, (2) with
the exception of those provisions relating to the organization of
the company, meetings of shareholders, capital stock, payment of
dividends, etc., and internal economy generally. (3) The Act
at present in force is that passed in the month of May, 1888,
known as "The Railway Act, 51 Vic., Chap. 29"; and the
provisions referred to are contained in sections 32 to 89 respec-
tively. These provisions may be made applicable to any rail-
way within the legislative authority of Canada, by order of the
Governor-in-Council, upon application after public notice in the
Canada Gazette. (4) Railways which are constructed and oper-
ated under authority granted by the Legislature of any of the Pro-
vinces, and which have not been declared by Act of the Federal
Parliament to be works for the general advantage of Canada, are
under the control of the Legislatures of the Provinces, and are
subject to the provisions of the Provincial Acts. It is unneces-
sary to specify the different railways which are subject to the
authority of the different Legislatures, but there might be men-
tioned as instances the Intercolonial Railway, the Grand Trunk
Railway, and the Canadian Pacific Railway, as having been de-
clared to be works for the general advantage of Canada, and being
subject to the legislative authority of the Dominion Parliament ;
(1) The Railway Act, 51 Vic., c p. 29, sees. 3 and 5.
(2) The Railway Act, sec. 306. (3) Ibid, sec. 5.
(4) The Railway Act, sec. 7.
INTRODUCTORY. 3
(i) while purely local roads, within the limits of any one Province,
and which do not connect with or cross such roads as those
above mentioned, are subject to the authority of the Provincial
Legislatures. It is provided in addition by sec. 4 of The Railway
Act, that all provisions of the Act relating to any matter within
the legislative authority of Canada shall apply to all railways,
whether otherwise within the legislative authority of the Federal
Parliament or not. The section specifies as examples all provi-
sions relating to the crossing and junction of one railway with
another, offences, and penalties, and statistics. The Provincial
Railway Acts also contain provisions on these subjects, and there
would here appear to be a conflict of legislative jurisdiction. It
is not, however, within the scope of this work to consider at any
length constitutional questions, except in so far as they may
arise incidentally in connection with any particular point that
may need to be discussed. For the present, therefore, it is pro-
posed to pass over such questions and to consider the Statutes
under which railways in this country exist and are carried on,
and where we find a clashing of Federal and Provincial legisla-
tion, to discuss the constitutional questions as they arise.
In so far as concerns the incorporation of railway companies,
their subsequent organization, their powers, their operation and
their rights and liabilities, the references will be generally con-
fined to the Dominion Railway Act, which is the most impor
tant, not only in that its provisions govern most of the railways
in this country, but inasmuch as Provincial legislation has hither-
to been framed, generally speaking, on the lines of the Dominion
Act. References to the Provincial Acts will be limited to those
points on which they differ in some essential feature from the
Dominion Act. (2) The first questions to be considered are as
to who can construct and operate railways, and what the law
requires should be done by them before they can commence
construction and operation.
3. First, as to who may constructor operate a railway. In Who may con-
this country, as a matter of practice, railways are entirely con- s ™ct ~n °Pe"
structed and operated by incorporated companies. According
to the interpretation clause of The Railway Act, the word " com-
(i) The Ry. Act, sec. 306. (2) For further differences see Appendix.
4 THE RAILWAY LAW OF CANADA.
pany " includes any " person " having authority to construct or
operate a railway ; (i) but a perusal of the Act would lead one
to believe that the Legislature never intended that any natural
person should be authorized to construct and operate a railway
for public business ; though in certain particular instances rail-
ways may be operated by persons not having corporate powers
nor special legislative authority, under certain restrictions and
for a limited period of time. For instance, it is provided by the
Act that if a railway should be sold under any lawful proceed-
ing, and purchased by any person or corporation not having
legislative authority to hold and operate the railway, the pur-
chaser may operate such railway and collect tolls and fares for
the carriage of goods and passengers, just as the company pre-
viously operating it could have done, subject to the restrictions
and conditions provided by the Act. (2) With this exceptioa it
may be said that all railways in this country are constructed and
operated by incorporated companies.
4. In the Provinces, if the railway is for provincial purposes
Questions of , , . ,. , , ,. . , ,. „ .
jurisdiction. onvi and is confined to the limits of the Province, the companies
are incorporated by Act of the Provincial Legislature, and they
are governed by the provisions of the special Act incorporating
them, and the general provisions of the Provincial Railway Act,
in so far as they are not excepted by the special Act. On the
other hand, railways which connect one Province with any other
or others of the Provinces, or which extend beyond the limits of
the Province, are subject to the exclusive jurisdiction of the Do-
minion Parliament and to the provisions of the Dominion Rail-
way Act, (3) except in so far as those provisions may be ex-
cepted by the special Act incorporating the company, and this
can be done by enacting in the special Act that the sections of
the general Act proposed to be excepted shall not be incorpor-
ated in the special Act. Also all railways, which, though wholly
situate within the Province, are, before or after their construction,
declared to be for the general advantage of Canada or for the
advantage of two or more of the Provinces, are subject to the
(1) Sec. 2 (a >.
(2) 8605.278-280. There is no such provision contained, however, in the
Provincial Acts, and the purchaser of a local railway would have to apply
to the Legislature for authority before he could operate it.
(3) B. N. A. Act, sees. 91, 92, § 10 («)•
INTRODUCTORY. 5
exclusive jurisdiction of the Dominion Parliament, (i) but are
not subject to sees. 32 to 89 of The Railway Act, unless con-
structed under the authority of an Act of the Dominion Parlia-
ment, or unless these sections are made specially applicable to
the particular railway or company in the manner provided by
The Railway Act. (2) There here arises an apparent difficulty
as to the jurisdiction of the Local and Federal Legislatures in the
case of a local railway declared to be for the general advantage
of Canada, or crossing or connecting with a railway under the
Federal authority. Sub-section 10 (c~) of section 92 of the
B. N. A. Act would seem to bring the two jurisdictions into
direct collision. • A railway company incorporated under a local
Act, and fora purely local purpose, is within the exclusive juris-
diction of the local Legislature ; but as soon as the railway is
declared to be a work for the general advantage of Canada, it
comes under the Federal jurisdiction. What then becomes of
the special and general local legislation affecting such railway ?
In the Dominion Act of 1883, (3) as amended, it was specially
provided that : " Nothing in this section shall in any way affect
or render inoperative the provisions of any Act of a local Legis-
lature heretofore passed, authorizing the construction and run-
ning of any such railway or branch line " (i.e., railways or branch
lines crossing or connecting with railways under Dominion au-
thority), " or any act amending the same ; but hereafter the same
shall be subject to the legislative authority of the Parliament of
Canada." Even the Act containing this section was open to
some doubt on the subject, as seen in the case of Corp. of St.
Joseph v. Quebec Central Railway. (4) This was the case of
a local railway brought under Federal jurisdiction by crossing
the Intercolonial Railway ; and Ramsay, J., held that the provi-
sions of the local Act of 1880 (Que.) with regard to penalties
for obstructing highways were not abrogated in the case of this
railway by the Dominion Act, but remained in force, and ap-
plied to the railways for which it was framed and of whose char-
ter it was part. However, this holding may be said to be obiter,
inasmuch as the point decided by the Court was, that under
either the Dominion or the Quebec Act, a justice of the peace
(i) B- N. A. Act, sec. 92, § 10 (<:). (2) Sees. 5, 7.
(3) 46 Vic., ch. 24, sec. 6, ss. 2. (4) n Q. L. R. 193.
6 THE RAILWAY LAW OF CANADA.
had jurisdiction to hear and decide a complaint against a railway
company for obstructing a highway. But in the Revised Statutes
of Canada and the present Act of 1888, the above subsection
was changed, and now reads as follows : (i)
" Every such railway and branch line shall hereafter be sub-
ject to the legislative authority of the Parliament of Canada ;
but the provisions of any Act of the Legislature of any Province
of Canada, passed prior to the 25th May, 1883, relating to any
such railway or branch line, and in force at that date, shall re-
main in force so far as they are consistent with any Act of the
Parliament of Canada passed after that date."
Special and 5. The effect of this clause in deciding as to what statutory
general Acts, enactment would apply is open to some doubt in many instances,
and so far the jurisprudence has not thrown much light upon the
subject. For instance, it is customary to include in the Act of
incorporation the whole or a large part of the general Act by
which the railway will be governed, and unless excepted by the
special Act the general Act of the Province in which the line is
to be constructed (if a local work) is made to apply to the railway
company seeking incorporation, and is expressly declared to form
part of the special Act and to be construed therewith as form-
ing one Act. (2)
Suppose the case of a local railway, incorporated by a Pro-
vincial Statute, and having the provisions of the Provincial
Railway Act incorporated in its charter, being declared a rail-
way for the general advantage of Canada. The difficulty is to
decide whether and to what extent the provisions of the Provin-
cial Act would remain in force and apply to such railway. Ac-
cording to sec. 307 of The Railway Act, such provisions as were
in force prior to 25th May, 1883, would remain in force so far as
they would be found to be consistent with any Act of the Domi-
nion passed after that date. And it would be for the courts to
decide whether they were consistent or not.
Again, special provision is made by sec. 6 of The Railway Act,
that if in any special Act it is provided that any provision of any
general railway Act, in force at the time of the passing of the
special Act, is excepted from incorporation therewith, or if the
(1) Sec. 307 Ry. Act, 1888.
(2) See Quebec Ry. Act, 1880, ch. 43, sec. 2, sub-sec. 2-
INTRODUCTORY. j
application of any such provision is extended, limited, or quali-
fied, the corresponding provision of The Railway Act shall be
excepted, extended, limited, or qualified in like manner, (i)
It would seem from the language of this section that if there
were no provisions in the present Act corresponding to the thus
extended, limited, or qualified provisions of the former general
Act, the latter provisions would stand. But it is to be regretted
that the language of the statute is not more explicit,
Cases have arisen before our courts where these questions
have been discussed or touched upon, with the result that some
of the light of jurisprudence may be thrown upon the subject.
For instance, the question recently came before our courts as
to whether the Grand Trunk Railway Company was obliged to
construct a farm crossing for each subdivision of a lot of land,
and the point was raised as to whether the relevant clauses of
The Railway Clauses Consolidation Act (2) or those of the pre-
sent Act applied.
The Grand Trunk Railway Company was incorporated by 16
Vic. (1852), ch. 37. At that time The Railway Clauses Consolida-
tion Act (3) was in force, and by section 2 of the Grand Trunk
Railway Act of Incorporation, it was specially enacted that cer-
tain sections of The Railway Consolidation Clauses Act should
be incorporated with the special Act. It was held that the
relevant sections of the Consolidation Act applied ; (4) but, as
Bosse, J., remarked, " as the charter required the company to con-
struct farm crossings, it is unnecessary to discuss the subsequent
general statutes." (5)
In Zimmer v. Grand Trunk Railway, (6) the question came
up in the Divisional Court as to whether, supposing for argument's
sake that the original " Railway Clauses Consolidation Act "
had been repealed, the Grand Trunk Railway Act, (7) not hav-
(1) 15 y the Act incorporating the Can. Pac. Ry Co., 44 Vic., cli. I,
the provisions of the Conso'idatedRy. Act of 1879 are made applicable to the
building of the Can. Pac. Ry. Co., in so far as thev are not inconsistent with
or contrary to the said Act of Incorporation. C. P. R. Co. v. Major, 13 S. C. R.
233, 9 L. N. 410, 1887.
(2) 14 & 15 Vic., c. 51. (3) 14 & 15 Vic., c. 51.
(4) Cie du Grand Tronc z>.Huard, I R. J. Q. 501 (Q. B.).
(5) Ibid., p. 508.
(6) 21 O.R. 628, confirmed in appeal, but on .different grounds by 19
Ont. App. 693. (7) 16 Vic., cap. 37.
8 THE RAILWAY LAW OF CANADA.
ing been repealed, those clauses of the Consolidation Act which
were incorporated in it were not thereby repealed.
Robertson, J., admitted that as a general rule this contention
could be upheld, but found in the particular Act a special pro-
vision whereby Parliament had reserved to itself the right to
amend or enlarge any of the clauses which by the special Act
incorporated therewith any of the clauses of the general Act. (i)
In appeal this point was not decided, but Mr. McCarthy, Q.C.,
and Mr. Nesbitt for the Grand Trunk Railway maintained that
the Consolidated Statutes of Canada (1859) did not repeal the
clauses of 14 and 15 Vic., c. 51, but re-enacted them. (2)
It is somewhat difficult to arrive at a conclusion from the
foregoing, but the following is suggested by the author : Section
307 of The Railway Act lays down a general principle, that all
Acts of Provincial Legislatures relating to the now Dominion
railways (as we may call them for convenience), enacted prior
to 1883, are to remain in force so far as they are consistent with
any Dominion Act passed after that date; but under sees. 5
and 6, even when the Provincial legislation prior to 1883 does
conflict with Dominion legislation passed after that date, if such
Provincial legislation is incorporated in the company's charter,
the same must prevail as against the provisions of The Railway
Act. And where the provisions of the Provincial general Act
have been excepted, extended, limited or qualified by the special
Act, the corresponding provisions of the Dominion Act shall be
excepted, extended, limited or qualified in like manner.
Finally, the whole is subject to any express provisions of the
special Act. (3) When a company is incorporated by a special
Act, and there are provisions in the special Act as well as in the
general Act on the same subject which are inconsistent; if the
special Act gives in itself a complete rule on the subject, it
would seem that the expression of that rule amounts to an excep-
tion of the subject matter of the rule out of the general Act. But
when the rule given by the special Act applies only to a portion
(O 21 O. R. 632.
(2) See C. S. C., ch. 66, sec. 83 ; schedule B, p. 1227. In the revision of
1886, C. S. C., ch. 66, was preserved, nor was it repealed by the Act of 1888.
Zimmerz'. G. T. R., 19 O. A. R. 695.
(3) Sec. 3, and see Re St. Catharines & Niagara Central Ry. Co. v. Bar-
beau, 15 O. R. 583.
INTRODUCTORY. 9
of the subject, the special Act may apply to one portion and the
general Act to the other. And the probable intention of the
Legislature is important in considering such a question, (i)
6. Some doubt has arisen as to the interpretation of the phrase Constructed
" constructed or to be constructed under the authority of any or tot bf ca?"
structed under
Act passed by the Parliament of Canada, used in sec. 5 of the authority
the Act. In an Ontario case, (2) a company was incorporated of any Act
by the Ontario Legislature, and by an Act of the Dominion Parli- pariiament of
arnent the Governor-in-Council was authorized to grant a sub- Canada,
sidy to the company ; and by another Act of the Dominion Par-
liament, the company's railway was declared to be a work for
the general advantage of Canada, and the company was author-
ized to build a branch line. No further powers of any kind
were conferred upon the company by the Dominion Parliament.
It was held that the effect of the declaration, that the work was
a work for the general advantage of Canada, was to bring it
under the exclusive legislative authority of the Parliament of
Canada, but that the Acts of the Ontario Legislature previously
passed were in no way affected, that the railway in question was
not one •' constructed or to be constructed under the authority of
any Act passed by the Parliament of Canada," (3) and therefore
the sees. 4 to 39 of R. S. C. 109 (corresponding to sees. 32
to 89 of the present Act) did not apply to it. (4)
7. As affecting the controversy as to the position of Provincial Provincial
legislation with regard to railways subsequently coming under legislation
° . . may be con-
the Federal jurisdiction, it should be noted that provision is firmed.
made in section 308, whereby the Governor General may, by
proclamation, confirm such legislation in force before the passing
of The Railway Act, which then becomes as valid as if it had
been enacted by the Parliament of Canada.
8. The practical effect of section 306, declaring the leading Effect ofSec.
lines of railway to be works for the general advantage of Canada jPaij^a J[ct
as well as all other lines connecting with or crossing such lines,
is to bring, with few exceptions, most of the railways in Canada
(1) Ontario & Sault Ste. Marie Railway Co. v. The Can. Pac. Ry. Co., 14
O. R . 432, and cases there cited.
(2) JSeSt. Catharines & Niagara Central Ry. Co. v. Barbeau, 15 O. R.
583.
(3) R. S. C., cap. 109, s. 3.
(4) See also Toronto Belt Line ^.Lauder,i9 O. R. 607, and cases there cited.
io THE RAILWAY LAW OF CANADA.
under Federal jurisdiction, and, for financial reasons, it is now
found advisable to^obtain charters from the Dominion Parlia-
ment rather than from the^Provincial Legislatures.
CHAPTER II.
ORGANIZATION AND MANAGEMENT OF RAILWAY
COMPANIES.
INCORPORATION — OFFICES OF COM-
PANY— PROVISIONAL DIRECTORS
AND THEIR POWERS — CAPITAL,
ETC.
1. Powers -vested in corporations.
2. Limit of shareholders'1 liability.
3. Offices of the company.
4. Provisional directors and their
powers .
5. Moneys deposited to lit with-
drawn for certain purposes only.
6. Allocation of stock.
7. Capital stock and shares,
8. Application thereof.
9. first meeting of shareholders.
10. Notice thereof.
11. Election of directors .
12. How capital may be increased.
13. Votes of shareholders.
14. Who may hold stock in a rail-
way company.
CORPORATE MEETINGS.
15. Annual meetings and special
meetings.
1 6. Proof of proceedings at meetings.
17. Presumptions.
1 8. Interference of Court.
19. Special and general meetings.
20. Adjourned meeting.
2 1 . Irregular meetings.
DIRECTORS.
22. Election of.
23. De facto directors.
24. Qualification.
25. Vacancies.
26. President.
27. Meetings of directors, notice of.
28. Voting.
29. Directors subject to shareholders
and by-laws.
30. Disability of officers, contractors
and sureties.
Powers of directors.
Their position as tiustees.
Liability of.
Liability of company and
directors.
35 . Compensation of.
36. Liability of company for re-
ports of directors.
OFFICERS AND AGENTS.
37. General manager or superin-
tendent and other officers.
38. Libel.
39. Manslaughter.
40. Conductors.
41. Station agents .
42. Contractors,
43. Agents generally .
44. Acquiescence, ratification.
45. Notice.
1. Section 3 1 of The Railway Act provides that every com- Powers vested
pany incorporated under special Act shall be a body corporate,
vested with such corporate powers, privileges and immunities as
12
THE RAILWAY LAW OF CANADA.
Limit of
shareholders'
liability.
Offices of the
company.
are necessary to carry into effect the intention and objects of the
Act and the special Act, and which are incident to such corpora-
tion or are expressed or included in The Interpretation Act.
According to The Interpretation Act, (i) corporations have
power to sue and be sued, contract and be contracted with by their
corporate name, to have a common seal, and to alter or change the
same at their pleasure, and to have perpetual succession and hold
personal property or moveables for the purposes for which the
corporation is constituted, and to alienate the same at pleasure ;
and there shall also rest in any majority of the members of the
corporation the power to bind the others by their acts, and the
individual members of the corporation are exempted from per-
sonal liability for its debts or obligations or acts, provided they
do not violate the provision of The Act incorporating them.
£. The liability of a shareholder toward the creditors of the
company is limited by section 86 of the Act, to an amount equal
to the amount unpaid on the stock held by him, and until the
whole amount of his stock has been paid up ; but such liability-
does r.ot arise until an action has first been taken by the credi-
tors against the company, and, execution having issued, is returned
unsatisfied in whole or in part.
3. The special Act incorporating a railway company speci-
fies where the head office (2) shall be situated ; but the Board of
Directors may establish one or more offices in any other places
in Canada or elsewhere, (3) but the domicile or residence of the
company remains at the place fixed by its charter as the site of
its head office. (4)
(1) R. S. C., ch. i, sec. 7, No. 43.
(2) In Welch v. Baker (21 L. C. J. 97, 1876), it was held that man action
against a shareholder to recover the amount unpaid on his shares, the cause
of action arose at Montreal, where the company had its principal office, and
where judgment was rendered for the debt due by the company, and execution
was also issued, and not at Bedford, where the shareholder subscribed for
his shares.
(3) Sec. 32.
(4) A railway company being a corporation can only have one residence,
and that its head office. A railway company which has its head office out
of the Province of Quebec must give security for costs. Canada Atlantic Ry.
Co. v. Stanton, 11 L. N. 388 (1888), M. L. R., 4 S.C. 160.
ORGANIZATION AND MANAGEMENT OF RY. COMPANIES. 13
4. The special Act names the persons who are incorporated Provisional
:tors an
powers.
as a company, and appoints certain of them as provisional^^01
directors, of whom the majority form a quorum, and these pro-
visional directors hold office until the first election of directors,
and they open stock-books and procure subscriptions of stock
and receive payments on account of subscriptions.
5. Such payments are deposited by them in a bank, and Moneys depo-
these monies cannot be withdrawn, except for the purposes °f withdrawn f r
the railway, or upon the dissolution of the company, for any certain pur-
cause whatsoever. They also cause plans or surveys of the road poses only>
to be made, and they allot and apportion the stock among the
subscribers, (i)
6- If more than the whole stock has been subscribed, they Allocation of
allocate and apportion the authorized stock among the sub-st '
scribers, as they deem most advantageous and conducive to the
furtherance of the undertaking. (2)
7- The capital stock of the company, the amount of which Capital stock
shall be stated in the special Act, shall be divided into shares of *"
one hundred dollars each ;
8. And the money so raised shall be applied, in the first place, Application
to the payment of all fees, expenses and disbursements for pro-tnereof'
curing the passing of the special Act and for making the surveys,
plans and estimates of the works authorized by the special Act,
and all the remainder of such money shall be applied to the
making, equipping and completing and maintaining of the said
railway and other purposes of the undertaking. (3)
9. As soon as twenty-five per cent, of the capital has been First meeting
subscribed, and ten per cent, of the amount subscribed paid up, of snarebold-
they call a meeting of the shareholders at the head office of the
company,
10. Giving four weeks notice of the meeting by advertisement Notice there-
in the Canada Gazette, and in a local newspaper at the place ofp
where the head office is situated.
11. At this first meeting, the shareholders who are qualified Election of
elect the number of directors fixed by the special Act. (4) directors.
(i) Sec. 33. (2) Sec. 34. (3) Sec. 35. (4) Sec. 36.
14 THE RAILWAY LAW OF CANADA.
How capital \*£^ The original stock of the company may be increased, (i)
increased. w'ln tne approval of the Governor-in-Council from time to time,
to any amount, provided that the increase is authorized by a
vote of the shareholders who hold at least two-thirds of the sub-
scribed stock, at a meeting called for the purpose after special
notice as required by the Act. (2)
Votes of share- ^3 Each shareholder, as in other corporations, has a vote for
holders.
(i) Where there is evidence that the original nominal capital was never
paid in, the directors have no power to increase the stock of the company,
and as the stock held by the defendant consisted wholly of new unauthorized
stock, the plaintiffs, execution creditors of the company, whose writ had been
returned unsatisfied, could not recover by instituting proceedings by way of
scire facias against the defendant as holder of shares not fully paid up. Page
v. Austin, 10 S. C. R. 132.
The directors of an incorporated company, even when the Act authorizes an
increase of capital, have not the right to order such increase, if it be proved
that there are sufficient funds in hand, all debts paid, and if such inci'ease be
ordered simply to secure to the directors the control of the affairs of the com-
pany. Perrault r. Milot, 12 Q. L. R. 248, Q. B.
Held, affirming the decision of C. P. Div., Burton, J. A., diss : That the duty
of the Provincial Secretary in Ontario in issuing the notice of the increase
of the capital stock in an incorporated company, required to be given under 27
Vic., c. 23, s. 5, ss. 18, is merely ministerial, and that the requirements of
the Act being complied with, he has not any discretion in the matter, but must
issue the notice.
Held, also, that the power conferred of increasing the capital stock by
sub.-secs. 1 6, 17 and 18 of sec. 5, is a general power not limited to a single
occasion ; and Held, that there is nothing in the Act which makes a prior sub-
scription and payment of the new stock, or a part of it, a requisite to the
right of the company to have the notice published. In re the Massy Mnfg.
Co., 13 O. A. R. 446 (Court of Appeals). A company was incorporated under
27-28 Vic., cap. 23, with power to increase by by-law the capital stock of
the company so soon as, but not before, the capital was all allotted and paid
up. The plaintiffs, execution creditors of the company, whose writ had been
returned unsatisfied, intented proceedings by way of scire facias against the
defendant as holder of shares of the new increased capital sto ck .
Held, reversing judgment of the Court below, that the by-law passed by
the company being ultra vires, the alleged shares of the defendant had not
any existence in law, and therefore that the plaintiffs failed to establish that
the defendant was a shareholder within the Statute, and consequently they
were not entitled to recover. Page et al. v. Austin, 7 O. A. R. I.
(2) Sec. 37.
ORGANIZATION AND MANAGEMENT OF RY. COMPANIES. 15
each share held by him, (i) upon which all calls or amounts due
on the stock have been paid up, (2) and at least ten per cent,
must be paid up to qualify him. (3) Shareholders may, as in
other corporations, vote, not only in person but by proxy — that
is, by an authority or power of attorney given in the form or to
the effect prescribed by the Act to any other person to vote for
him at any meeting of the shareholders. (4) The Act does not
require, as in the case of most corporations and as required by
some special Acts, that the person representing the shareholder
should himself be a shareholder.
14. As to who may hold stock in a railway company, all Wno may
. ,..,.,. , , . . . , , . . hold stock in
individuals of course may do so, and it is provided by the Acta raiiway
that municipal corporations, provided they are empowered to company,
do so by the laws of their Province, may also hold stock. (5)
Under the statutory law of this country, corporations and
joint stock companies, generally, cannot hold stock in a rail-
way company, unless specially authorized to do so by their
charter ; (6) nor can any railway company, with certain named
(1) Where an election of directors in a joint stock company was clearly
illegal, the voters having been allowed only one vote, whereas each share
should have given a vote, but the parties had for more than eight months dis-
charged the duties, the Court refused to interfere by mandamus for a new
election.
Quaere, whether mandamus or quo ivarranto would be the proper remedy.
Moore -c. Port Bruce Harbour Co., 14 U. C. Q. B. 365.
In determining an application of a shareholder for an injunction, the Court
will look to the circumstances of the case, and adopt the course which is most
to the advantage of the whole body of shareholders. So where a shareholder
asked for an interim order to restrain persons from voting on certain shares, and
it appeared that the shares had been held by the defendants for more than a
year, the injunction was refused, more especially so as the petitioner had a
remedy by quo warranto if he were wronged by an illegal vote. Gil man v.
Robertson etal., 7 L. N. 60.
(2) Sec. 43. (3) Sec. 36.
(4) Sec. 44.
The powers of attorney in the hands of the shareholders were deposited
before the meeting with the secretary, who verified them and granted certifi-
cates. Held sufficient without verification of p oxies during the meeting.
Gilman v. Robertson and Royal Canadian Ins. Co., M. L. R., I S. C. 5.
(5) Sec. 38. — The obligation of a municipality to issue debentures in payment
of a subscription of shares is not to be regarded as equivalent to a mere obligation
to pay money ; in which case, by C. C. 1077, the damage resulting from delay
would consist only of interest from the day of default. La Corp de la Cie.
d'Ottawa v. The Q. M. O. & O. Ry. Co., 26 L. C. J. 148, S. C.; M. L. R., i
Q. B. 46 ; confirmed in Supreme Court, 14 S- C. R. 193.
(6) The Companies Act, 1886, 2 R. S. C., ch. 119, sec. 93.
i6
THE RAILWAY LAW OF CANADA .
exceptions, purchase its own stock or acquire of the stock, bonds
or securities of any other railway company in Canada, unless
specially authorized to do so by its special Act. (i) And the
directors are subject to heavy penalties for knowingly permitting
the funds of the company to be applied in violation of this pro-
hibition. (2)
Corporate Meetings.
Annual meet- jpj Tj A t provides for an annual meeting for the election
ings and spe- . .
cial meetings, of directors and the transaction of general business, also special
meetings to be called by the directors, or upon their failure for
21 days after request to do so, by shareholders representing at
least one-fourth in value of the subscribed stock. (3) And all
general meetings, whether annual or special, shall be held at the
head office of the company. (4) Four weeks notice is required
to be given of all meetings by advertisements published weekly
in the Canada Gazette and a local newspaper. (5)
No special meeting can enter upon any business not set forth
in the notice upon which it is convened. (6) At annual meetings
any business incident to the undertaking may be transacted,
provided it is not such business as is required by the Act or the
company's charter to be transacted at a special meeting. (7)
16. By section 45, it is enacted that all matters or things
proposed or considered at any meeting of the shareholders shall
be determined by the majority of votes and proxies then present
and given ; and all decisions and acts of any such majority
bind the company and are deemed the decisions and acts of the
company. Also by section 54, the acts of the majority of a
Proof of pro
ceedings at
meetings.
(i) Sec. 276, see Ross v. Fiset. 8 Q. L. R. 251. (2) Sec. 277.
(3) The calling of an annual meeting of a railway company is not a duty
specially appertaining to the office of president, The Railway Act, 42 Vic.,
cap. 9, making it the duty of the directors to call such meeting to be held ;
and Held, that when directors negleci or omit to perform such duty of calling
the meeting, the condemnation under C. C. P. 125, for failure to comply,
will be against the corporation and not against the directors personally.
Hatton t/."M. P. & B. Ry. Co., M. L. R., i S. C. 69(1884).
(4) Sec. 40. (5) Sec. 41. IVlilotz'. Perrault, 12 Q. L. R. 193.
(6) An individual shareholder in a railway company will not be entitled
to an injunction forbidding a special meeting of the company for the purpose
of sanctioning a lease of the road to another railway, until a meeting has been
called at which tVie accounts of the company have been submitted, unless
fraud by the majority, or corrupt influence have been proved. (Angus v . M.
P. & B. Ry. Co., 2 L. N. 203, 23 L. C. J. 161 (1878).
(7) Sec. 42.
ORGANIZATION AND MANAGEMENT OF RY. COMPANIES. 17
quorum of directors are binding, (i) The power of a majority
of the shareholders of a company incorporated by Act of Parlia-
ment is limited only by that act, unless the powers of the major-
ity are specially restricted in some other way. (2) By section 212,
copies of minutes of proceedings and resolutions at any such meet-
ings shall be evidence of such proceedings and resolutions in any
court, when certified to by the secretary as being true copies
extracted from the minute book. (3)
17. It is well settled that when a board of directors of a cor- Presumptions,
poration, formed for pecuniary profit, orders an act to be done,
and the act is subsequently performed, its legality cannot after-
wards be questioned by any stockholder or director, on account
of the irregularity of the meeting, if he made no objection at the
time, or afterwards when he had an opportunity to do so. (4)
18. The Court is very reluctant to interfere with the holding Interference
of meetings of shareholders, especially when they are called forof Gourt-
the purpose of investigating and controlling the conduct of the
managing body ; and the Court will not interfere to restrain such
a meeting simply because the notice convening it is badly framed,
and invites the meeting inter alia to pass resolutions which
would be invalid if passed ; for the meeting might take some
other legal course, e.g., pass some amended resolution which
would be valid. (5)
19. Apart from the business which is required, by The Railway Special and
Act or the special Act, to be transacted at a special meeting, one Seneral meet-
in^s
and the same meeting may be both general and special : general
for the purpose of transacting the usual business of the company,
and special for the transaction of some particular business, of
which special notice may have been given. (6)
(1) Where the quorum of directors of a railway company was fixed at three,
by a special statutory provision, and the company was subsequently amalgama-
ted with another company, and it was provided by the Act of amalgamation that
the board of directors of the amalgamated company should not be less than five
nor more than seven directors (without expressly changing or regulating the
quorum), the original provision making three directors a quorum continued in.
force. Fairbanks v. O'Halloran, M. L. R., 4 Q. B. 163 (1888).
(2) Lindley Comp. 315.
3 As to proof of calls, see page 64 infra, Note 7.
4) Wood Railway Law, 341.
(5; Lindley Comp. 304. See also Angus v. M. P. & B. Ry. Co., 2 L. N.
203 ; 23 L. C. J. 161 (1878) ; Oilman v. Robertson et al., 7 L.N. 60 ; page
15 su£ra ; Murphy v. La Cie.,etc., 16 L.C.R. 300.
(6) Lindley Comp. 308.
2
1 8 THE RAILWAY LAW OF CANADA.
Adjourned *JO. It is a general rule that corporate meetings may be ad-
journed ; and if a corporate meeting is regularly called, any busi-
ness that might have been lawfully transacted at the original
meeting may also be done at the adjourned meeting. But no
other business can legally be done at an adjourned meeting with-
out special notice, (i)
Irregular gl. When by the general or special Act provision is made for
the holding of annual meetings at a particular time, as the first
Monday in January, etc., it is treated as directory merely; and if
held at any another time, although irregular, it does not render the
elections void, and the directors elected at such meeting can
bind the corporation by their acts. (2)
If votes are cast for a candidate who is ineligible for the office
of director, they will not be thrown away, so as to elect a can-
didate having a minority of votes, unless the electors casting such
votes had knowledge of the fact on which the disqualification of
the candidate for whom they voted rested, and also knew that
the latter was for that reason disabled by law from holding the
office. (3)
Directors.
"Election of. £2. Section 36 provides for the first election of directors ; sec-
tion 46, for the annual election. A day is mentioned in the spe-
cial Act, for the election of directors ; but if such election is not
held on the day appointed therefor, the directors shall cause
such election to be held at a special meeting duly called for that
purpose, within as short a delay as possible after the day so ap-
pointed. (4) No person shall vote on such subsequent day except
those who would have been entitled to vote if the meeting had
been held on the day when it should have been held. (5)
When the annual meeting did not take place on the day ap-
(1) Wood Railway Law 341, and note 6 Lindley Comp. 341 .
(2) Wood Railway Law 349.
(3) Reg. v. Coaks, 3 E. & B. 248 ; Regina v. Tewkesbury, L. R , 3 Q. B.
628; Drinkwater v- Deakin, L.R.,9 C.P. 626; Etherington v. Wilson,
L.R., 20 Eq. 606. (4) Sec. 46.
(5) Sec. 47. The Court of Chancery has jurisdiction to set aside an election of
directors by persons who are subscribers nominally and not bonafide. David-
son v Grange, 4 Grant's Chy. 377.
A suit to set aside an election of directors of a corporation, on the alleged
ground of fraud, may be brought by some of the shareholders on behalf of all,
and need not be in the name of the corporation itself. Ib.
ORGANIZATION AND MANAGEMENT OF RY. COMPANIES. 19
pointed, in consequence of an injunction suspending the holding
of such meeting, the injunction being subsequently dissolved, it
was held, that service of notice upon the president and secretary
that the injunction had been dissolved, together with a copy of the
judgment dissolving the injunction, was sufficient to put the com-
pany into default to call the meeting, and a mandamus might issue
in the name of a shareholder under article 1022 of the Quebec
Code of Civil Procedure to compel the company to call the
meeting, (i)
2J$. A person who is ineligible to the office of director, or De facto
whose election was irregular, cannot be a director dejure, yet directors,
he does by his election become a director de facto, if he enters
upon the discharge of his duties. Persons dealing with direc-
tors irregularly elected, without notice of irregularity, and in
good faith, are entitled to treat them as the agents of the com-
pany, and to hold the company bound by their acts, as if they
were duly appointed directors. (2) But as between such direc-
tors and the shareholders, the irregularity is of greater impor-
tance, and it has been held that persons de facto, but not de jure,
directors cannot allot shares, make valid calls or forfeit shares. (3)
24. No person shall be a director unless he is a shareholder Qualification,
owning twenty shares of stock absolutely in his own right, and
has paid all calls due thereon, and is qualified to vote for direc-
tors at the election at which he is chosen. (4)
It was held in an English case where the qualification shares
were to be held by the directors in their own right, that benefi-
cial ownership was not necessary for such qualification, as where
the shares were mortgaged. (5) But the emphatic word "abso-
lutely " used in the above section would seem to exclude an
interpretation in the sense of this case under our Act.
In addition to the directors elected by the shareholders, the
mayor, reeve, or chief officer, etc., of any municipal corporation,
holding $20,000 of stock in the company, is ex qfficio a director,
unless special provision for the representation of such corpora-
tion is made by special Act. (6)
(1) Hatton v.Montreal, Portland & Boston Ry. Co., M. L.R., I S.C. 69,
(2) Lindley Comp. 300. (3) Ibid. (4) Sec, 49.
(5) Pulbrook v- Richmond Consol. Mining Co., 9 Ch. D. 610.
(6) Sec. 38 ; vide also R. S. Q. 5138, and Appendix, sec. 38.
20 THE RAILWAY LAW OF CANADA.
Vacancies. 25. In case of death, absence or resignation of any of the
directors, others may, unless otherwise prescribed by the by-
laws, be appointed in their stead by the surviving directors ; but
if such appointment is not made, such death, absence or resig-
nation shall not invalidate the acts of the remaining directors.
(0
A director who becomes bankrupt or ceases to attend to his
duties dees not thereby necessarily vacate his office. (2) But if
the number of continuing members is less than a quorum, which
section 53 renders requisite for the transaction of any business,
they cannot fall up a vacancy, which must remain until the next
annual meeting, (3) as provided by section 40. The by-laws may,
however, prescribe the manner in which vacancies in the direc-
torate shall be filled, but the by-laws will have no force until
sanctioned by the Governor-in- Council. (4) The directors ap-
pointed remain in office till the next ensuing election. (5)
President. 26. The directors shall, at their first or at some other meet-
ing after the election, elect one of their members to be president
of the company, who shall always, when present, be the chairman
of and preside at all meetings of the directors, and shall hold his
office until he ceases to be a director, or until another president
has been elected in his stead ; and they may, in like manner,
elect a vice-president, who shall act as chairman in the absence
of the president. (6)
Without special authority the president possesses such powers
as. by usage and necessity, are incident to his office and the
usual course of business. (7) Section 60 of The Railway Act
enumerates some of his powers, such as the signing of notes,
bills and debentures, and other instruments, and the performing
of all acts which, by the regulations and by-laws of the company,
or by the special Act, are required to be signed, performed
and done by the president. In the case of his absence, these
(1) Sec. 51.
(2) Phelps v. Lyle, 10 A. & E. 113; and see Wilson v. Wilson, 6 Scott
540.
(3) Newhaven Local Board v. Newhaven School Board, 30 Ch. D. 350.
(4) Sees. 48 & 217. (5) Sec. 50.
(6) Sec. 52.
(7) See Hatton v. M. P. & B. Ry. Co., M. L- R., i S. C. 69.
ORGANIZATION AND MANAGEMENT OF Rv. COMPANIES. 21
acts can be performed by the vice-president, (i) But unless
the charter, by-laws, or the board of directors, by resolution, con-
fer such authority upon him, he has, as president, no more
authority to bind the corporation by contracts than any other
director has. (2) Where the president or other officer of a
corporation assumes to do certain acts for it, for which there is
no express authority, if the corporation ratines such acts either
expressly or impliedly, and they are within the scope of its
authority, it is bound thereby. (3)
27- When directors have stated meetings, either by virtue of Meetings of
the charter, by-laws or resolution of the Board — as on the first dir(:ctors>
notice of.
Monday in each month, etc., no notice of such meetings is re-
(1) Sec. 60.
(2) Wood Rys., 436, 437.
The president, or other principal officer of a corporation, taking a
mortgage for and in the name of the corporation, does not act as its agent, but
as principal in the exercise of its corporate power, and may therefore make
the affidavit of bona fides under C. S. U. C., cap. 45, without authority in
writing. Bank of Toronto v. McDougall, 15 U. C. C. P. 475; and see MacMur-
rick ». Bond Head Harbour Co., 9 U. C. Q. B. 333.
(3) So where J. H.B., a director of defendant's company, personally
owned a vessel, " The United Empire," valued by him at $150,000, and was
possessed of a majority of the shares of the company, some of which he had
assigned to others of the defendants in such numbers as qualified them for the
position of directors of the company. Upon a proposed sale and purchase by
thecompany of the vessel, the board of directors, including}. H. B., adopted
resolution approving of the purchase ; and subsequently at a general meeting
of the shareholders, including J. H. B., and those to whom he had transferred
portions of his stock, a like resolution was passed, the plaintiffalone dissenting ;
it was Held, reversing the decision of the Ontario Court of Appeals (i I Ont.
A . R. 205), that such by law was illegal, and co ild not be ratified by a resolu-
tion of the shareholders of the company at a meeting subsequently called for
the purpose of such ratification, which resolution was passed by a small major-
ity obtained by the votes of the interested director. The N. W. Transportation
Co. v. Beatty, 12 S.C. R. 598. But in the Privy Council it was held that
where a voidable contract, fair in its terms and within the powers of the com-
pany, had been entered into by one of the directors with one of their number
as sole vendor, such director was entitled to exercise his voting power as a
shareholder in general meeting to ratify such contract. His doing so could
not be deemed oppressive by reason of his individually possessing a majority
of votes acquired in a manner authorized by the constitution of the company.
The N. W. Transportation Co. v. Beatty, 12 App. Cas. 589.
The head of a corporation may bind the corporation by any contract from
which it may derive a benefit. Royal Instn. for Adv. of Learning v. Desrivieres,
Stuart's Rep. 224, K. B .
Where a corporation has a knowledge of an act of its president and secre-
tary which they had not sufficient authority to transact, and it does not repu
diate such act, the corporation will be bound by it. Socie'te' de Constr. d'H.
?'. Soc. de Const. Metropolitaine, 4 Dorion Q.B. Rep. 199.
See also Jones v. E. T. Mut. Ins. Co., M.L. R., 3 S.C. 413; nL. N. 132.
22
THE RAILWAY LAW OF CANADA.
Voting.
Directors sub
ject to share-
holders and
bv-laws.
Disability of
officers, con-
tractors and
sureties.
quired, as they are all bound to take notice of the time and place
of the holding thereof in the mode provided by the Act. (i)
38. Each director has but one vote excepting the chairman,
who in case of an equal division has a casting vote. (2)
29. The directors are subject to the examination and control
of the shareholders at their annual meetings, and are also
subject to all by-laws of the company, and to the orders and
directions from time to time made or given at the annual or spe-
cial meetings, but such orders and directions must not be contrary
to any express directions or provisions of the general or of the
special Act. (3)
30. No person who holds any office, place or employment
in, or who is concerned or interested in any contract under or
with the company, or is surety for any contractor, is capable
of being chosen a director, or of holding the office of director;
nor may any person who is a director of the company enter
into or be directly or indirectly, for his own use and benefit,
interested in any contract with the company, other than a contract
which relates to the purchase of land necessary for the railway,
or be or become a partner of or surety for any contractor with
the company. (4)
A. had been appointed secretary at a salary, and whilst sec-
retary he was elected a director, and appointed upon a com-
mittee to exercise certain powers of the directors ; from the time
of his election he received salary as a committee man, but ceased
to receive salary as secretary, though he continued to perform all
the duties of the office. It was held that A. did not hold an
office un ler the company, so as to disqualify him from being party
as a director to the making of a call. (5)
With regard to the nature of the contracts which disqualify
a person interested in them from being a director, it has been
held that they must be contracts made with the company in the
prosecution of its undertaking, and that there is nothing to pre-
vent a banker of a company from being one of its directors. (6)
(1) Warner v. Mower, n Vt. 385; Smith v. Darley, 2 H. L. Cas. 789.
In re Bnt. Sugar Ref. Co., 3 K. & J. 408.
(2) Sec. 55 ; as to quorum, see supra p. 20.
. (3) Sec. 56. (4) Sec. 57.
(5) Iron Ship Coating Co- v. Blunt, L. R., 3 C. P. 485.
(6) Lindley Comp. 328; Sheffield & Manchester Ry. Co. v. Woodcock,
7 M. & W. 574; and see Regina v. Gasharth, 5 Q. B.D. 321.
ORGANIZATION AND MANAGEMENT OK RY. COMPANIES. 23
It has not yet been decided, when there is no express power
granted the shareholders in the general or special Act to remove
directors, whether there is an implied power to do so by resolu-
tion duly passed at a meeting properly convened for the pur
pose; but the better opinion seems to be that there is. (i) It has
been held, however, that if a director is appointed for a definite
period, he cannot be removed before that period has expired,
without some special provision in the charter or by-laws. (2)
Where the shareholders have power to remove a director for
" any reasonable cause," the shareholders are themselves the
judges as to what is, and what is not, a reasonable cause for re-
moval ; and their decision will not be interfered with if they act
fairly and in good faith. (3) But when there had been a meet-
ing where some who were not legally directors were present, and
some who were legally directors were excluded, the Court inter-
fered only to the extent of deciding that it was not a meeting
which could discharge the duties of a board. (4)
31. The directors are required by section 58 of the Act to Powers of
make by-laws for the stock, property, business and affairs of the c^rectors>
company, and for the appointment of all officers and servants.
Where the managing director of a railway company had
issued a large number of debentures to other directors at a dis-
count of 25 per cent., in satisfaction of their claims against the
company, the plaintiffs, who had subsequently obtained deben-
tures of the same class, contended that the said directors could
only claim the amount actually advanced by them, and that they
could not, as directors, sell the debentures to themselves at a
discount ; it was held that inasmuch as the company did not
complain of the transaction, nor any shareholders, and inasmuch
as the transaction was not ultra vires, it was not competent for
the holders of the debentures, such as the plaintiff, were, to im-
pugn the position of the said directors. (5) Where the directors
(1) Lindley Comp. 302.
(2) Lindley Comp. 302. Imperial Hydropathic Hotel Co. v. Hampson,
23 Ch. D. i.
(3) Inderwick v. Snell,2 McN. & G. 216.
(4) Harden ». Philipps, 23 Ch. D. 14.
(5) Bank of Toronto v. Cobourg, etc., Ry. Co., 10 Ont. R. 376. See Cam
bell's case, 4 Ch. D. 470.
24 THE RAILWAY LAW OF CANADA.
of a company abuse their position so as to get an advantage at
the expense of the company, it is for the corporation or its cor-
porators to complain, (i) But it has been held thai a stockholder
can bring an action of account against a corporation, and thereby
contest the validity of a by-law made by its board of directors.
(2) The by-laws of a mutual insurance company gave the
president the management of its concerns and funds, with power
to act in his own discretion and judgment, in the absence of
special directions from the directors • and it was also his duty to
sign all notes authorized by the board or by virtue of the by-
laws ; and was also to act as secretary. Held, that the plaintiff,
who was the transferee for value given before maturity of a note
signed on behalf of the company, by the president as president
and treasurer, and given to the payee in settlement of a valid
claim against the company, was entitled to recover the amount
of said note from the company. (3)
Their position 32. Directors are not only agents, but to a certain extent trus-
as trustees. tees< ^ jt js [\ie\r duty so to conduct the business of the company
as to obtain for the benefit of the shareholders the greatest bene-
fits that can be obtained consistently with the trust reposed in them
by the shareholders, and with honesty to other people. (5) They
are bound to account to the company for all profits made by them-
selves, by their employment of the assets of the company, and for
all profits made by them at the expense of the company, unless
they can show that the company, with a full knowledge of the
facts, has agreed to allow them to retain such profits for their
own benefit. (6)
Liability of. 33, Directors are responsible for the loss of the company's
assets, if that loss is attributable to the employment of the assets
in a manner and for purposes not warranted by the constitution
(1) Ibid.
(2) Keys v. Quebec Fire Ins. Co., Stuart's Rep., 425 K. H.
(3) Jones v. E.T. Mutual Ins. Co., M. L. R., 3 S.C. 413 ; 1 1 L. N. 132.
(4) Faure Electric Accumulator Co. ,40 Chy. D. 141 ; Kay, J.
(5) Lindley Comp. 364; and see Faure Electric Accumulator Co., 40 Ch.
D. 141 ; York & Midland Ry. Co. v, Hudson, 16 Beav. 485 ; Great Luxem-
bourg Ry. Co. r. Magnan, 25 Beav. 586.
(6) Lindley Comp. 365 ; see also 16 Beav. 485 supra • Parker v. Mc-
Kenna, 10 L. R. Ch. 96 ; Gaskell v. Chambers, 26 Beav. 360.
ORGANIZATION AND MANAGEMENT OF RY. COMPANIES. 25
of the company, (i) Generally speaking, directors have a wide
•discretion ; and although in the absence of proof of mala fides, it
may be difficult to establish a case of culpable negligence, or
wilful default, yet if such a case be proved, and loss by the com-
pany attributable thereto be also proved, the directors will be
liable to make good such loss. (2)
But directors are not liable for errors of judgment or honest
mistakes, when acting within their powers, (3) so much so that
they have been held not liable for losses occasioned by purchas-
>ing a business which they knew to be insolvent at the time of the
purchase. (4)
Directors must, however, attend to their duties, and not place
undue reliance on other servants of the company. (5)
34. Directors who are actually implicated in misapplying the Liability of
company's money are jointly and severally liable for the ""
.arising therefrom, and to. entail such liability it is not always
necessary that they should have taken .an active part in such mis-
application. (6)
As to how far the knowledge of his co-directors is the knowledge
•of a director, so as to render him liable for a breach of trust, is a
question that can scarcely be considered as settled. (7) Mere
•constructive notice, however, is not enough to impose liability. (8)
35- Directors of companies are generally allowed compensa- Compensation
tion for their time and attention to the company's business byof-
express agreement; but where there is no such agreement, they
cannot, without the sanction of the shareholders, charge the
company anything for their services. (9)
(1) See Land Credit Co. of Ireland v. Lord Fernoy, L. R., 8 Eq. 7;
Grimes v. Harrison, 26 Beav. 435 ; In re. Nat. Funds Assur. Co., 10 Ch. D.
118 ; Flitchcroft's case, 21 Ch. D. 519; In re. Denham & Co., 25 Ch. D.
752 ; Leeds Estate etc. Co. v. Shepherd, 36 Ch. 1). 787.
(2) Lindley Comp. 372 ; Charitable Corp. v. Sutton, 2 Atk. 400 ; Over-
end, Gurney & Co. v. Gibb, L. R., 5 H. L. 480 ; Evans v. Coventry, 2 Jur.
N.S. 557 ; Turquand v. Marshall, 4 Ch. 376.
c. (3) London Financial Association v. Kelk, 26 Ch. D. 107 and 144.
fff (4) Overend, Gurney & Co. v. Gibb, L. R., 5 H. L. 480 ; and see Par-
ker v. Lewis, 8 Ch. 1035, as to compromising claims.
(5) Leeds Estate Co. v. Shepherd, 36 Ch. D. 787.
(6) Land Credit Co. v. Lord Fernoy, L. R., 8 tq. 7 ; L. R., 5 Ch. 763.
(7) Joint Stock Discount Co.v Brown, L. R., 8 Eq. 381 ; Ashurst v. Mason,
L.R., 20 Eq. 225 ; Land Credit Co. v. Lord Fernoy, 8 Eq. 7 ; Turquand
«>.. Marshall* 4 Ch. 385.
v(8) Hallmark's case, 9 Ch. D. 329.
(9) Dunstan v. Imperial Gas Co., 3 B. & Ad. 125 ; Lindley Comp. 388.
26
THE RAILWAY LAW OF CANADA.
Liability for
reports of
directors.
36. Section 62 provides that directors shall cause annual state-
ments to be prepared, showing monies received by the company or
by the directors or managers, for the use of the company, and all
charges and expenses attending the erecting, making, supporting,
maintaining and carrying on of the undertaking and all other
receipts and expenditures of the company or the directors.
The reports made and accounts rendered by the directors in
the course of their duty, though made and issued to the share-
holders only, as to the state of the affairs of the company, are
considered the representations of the company, not only to the
shareholders, but to the public, if they are published and circu-
lated by the authority of the directors or a general meeting, (i)
Directors of a company are personally liable for injury
caused to third parties by the false representations contained in
a report of the directors to the shareholders ; but the injury
must be the immediate and not the remote consequence of the
representation, and it must appear that the false representation
was made with the intent that it should be acted upon by such
third person. (2) A shareholder cannot claim damages against
directors for having been induced to purchase shares, by mis-
representation, if he has continued to hold them without objec-
tion long afier he had knowledge, or full means of knowledge, of
the untruth of the representations on which he bought them. (3)
Officers and Agents.
General man- 37- Where the powers and duties of a general manager or
ageror super- SUpei jntendent are not defined, his authority is to be measured
mtendent and
other officers, by usage, and what he has been permitted to do by the corpo-
ration, and the incidents thereof. (4) If it is shown that upon
several occasions, as well before as after the act with which it is
sought to charge the corporation, he performed similar acts with
the approval of the corporation, it is sufficient to establish his
authority to do the act in question ; and both his appointment
(i) Rhodes a. Starnes, 22 L.C.J. 113.
'(2) Ib. (3)Ib.
(4) Wood Ry. Law 440. As to managing director, see Canada Central,
Ry. Co. v. Murray, 8 S. C. R. 314.
ORGANIZATION AND MANAGEMENT OF RY. COMPANIES. 27
and authority may be inferred from his open and approved acts*
(i) The powers of a general superintendent of a railway
company are necessarily extensive ; and may be said generally,
in the absence of express limitation, to clothe him with authority
to act for the company in all ordinary matters connected with
the management and operation of the road. In each particular
his powers must be determined by the facts proven, applying
the tests above mentioned. (2) A few instances may, however^
be given in illustration. (3)
In England it has been held that the general manager or
superintendent of a railway has, as incident to his employment,
authority to bind the company to pay for surgical attendance
bestowed at his request upon a servant of the company, injured
by an accident upon its railway. (4)
It is not competent for the officers of a company, in order to
avert a seizure of a quantity of iron rails, to sign a letter to a
bank making the seizure, agreeing that the bank, out of monies
coming to their hands from certain garnishee proceedings taken
by the bank, against debtors of the company, might retain '' an
amount sufficient to fully cover all your solicitor's costs, charges,
and expenses against you, or against you and us, as between
attorney and client, or otherwise ; as well as the costs, charges
and expenses of your bank, of what nature or kind soever, and
after the payment of such, in the second place, to hold the sur-
plus, if any, to apply on your executions against us." (5) But it
is competent for the officers of a company to arrange that such
bank should proceed to garnish certain debts due the company,
the costs of which as between attorney and client the railway
company were to pay. (6) The secretary and accountant have
no power to accept drafts on behalf of the company, and conse-
(i) Wood Ry. Law 441 .
(2j Canada Central Ry. Co. v. Murray, 8 S. C- R- 313-
(3) Unlawful acts of the managing director of a company destined to
bring about the ruin of a co-partnership firm do not bind the company or
make it responsible for damages unless approved or ratified by the com
pany. Bury v. Corriveau Silk Mills, M. L. R., 3 S. C. 218.
(4) Walker v- Great Western Ry. Co., L. R., 2 Exch. 228; also in
United States, Toledo, etc., Ry. Co. v. Rodrigues, 47 111. 188 ; Pacific
R.R. Co. v. Thomas, 19 Kan. 256.
(5) Hamilton & Port Dover Ry. Co. v. The Gore Bank, 20 Grant Chy.
190. (6) Ib.
2 8 THE RAILWAY LAW OF CANADA.
quently the monies covered by such drafts may be legally-
attached by garnishment, notwithstanding such acceptance by
such unauthorized officers, (i)
38. Railway companies are liable for libels published by
their general managers. (2) But where the general manager of
a railway dismissed a conductor, and caused placards, describ-
ing his offence and dismissal, to be posted up in the com-
pany's private offices (in some of which they were seen by
strangers), and entered in the circular books of the conductors,
tor the information and warning of the company's employees,
^ooo in number, the communication to the employees was
held to be privileged. (3)
Manslaughter. 39. Where the company's charter or the general Act obliges
it to perform some duty requisite for the safe working of
ihe road, and the general manager, having been warned of
danger which might arise at a certain point, promises to carry
out the requirements of the la\v, but neglects to do so. whereby
an accident occurs at that point, he could be indicted for man-
slaughter ; but where he promised to do that which was not
required by the charter or general Act, and neglected to carry
out his promise, in the event of a death resulting from his negli-
gence, he could not be so indicted. (4)
There can be no doubt that an engine driver may be indicted
for manslaughier for causing the death of anyone by omitting to
lake any of the usual precautions in driving his engine. (5)
Conductors 4O. As a conductor is invested with authority to control
and employees. tjj the movements of the train, and is bound to look out for the
>afety and reasonable comfort of the passengers, exigencies may
.irise, in which, by virtue of his position, he may make contracts
which would be binding upon the corporation, where they
become indispensably necessary for the performance of his
duties. (6)
As to the liability of railway companies for the acts of their
(1) Ryan v. M. & C. Ry. Co. ,4 L. C- J. 38, Q. B., 1859.
(2) Tench v. Great Western Ry. Co., 33 U- C. Q. B. 8 ; Brown v. Le Maire,
etc-, de Montreal, 17 L- C. J. 46; Art. 356 C. C-
(3) Tench v. Great Western Ry. Co-, 33 U. C. Q. B. 8.
(4) Lxpartf G.T R., Exparte Brydges, iS L. C.J. 141, Q. B., 1874.
(5) Ib., p. 147. (6) Wood Ry?. 449.
ORGANIZATION AND MANAGEMENT OF RY. COMPANIES. 29
employees, there is a strong tendency, especially in the United
States, to restrict the theory that masters are not liable for the
tortious acts of their servants done beyond the scope of their
authority ; and railway companies have been held liable, where
a conductor exacts illegal fare from a passenger, (i) or gives a
passenger, who pays his fare to him, counterfeit, illegal or
worthless money in making change, (2) or for an assault upon
a passenger. (3) And the Quebec courts seem to hold the
same view of the question. (4)
41. It has been held, however, by the Supreme Court (5) that Station
the act of a station agent in issuing a false and fraudulent receipt a=ents-
for goods never delivered to the company was not an act done
within the scope of his authority, and the company were, there-
fore, not liable for the money advanced thereon. And it was
so held in a previous Ontario case. (6) But it has been held
in New York State in the case of Armour v. Michigan Ry. Co.,
(7) over-ruling a prior decision, that if a station agent gives a bill
of lading of goods before they are received, the company is liable
for money advanced thereon. In a Maryland case, however, it
was held that the company might show that the agent signed
the bill fraudulently, and that the goods were never received by
it. (8) In this country, however, it may be said that the ques-
tion is determined by the recent statute, 52 Vic. cap. 30, which,
in providing for the liability of the agent in such cases, would
appear to impliedly exclude the liability of the company.
In an action in trover for conversion of cattle killed in an
accident and sold by the station master, it was held that the
company were not liable, the sale not being the ordinary duty
of the station master. (9)
The company will not be held responsible for freight delivered
(1) Porter v. New York Central R.R. Co., 34 Barb. (N.Y.) 353.
(2) Conn. 11. Ohio, etc., R.R. Co., r Grant's Cas. (Penn.) 329.
(3) Ramsden v. Boston & Albany R.R. Co., 104 Mass. 117.
(4) Hill v. M. S. Ry. Co., S. C. in Review, Montreal 30 June, 1891 ; and
see Hogan v. Dorion, 2 Q. B. R. 238; Laviolette r. Thomas, 31 L. C. J.
197 ; Guenette v. City of Montreal, M. L. R. 4 S. C. 69.
(5) Erb v. The Great Western Railway Co., 5 S. C. R. 179.
(6) Oliver v. The Great Western Ry. Co., 28 TJ. C. C. P. 143.
(7) 65 N. Y. in.
(S) Baltimore, etc., R.R. Co. v. Wilkens, 44 Md. n.
(9) O'Rorke v. The Great Western Ry. Co., 23 U. C. Q. B. 427.
30 THE RAILWAY LAW OF CANADA.
to one in their employ, but who was not their authorized agent
for receiving freight. Thus in Griffin v. The Great Western Rail-
way Co., (i) where a witness swore that he had taken the plain-
tiff's mare to the station, where a man assisted him to put it into a
-car, in doing which the accident happened, it was held that there
was no proof of delivery to defendants. And in a Manitoba
case, (2) plaintiff sent by another person, S., a box of goods to
defendant's station to be carried. S. saw several men working
at defendant's freight shed, and told one of them he had brought
a box for plaintiff: the man told him "to bring it in and put it
there," and S. put it where he was told. He got no receipt. The
box was lost. Plaintiff then went to the station at W., and saw
the man already referred to, who admitted that he got the box,
but could not say what he had done with it ; held, that the
admission of the man whom plainti ff saw was not admissible as
evidence against the defendants, and as it was the only evidence
of delivery, the plaintiff should be non-suited. (3)
Station agents must, from necessity, and from the usual course
of business, be treated as the representatives of the corporation
at their respective stations, in the absence of notice to the pub-
lic of any special limitations upon their authority. Keing
authorized to receive, receipt for, and bill goods for shipment,
the public has a right to presume that they have authority to
bind the corporation by contracts relating thereto.
Thus an agent can by verbal contract agree to carry petroleum
in covered cars, with despatch, although he had private instruc-
tions not to do so. (4)
-Contractors. 42. The principle is now well established, both in England
and the United States, although after a long course of conflicting
decisions in both countries, that the employer of a " contractor "
is not responsible for the negligence of the contractor or his
servants, where the work contracted to be done is not of itself
wrongful or dangerous, or there is no duty incumbent on the
employer to do the thing himself. (5)
(i) 15 U. C. Q. B. 507. (2) Young v C. P. R., I Man. 205.
(3) See also Leigh v. Smith, I C. & P. 638 ; Slim v. The Great Northern
Ry. Co.,i4C. H. 647.
(4) Grand Trunk Ry. v. Fitzgerald, 5 S. C. R. 204.
(5) Smith on Negligence (Amer. Edit, by \Vhittaker, 1888), p. 171-2:
\Vood, Ry. Law. p. 1008, sec. 284.
ORGANIZATION AND MANAGEMENT OF RY. COMPANIES. 31
And the rule is the same in the civil law. (i) But this rule
becomes difficult of application, where the employer of the con-
tractor interferes with or exercises control over the latter in the
manner of performing the work.
Where a railway acted as bankers for the contractors, and
paid the wages of the workmen, cost of transport to the place
where they were engaged, etc., it was held that the company were
the real principals. (2) Plaintiff was a servant in the employ-
ment of one K., a contractor with defendants for keeping their
road in repair. In performing these repairs, certain carriages and
engines, under the management of the defendant's servants,
were used to transport materials and convey workmen employed
by K. The plaintiff being one of such workmen, became a
passenger in one of these carriages to be carried from his place
of work to his residence, and in this capacity was injured by a
collision . Held, that defendants were liable. (3) This decision
would appear at first sight to be contrary to later decisions ; (4)
but as pointed out in Graham v. Toronto, Grey & Bruce Ry.
Co., (5) that case differed very materially from these, for there
it was admitted that in preparing the work necessary for the
repairs, certain carriages and engines, under the guidance and
management of defendant's servants, were used for the transport
of materials and conveyance of the workmen employed by the
contractor. In the latter cases it was found that the contract
was to carry materials only, and not passengers, and the con-
ductor, in permitting the plaintiffs to get upon the train, was
not acting as defendant's agent.
A railway company is not responsible for damages occasioned
by^the negligence of contractors in making the road, where such
damage was occasioned by doing acts which they were not
required by their contract to do. (6) Nor for illegal acts of
contractors, such as trespass or damage upon adjoining lands. (7)
(1) Sourdat, vol.2, No- 892 et seq. ; Morin v. Atlantic & No rth-West
Ry. Co., 12 L. N. 89 ; Thibodeau v. City Pass. Ry. Co., 4 R. L. 654.
(2) Lapointe v. C. P. R., 7 L. N. 29.
f(3) Torpy v. The G. T. R., 20 U. C. Q. B. 446.
(4) Sherman v. Toronto, Grey & Bruce Ky. Co., 34 U.C- Q. B. 451 5
Graham v. Toronto, Grey & Bruce Ry. Co., 23 U. C. C. P- 541 ; Cunningham
». G. T. R., 31 U. C. Q. B. 350.
(5) 23 U.C.C. P. 548.
(6) Woodhill v. The Great Western Ry. Co., 4 U. C- C. P. 449.
(7) Eaton r. European & Northern Ry. Co., 59 Me. 520 ; 8 Rev. Rep. 430.
32 THE RAILWAY LAW OF CANADA.
In Nichol v. The Canada Southern, (i) plaintiff's fences
were thrown down by the defendants' contractor, and plaintiff
requested defendants under the statute to fence off their
line from his land ; there thus arose in this case a statutory duty
to perform it, and there could be no doubt as to the defendants'
liability for non performance, whatever their recourse against
the contractor might be.
Where the company, by their engineers and other officials,,
constantly superintend, direct, and control the work while it is
in progress, they would be responsible for all that the work-
men did in the course of that work, although they were not the
workmen of the company. (2) Where a person is authorized by
Act of Parliament or bound by contract to do particular work,
he cannot avoid responsibility by contracting with another per-
son to do that work. (3) The employer would not be responsi-
ble where a contractor was doing work dangerous if not care-
fully done, when he had no reason to believe the contractor
would not be duly careful. (4) Where the contractor does the
very thing he was engaged to do, and it causes an injury, the
employer may be made liable. (5)
. 43. Where persons are in fact employed by directors to transact
generally. business for a company, the authority of those persons to bind a
company within the scope of their employment cannot be denied
by the company, unless : i. their employment was altogether
beyond the power of the directors ; or unless : 2, the persons
employed have been appointed irregularly. (6) But where the
power to appoint an agent fora given purpose exists, irregularity
in its exercise is immaterial to a person dealing with him
bona fide, and without notice of the irregularity in his appoint-
ment. (7) And Maule, J., in Smith v. Hall Glass Co., (8) ex-
(1) 40 U. C. Q. B. 583.
(2) Burgess v. Gr:.y, i C. B. 578 ; Serandat v. Saisse, L. R., i P. C. 152 ;
Pendlebury v- Greenlagh, I Q. B. D. 36- See also Browne v. The Ottawa
& Brockville Ry. Co., 20 U. C. Q. B. 202.
(3) Hole v. bittingbou'-ne, etc., Ry. Co., 6 H. & N. 488.
(4) Daniel r. The Directors, etc- of the Metropolitan R. W. Co., L. R-, 5
H.L.4S-
(5) Ellis v. Sheffield Gas Consumers Co., 2 E. & B. 767.
(6) Hawkin v. Bourne, 8 M. & W. 703 ; Lindley Comp. 159 ; Canada
Central Ry. Co. v. Murray, S S- C. R. 313.
(7) Lindley Comp. 159. (8) 8 C. B. 668.
ORGANIZATION AND MANAGEMENT OF RY. COMPANIES. 35.
pressed the view which has been adopted by later authorities,
that a company is bound by the acts of persons who take
upon themselves, with the knowledge of the directors, to act
within the limits of their apparent authority ; and that strangers
dealing bonafide with such persons have a right to assume
that they have been duly appointed, (i)
44. A ratification, to be imputable to a company, must be Acquiescence,
made directly by its shareholders, or indirectly through their ratification,
agents acting within the limits of their real or apparent authority;
and in order to establish ratification by the shareholders or their
agents, it must be shown : i. That the parties alleged to have
ratified the contract knew what it was ; or having their attention
drawn to it, did not choose to inquire into it. (2) 2. That they
have in some way recognized and adopted it. (3)
If these two essential points are established, there will still
remain for consideration the question whether the recognition and
adoption have been in proper form. (4)
45. Since the case of Fitzherbert v. Mather, (5) it has been Notice,
an undoubted rule of law that notice to an agent is notice to his
principal ; but what shall be deemed sufficient, in the case of
constructive notice to a principal, in order to bind him through
his agent, has been the source of considerable litigation.
In England the rule is now that the knowledge of an agent is
the knowledge of his principal, and his principal is affected
thereby, whether such knowledge be acquired by the agent in the
course of his employment or otherwise. (6)
(1) See Lindley Comp. 160.
(2) La Banque Jacques Cartier v. La Banque, etc., de Montreal, 13 App.
Cas- in.
(3) O'Brien ». Credit Valley Ry. Co., 25 U. C. C. P. 275 ; Baby v. The
Great Western Ry. Co., 13 U. C. Q. B. 291 ; Bury v. Corriveau Silk Mills,
M. L. R., 3 S. C. 218; Soc. de Construct. d'Hochelaga -c. Soc. de Construe.,
etc., 4 Q. B. R. 199 ; Hamilton & P. D. Ry. Co. v. The Gore Bank, 20 Chy.
190.
(4) Lindley Comp. p. 178. (5) I T.R. 15.
(6) Dresser v. Norwood, 17 C.B., N.S. 466 ; and see Carter v. Molson,
10 App. Cases, at pp. 68-711.
3
CHAPTER III.
SHARES AND SHAREHOLDERS.
1. Capital stock.
2. Increase.
SUBSCRIPTION.
3. Before incorporation and or-
ganization.
4. After organization.
5. Conditional.
6. Payment in supplies, services,
etc.
7. Repudiation.
8. Special subscriptions.
9. Other cases.
10. Effect of statutory change .
TRANSFER.
11. Shares may be transferred.
12. When complete.
13. Form of.
14. Right to.
15. Liability of company for frau-
dulent transfer.
1 6. Measure of damages for neglect
to transfer.
17. Mandamus to compel.
18. Transmission otherwise than
by transfer.
19. Company not bound to see to
trusts, etc.
20. Shares " in trust."
21. Want of authority or power in
the transferor .
22. Succession duty unpaid.
23. Interest on sums paid in ad-
vance.
ACTIONS BY CREDITORS AGAINST
SHAREHOLDERS.
24. Liability of shareholders .
25. Execution against the company .
26. Cause of action in such cases.
27. How action against shareholder
should be commenced,
28. Defences. — Payment.
29. " Cessation of com-
pany.
30. Defences. — Non-performance of
conditions.
31. " Irregu la rities .
32. " Shares remitted to
company.
33. " Shares acquired as
paid up.
34. " No notice of allot-
ment.
35. Never a shareholder.
36. ' ' Change of capital.
37. " Difference between
memo, of associa-
tion and prospec-
tus.
38. " Ultra vires.
39. " Fraudulent misre-
presentations.
40. " Forfeiture.
41. " Agency.
" Transfer-
42.
43-
44-
45-
46.
' ' Defective service.
" No contract.
" Set-off.
CALLS.
47. Directors may make.
48. Notices.
49. Payment.
50. Payment by note.
51. Forfeiture for non-payment of
calls.
UNISSUED SHARES.
52. Sale of.
PAID UP STOCK.
53. Issue of.
DIVIDENDS AND INTEREST.
54. Dividends.
55. Net profits, what are.
56. Liability of directors for pay-
ment of dividends out of capital.
57. Preference shares.
SHARES AND SHAREHOLDERS.
35
1. The stock of the company is declared by sec. 75 of the Act Capital stock,
to be personal property ; and is subscribed for in the first instance
upon the books of the company opened for that purpose by the
provisional directors under the provisions of sec. 33. The
amount of the capital stock is fixed by the special Act, and
must be divided into shares of $100 each, (i)
2. The original capital stock may be increased from time to Increase,
time, to any amount, by vote of the holders of two-thirds in value
of the subscribed stock, at a meeting expressly called by the
directors for that purpose after 20 days special notice in writing
to each shareholder. The increase is^subject to the approval of
the Governor-in-Council. (2)
Subscription.
3. It has been strongly contended that there is a difference Subscription
between subscriptions before the company is in existence and for stock.
afterwards. The argument may be stated as follows. Before a porati
company is incorporated, there is an offer on the part of those organization
wishing to become stock-holders to take shares. It is only, at°n e °
the most, a mere proposition to take stock, and not a binding
promise to take and pay, (3) and certainly does not constitute
a contract which could be enforced by the party subscribing.
He could not by his offer oblige the provisional directors* to
allot any of the shares to him. Even after incorporation a larger
amount of stock than required might be subscribed for; and
the power of the provisional directors to reject such applications,
as they please, is not doubtful. (4) But the question is whether
this offer, when accepted by the allotment of the stock, would
become a binding contract upon notice of the allotment to the
subscriber in proper time. It has been held in Quebec that a
subscriber to a company to be incorporated, but who never
subscribed after incorporation, nor received notice of allotment,
(1) Sec. 35.
(2) Sec. 37 ; ubi supra p. 14.
(3) Tessier, J., in Arless v. Belmont Mfg. Co., M. L. R., i Q. B. 340.
Henry, J., in Nasmith ». Manning, 5 S. C- R. 441.
(4) Sec. 34, ubi supra, p. 13.
36 THE RAILWAY LAW OF CANADA.
nor paid calls, is not liable for the stock, (i) And this view has
been sustained by the Supreme Court. (2)
Nasmuth v. The question arose in Nasmith v. Manning (3) in this way :
Manning. Banning made an application to the provisional directors of
the T. G. & B. Ry. Co., for shares, and signed the stock book,
which was headed by an agreement by the subscribers to
become shareholders for the amount set opposite their names,
and upon allotment by the company they covenanted to pay
ten per centum of the amount of the said shares and all future
calls. The company, on the i st July, passed a resolution instruct-
ing their secretary to issue allotment certificates to each share-
holder for the amount of shares held by him. The secretary
prepared them, including one for Manning, and handed them to
the company's broker to deliver to the shareholders. The
brokers published a notice, signed by the secretary, in a
daily paper, notifying subscribers to the capital stock of the
T. G. &B. Ry. Co., that the first call of ten per cent, on the
stock was required to be paid immediately to them. The res-
pondent never called for or received his certificate of allot-
ment, and never paid the ten per cent., and swore that he had
(1) Union Nav. Co. v. Couillard,2i L. C. J 71 (Q.B.I877) ; Arless v. Bel-
mont Mfg. Co., M. L. R., I Q.B. 340 (1885) ; Rascony v. Union Navigation
Co., 24.L.C. J. 133 (1878) ; but see Windsor Hotel Co. v. Date, 27 L. C. J. 7
(S. C. 1881).
(2) Nasmith v. Manning 5 S. C. R. 417 ; Magog Textile & Print Co. v.
Price, 14 S. C. R. 664 (10 L. N. 331). The same f. Dobell, ib., affirming
9 L. N. 348, Q. B. ; 12 Q. L. R. 204, Q. B. ; 14 R. L. 600, Q. B.
A subscription of shares in a company proposed to be incorporated is a
mere proposition to take stock thereio, and is not binding ; but where the
subscriber's name has been inserted in the letters patent, even without his
knowledge or consent, he is liable as regards third parties. Banque d'Hochelaga
r. Garth, M. L. R , 2 S.C. 201. The latter part of this decision was re-
versed in the Privy Council, and the letters patent annulled. 15 App. Cas. 414.
In an action by a judgment creditor of a railway company against the de-
fendant to recover the amount of the shares which it was alleged ' ' he had sub-
scribed for," to become a member of the company to the extent of said shares,
plaintiff produced stock book of company,but failed to prove defendant's signa-
ture there appearing. Held : — that the fact of defendant's name appearing in
the act incorporating company as one of the provisional directors will not be
considered as authorizing the court to presume he ever became a subscriber
of shares, more especially when there is no proof of his having acted as a pro-
visional director, or that he had attended any of the meetings of the company.
Rogers u. Kersey, 15 L. C.R. 141 (1864.) See Wilson c. Ginty, 3 O. A. R.
124.
(3) 5 S. C. R. 417-
SHARES AND SHAREHOLDERS. 37
never had any notice of the allotment having been made to him.
The Supreme Court held, affirming the Ontario Court of Appeal,
that the document signed by Manning was only an application
for shares, and that it was necessary for the appellant to have
shown notice within a reasonable time of the allotment of shares to
respondent, and no notice whatever of such allotment had been
proved. From this judgment, Ritchie, C.J. , and Gwynne, J.,
dissented, Strong,}., was absent, and Taschereau, J., stated that
he felt great embarrassment in coining to a conclusion, and had
vacillated a good deal about it. Unfortunately, for the sake of
precedents, although leave was granted to appeal to the Privy
Council, the case was settled before coming on for argument.
•4. It is to be noted that the decision in Nasmith v. Manning After organiz-
only relates to subscriptions before organization of the company. atlon<
As pointed out by Henry, J., who delivered the principal judgment
in that case : (i) " We must look at this document from a stand-
point very different from that we should occupy in the case of a
subscription to the stock book of a company already in existence.
A party in the latter case would, after his application for stock
had been accepted, be called upon to sign the stock list in the
book of the company kept for that purpose." And further on he
says : (2) " If the signature of the respondent was to the regular
stock book of the company after being organized, no allotment
would require to be shown."
There is no doubt that in England, the contract for subscription
of shares is entered into in a somewhat more technical or formal
manner. An application, in the first instance, is made in
writing for a specified number of shares, which application is
held to be a mere offer, and is generally open for acceptance by
the corporation for only a limited time. (3) If the application be
accepted, the corporation formally allots to the applicant the
desired number of shares, and gives him a notice of allotment
within the time limited, The notice is of the essence of the con-
(i) At page 441, vol. 5, S. C. R. (2) At page 443.
(3) Ramsgate, etc.,z/. Montefiore, L. R., I Exch. 109; Hebb's case, L. R.,
4 tq. 9; Gunn's case. L. R., 3 Ch. 40 ; Pellatt's case, L. R., 2 Ch. 527 ;
Household, etc., Co. v. Grant, L. R., 4 Ex. Div, 216 ; Ward's Case, L, R,,
10 Eq. 659 ; Harris' Case, L. R,, 7 Ch. 587.
38 THE RAILWAY LAW OF CANADA.
tract. So it is well settled in England, that, in order to make
the contract to take up shares binding, there must be the applic-,
ation in writing, the allotment of the shares to the applicant,
and a communication to him of the notice of allotment, (i)
But the reasoning of the English holdings upon this point pro-
ceeds entirely from the method of acquiring stock subscriptions
in vogue in that country. As remarked by Lindley, in his work
on companies: (2) "Allotment and notice are, in truth, only
material where there is no agreement without them. In the
ordinary case of an application for shares, there is no agreement
in the absence of allotment and notice of it ; but there may well
be a binding agreement without either of them."
This is well shown in the English case of Bird, (3) cited by
Lindley, where the holding reads : " A director of a company
applied for and subscribed an agreement to take additional
shares. He was entered upon the register in respect of the addi-
tional shares, but none were ever actually allotted to him. '1 he
company being wound up, Held : that his name was properly on
the register, and ought also to be placed upon the list of contri-
butaries for such additional shares."
The difference between the English system and that in vogue
in this country is clearly pointed out in Lake Superior Nav. Co.
v. Morrison, by Chief Justice Hagarty, (4) as follows : " If
there had been applications to the directors for shares, offering
to take stock, and, as often happened, to an amount exceeding
the number to be taken, we can easily see how important the
question of allotment would be. A man may signify his readiness
to take stock, and desire to have a certain number of shares, and
unless some shares were allotted to him, it could not be said
that he was the holder of any shares. In the case before us the
proceeding was of a totally different character. Parties were can-
vassed to take stock, and by the act of subscription they actually
subscribed fora specified number of shares, and expressly bound
themselves to make payments thereon, as might be required by
the board of directors. Little over half the capital stock was
subscribed for, and no question did or could arise from the
(I) Cook, Stockholder?, sec. 56. (2) p. 761.
(3) 4 De G. J. & Sm. 200. (4) 22 U. C. C. P., p. 220.
SHARES AND SHAREHOLDERS. 39
course adopted, as to any act to be done by the directors to allot
any number of shares." Again, in Smith v. Spencer (i) it was
held that the subscription to the stock book of a company was
sufficient evidence of the party subscribing being a shareholder
under the definition of that term in the Railway Clauses Con-
solidation Act, and that it was not necessary that scrip should
be issued for the stock to constitute such subscriber a share-
holder.
This was also the view held by our Court of Review in Rascony
v. Woollen Co. (2) It was there stated by Loranger, J., that
allotment is not usual in this country as it is in England. The
subscription in this case was subsequent to incorporation, and
Nasmith v. Manning (3) was quoted to show that allotment is
not essential to constitute a person a subscriber to a company
already formed. (4)
The question would seem to depend upon the form of the
subscription. It is difficult to understand upon what principle
a binding agreement may not be made to take shares in a com-
pany, whether organized or not, provided it be clear, precise and
unequivocal, and contains the usual essentials of a contract.
(1) 12 U. C. C. P. 277.
(2) M. L. R., 2 S- C. 382 ; and Alley v. Trenholme, 3 Q. R. (S. C ) 169.
(3) 58. C. R.4I7.
(4) Where a person has subscribed for shares in the capital stock of the
company which is being organized and has assumed the position of shareholder,
and has paid a portion of the calls made from time to time on the stock, he
cannot set up alleged irregularities in the organization of the company as a
valid reason for avoiding payment of the remainder of the calls. Windsor
Hotel Co. & Lewis et al., 4 L. N. 331 ; 26 L. C. J. 29 (Q. B. 1881)
Illegal acts on the part of the directors cannot be set up in defence to an
action for calls by liquidators or assigns representing the creditors of the
company. Ross et al. v. Can. Agr. Ins. Co., 5 L. N. 23, 1882.
Appellant was solicited to subscribe for shares, and paid $500, and signed
his name to a subscription book, the columns of amount of subscription and num-
ber of shares being at the time left in blank. These columns were afterwards
filled up for 50 shares by an agent of the company in appellant's presence,
but without his consent. Appellant then tried to be relieved from the surplus
shares without success, and later on received a dividend on the paid up capital
and gave a receipt.
Upon an action to recover calls on 50 shares at $ loo, alleged to have been
subscribed.
Held (reversing Q. B. decision, 6 Q. L. R. 147 (Q. B.) : That the evidence
showed that the appellant never contracted to take 50 shares, and that the
receipt given for the dividend on amount paid in was not an admission of the
liability for a larger sum, and he was not estopped but he was never in fact
holder of 50 shares. Cote' v. The Stadacona Ins. Co., 6 S. C. R. 193.
4O THE RAILWAY LAW OK CANADA.
The question should be determined in each case on the prin-
ciples which govern ordinary contracts, (i)
It would be advisable to have subscription forms drawn in.
precise and unequivocal terms.
Conditional. 5» Subscription to sto-k in a railway company may be condi-
tional, (2) but the conditions must be performed before calls can
be made thereon, (3) although it is not necessary that they
should be accurately fulfilled ; it is sufficient if they be materially
carried out. (4) Thus, where defendant subscribed on condition
that the road be constructed to within ^ of a mile of his
tannery, it was held that defendant would be liable for calls if
the road ran so near to his tannery as to substantially fulfill the
condition. (5) An American railroad company were induced
to extend their line to the Canadian boundary, on the condition
that the inhabitants of the neighborhood would contribute their
subscriptions to a certain quantity of shares in the road. The
company's part of the condition was held to have been properly
performed by bringing their line to the boundary in the neigh-
borhood asked to contribute. And one of the subscribers could
not escape his liability because the company had not brought
their terminus to a point where he believed it was to be. The
company were at liberty to select any convenient spot on the
boundary line. (6) If an offer is made to take shares condi-
tionally or upon unusual terms, a clear acceptance of these
conditions or terms must be proved in order to constitute a bind-
ing agreement; and the mere fact that the shares have been
placed in the applicant's name is not sufficient to bind him. (7)
The conditions must be assented to by those who are com-
petent to bind the company; (8) they must be expressed in the
subscription, (9) and must not be a secret qualification. (10)
(1) Per Ritchie C. J. in Magog Textile Co. v. Price 14 S. C. R. at p. 671.
(2) Rogers v. I-aurin, 13 L. C. J. 175, Q. B. 1863.
(3) Massawippi Railway Co. v. Walker, 3 R. L. 450 ; Rogers v. Laurin, 13
L.C.J. 175 (Q.B. 1863).
(4) Stanstead Ry. Co. z: Brigham, 17 L. C. R. 54 (S. C. 1866).
(5) Ibid.
(6) Conn. & Passumpsic Ry. Co. v. Comstock, i R. L. 589 (Q. B. 1870.).
(7) Lindley Comp. 17. Shackleford's Case, L. R., I Ch. 567.
(8) Howard's Case, I Ch. 561 ; National Ins. Co. v. Chevrier, i L. N.59I
(9) Jones -•, Montreal Cotton Co., I L.N. 450, and 24 L. C. J. 108.
(10) Port Dover & Lake Huron Ry. Co. v. Grey, 36 U. C. Q. B. 426.
SHARES AND SHAREHOLDERS. 41
6. The company are not bound by an agreement between a Payment in
subscriber and those who solicited him to become a shareholder, tilces/etc.8*
that he would pay for his stock in supplies to the company, (i)
Nor where the agreement is to pay for stock in services ; (2) or
where the agreement is made with a provisional director, a chief
promoter of the company, on the condition that the subscriber
shall receive the contract for building the road. (3)
7. It is too late for a subscriber to repudiate his subscription Repudiation,
when he has paid the first instalment and taken an active part,
both as solicitor and shareholder, in promoting the affairs of the
company, he being at the time in possession of the facts which
gave rise to his repudiation. (4)
8. Shares subscribed to in a special subscription list, and made Special sub-
payable upon the performance of a certain condition, are payable £cnPtlons-
without the making of regular calls. (5)
9. An Act of incorporation maybe for two purposes, e.g. : the other cases,
construction of the line from one point to another, and giving
the company power to extend the line to another point. In
such case it is quite competent for the company to receive sub-
scriptions for stock to be applied to the main line, and the ex-
tension separately. (6) It is also competent for the parties res-
pectively subscribing for these stocks to contract with the
provisional directors, that beyond the usual ten per centum paid
upon subscription, no other money whatever shall be called
for, nor any calls be made, until a particular sum shall be sub-
scribed for the main line, or for the extension line, as the case
may be. (7)
10. Where a person subscribes for shares in a company incor- Effect of sta-
porated for certain specified purposes, and not otherwise, yet if the tutol7 change,
shareholders apply to Parliament for extended powers, whereby
the nature of the business is varied and extended, and, in the
(1) Christin v. Union Nav. Co., Ram. Dig. 391 (Q. B. 1882).
(2) Nat. Ins. Co. v. Hat ton, 24 L. C. J. 26 (Q. B. 1879), 2 L. N. 238.
(3) Wilson v. Ginty, 3 O. A. K. 124.
(4) Nat. Ins. Co., r. Hatton, 24 L. C. J. 26 (Q. B. 1879), 2 L. N. 238.
(5) Stanstead & Connecticut Ry. Co. v. Brigham, 17 L. C. R. 54 (S-C.
.1866)
(6) Port Dover & Lake Huron Ry. Co. v. Grey, 36 U. C Q. B., p. 438.
(7) Ibid.
THE RAILWAY LAW OF CANADA.
opinion of the subscriber, rendered more hazardous than when
he first became a member, such Act of Parliament is binding
upon all shareholders, whether assenting or not to the applica-
tion to Parliament, (i)
Transfer.
Shares may u. Shares in the company may, by the holders thereof, be sold
be transferred. /••,,•
and transferred by instrument in writing, (2) made in dupli-
cate,— one part of which shall be delivered to the directors, to
be filed and kept for the use of the company, and an entry
whereof shall be made in a book to be kept for that purpose ;
and no interest/)r dividend on the shares transferred shall be paid
to the purchaser until such duplicate is so delivered, filed and
entered. (3)
12. The transfer is complete when entered in the stock ledger
in the name of the transferee, although the acceptance has not
been signed. And when so entered, a seizure of the shares under
an execution against the transferor will not be upheld. (4)
13. Transfers are made in the form provided by sec. 74, except
in the case of paid-up shares, which may be made in such form
as the by-laws prescribe, (5) " but no shares shall be transferable
until all previous calls thereon have been fully paid up, or until
the said shares have been declared forfeited for the non-payment
of calls thereon ; and no transfer of less than a whole share
shall be valid." (6)
14. Where shares are transferable, (7) and no restriction
(1) Canada Car & Manufacturing Co. v Harris, 24 U- C. C. P. 380, and
cases there cited.
(2) The verbal testimony of the secretary of a railway company, to the
effect that it appeared by the books of the company that the shares originally
in the name of the defendant had been transferred before the institution of
plaintiff's action, who sues as a creditor of the company, to recover the
amount unpaid on such shares, is insufficient to establish the fact of such
transfer. Cockburn v. Beaudry, 2 L. C. J. 283
(3) Sec. 73. (4) Woodruffs. Harris, II U. C. Q. B. 490.
(5) Sec. 74. (6) Sec. 75.
(7) Where a company are asked by a transferee to register stock transferred
to him by another person, the company are justified in refusing to do so in
respect of such shares as appear only in an entry of credit to the transferor
of the shares in the ledger, but which are not standing in his name in the
stock book. MacMurrick v. Bond Head Harbour Co., 9 U. C. (J. B. 333^
and see Cockburn v. Beaudry, 2 L. C. J. 283, supra-
When com-
plete.
Form of.
Right to.
SHARES AND SHAREHOLDERS. 43
on the right to transfer them is imposed by the by-laws of
the company, or by the statute or charter by which it is
governed, the right to transfer is absolute, and the directors
cannot prevent a transfer, even if they are bona fide of opinion
that it is for the interest of the company that they should do so.
(i). So under the section of a special Act incorporating a
railway, which section is similar to sec. 73 of the present Rail-
way Act, it was held that the clerk could not refuse to register a
transfer of stock from one municipal corporation to another, on
the ground that no by-law had been passed sanctioning such
transfer. (2) Even a transfer to a pauper, in order to escape
from liab lity, is valid, and cannot be prevented. (3)
But notwithstanding the length the courts have gone in hold-
ing the right to transfer to be free from all implied restriction, a
transfer which is fraudulent in the sense of not being a real
transfer out and out, or a transfer made for fraudulent purposes,
(4) can be lawfully objected to by the directors. (5) But a
transfer to avoid future liability or to multiply votes is held not
to be fraudulent. (6)
Where, by the Act of incorporation, certain definite restrictions
are placed on the right to transfer shares, the directors are
bound strictly by the terms of those restrictions. (7) And
where the Act requires the consent of the directors to a transfer,
such power of assenting or dissenting to a transfer is reposed
in them as trustees, and they must exercise that power accord-
ingly. (8)
(1) Lindley Comp. 464. Moffatt v. Farquhar, 7 Ch. D. 591 ; Stranton
Iron Co., 16 Eq. 559 ; Weston's Case, 4 Ch. 20. A company incorporated
27-28 Vic., cap. 23, has not power to refuse to allow a transferor snares of
its stock, without assigning a sufficient reason. Smith v. Can. Car. Co., 6
P. R. 107.
(2) Mun.Corp.of Vespra & Sunnidale v. Beatty, 17 U. C. Q. B. 540.
(3) Lindley Comp. 464.
(4) A transfer of shares by a stockholder in a joint stock company, which
is made with the object and has the effect of reducing the capital stock
of the company, is void, and all resolutions of the directors authorizing such
transfer are illegal and ultra vires. Ross v. Worthington, 5 L. N. 140. Vide
also Ross v. Fiset, 8 Q. L. R. 251, p 56, infra.
(5) Lindley Comp. 465 ; Weston's case, 4 Ch. 20.
(6) Lindley Comp. 465. (7) Weston's Case, 4 Ch. 20.
(8) Exparte Penney, 8 Ch. 446 ; Poole v- Middleton, 29 Beav. 646 \
Robinson v* Chartered Bank, I Eq. 32-
44 THE RAILWAY LAW OF CANADA.
Section 58 of the Act gives the directors power to make
by-laws for the disposition of the stock, etc.
In the absence of any provision of the special Act and of any
by-law regulating this matter, the general law on the subject
seems to be clear, that ihe powers of directors to refuse or
permit a transfer of stock can be derived only from express
authority, and cannot be extended by implication, (i) "Such a
power," says Judge Dillon in Johnson v. Laflin, (2) "is so
capable of abuse, and so foreign to all received notions and the
universal practice and mode of dealing in these stocks, that it
cannot, in the absence of legislative expression, be held to
exist."
In the United States, a transfer of shares in a failing concern,
made by the transferor with the intention and for the purpose of
escaping liability as a shareholder, to a person who for any
cause is incapable of responding in respect of such liability, is
void both as to creditors of the company and as to other share-
holders. (3) But, on the other hand, it has been held that if
the transfer is bonafide, ?nd the transferor is ignorant of the
insolvency of the transferee, and the company is not insolvent,
the transfer is effectual, and the transferor is released from liabil-
ity. (4)
The English rule goes further, as stated above, and a share-
holder may transfer his shares to a man of straw for «. nominal
consideration, even although the sole purpose of such a transfer
be to escape liability. But the transfer must be out and out,
and not merely colorable and collusive. (5)
In this country the English rule has been fully adopted. (6)
In a recent New Brunswick case, (7) it was Ileld : "that
where a director or other stockholder of the society had, prior
(1) Weston's Case, 4 Ch. App. 20; Gilbert's Case, 5 Ch. App. 559;
Chappell's Case, 6 Ch. App. 902; Stranton Iron & Steel Co., 16 Eq. 559;
Moffatt v- Farquhar, 7 Ch. D. 591. Johnson v. Laflin, 103 U. S. 800.
(2) 103 U. S. 800. (3) Cook, Stockholders, §263.
" (4) Miller v- Great Repub. Ins. Co., 50 Mo. 55 ; Cole v. Ryan, 52 Barb.
1 68.
(5) Cook, Stockholders, § 266, and numerous cases there cited.
(6) Held: that the insolvency of the assignee was no objection to the trans-
fer, the only condition to a valid transfer being the payment of all calls.
Moore et al. v- McLaren, n U. C. C. P. 534 ; see also extract from report
of same case, infra p. 45 .
(7) 30 N. B. 628.
SHARES AND SHAREHOLDERS. 45
to the application for winding up, transferred shares in the
society bona fide, such transfer was valid, and the transferor was
not liable to be placed on the list of contributories, even though
the transfer was made for the purpose of avoiding his liability
for calls, with the knowledge that the society was in insolvent
circumstances, and that the transferee was unable to meet any
calls that might be made upon him, and although the considera-
tion for the transfer was merely nominal , or even although he
paid the tr?nsferce money to induce him to accept the transfer.1'
There is every reason to suppose that the Supreme Court
would adopt this view, as the transfer of shares is a subject
relating to the trade policy of the country, which is very dis-
tinctly in favor of freedom from restraint. And in a very recent
House of Lords case, (i) Lord Herschell, quoting Blackburn,.
J., in in re Bahia & San Francisco Ry. Co., (2) said " that
when joint stock companies were established, it was a great
object that the shares should be capable of being easily trans-
ferred."
The fact that The Railway Act does not provide for such a
contingency as we are now debating, excepting in so far as power
is given to the directors to make by-laws regulating the matter,
must lead us to the same conclusion as that arrived at by the Su-
preme Court of New Brunswick in the above case, where it was-
said: " The liability of shareholders is the entire creation of the
Legislature, and cannot be any more or less. If it was intended
that there should be any restriction on the right to transfer, or of
ceasing to become a stockholder, the Legislature could have im-
posed it, and they must have known that this could be done, and
they did not provide for such a case, and it would be simply an
act of legislation for the Court to attempt to do it."
Again in Ontario it has been held that the insolvency of the
assignee of the stock is no ground for vitiating the assignment,
the only condition precedent for the valid assignment of stock
being the payment of calls. (3) This case came under The Rail-
way Clauses Consolidation Act, 14 & 15 Vic.,c. 51, the relevant
(1) The Balkis Consolidated Co. & Tomkinson, 1893, App. Cas. 396-
(2) L. R., 3Q. B. 584.
(3) Moore v. McLaren, it U. C. C. P. 534 ; and see Reg. ». Lambourn
Valley Ry. Co., 22 Q. B. D. 463 (if"
46
THE RAILWAY LAW OF CANADA.
Liability of
company for
fraudulent
transfer.
Measure of
damages for
neglect to
transfer.
clauses of which have been re-enacted almost verbatim in the
present Railway Act.
Finally, Mr. Wood, in his work on Railways, says : " Directors
have no right to refuse a transfer because, in their judgment, the
motives and purposes of the parties are improper, or because the
transfer may injuriously affect the company, (i)
15. P., the owner of numbered shares in a joint stock company,
transferred them to persons who were registered in the company's
books as proprietors of shares. P. afterwards fraudulently ex-
ecuted a transfer of the shares for value to T.,who sent the trans-
fer to the company, and received from them a certificate under
their common seal, stating that he was the proprietor of the
shares. T., acting bonafide on the faith of the certificate, sold the
shares, but the company refused to register the purchaser as
the proprietor, on the ground that after granting the certificate
to T. they had discovered that he was not the real owner of the
shares. It was held that the company were estopped by their cer-
tificate from denying that T. was the proprietor of the shares, and
that he was entitled to recover from the company the damages
which he had in fact sustained owing to their refusal to register
the purchaser. (2)
16. An action was brought against a railway company for ne-
glecting to register a transfer of shares in the books of the company
which had been transferred by the plaintiff to a creditor as col-
lateral security, the arrangement being that the creditor should
sell the shares at the best rate, and after deducting the amount of
claim, pay ov;-r the balance to the plaintiff; and after repeated
demands on the company to register such shares, they were finally
registered and sold ; but in the interim a great depreciation had
taken place in their value, and plaintiff brought action byway of
damages for the difference.
The court held, that the plaintiff was entitled to such action
and that the measure of damage was the difference between the
price of the stock at the time of refusal and the price at the time
of the subsequent registration of stock. (3)
(1) Ed. 1885, p. 253 ; and see Moreton, J., in Crocker v. Old Colony
Railroad Co., 30 Alb. L. ]. 495 ; and Cook, Stockholders, § 385,395.
(2) The Balkis Consolidated Co. u. Tomkinson (1893), App. Cas. 396.
,(3) Grand Trunk Ry. Co. v. Webster ; 6 L. CJ. 178 (Q. B. 1861).
SHARES AND SHAREHOLDERS. 47
17. It has been held in a recent English case, (i) that where Mandamus to
an action for mandamus will lie, the prerogative writ will not be comPe •
allowed to issue to compel transfer of shares. (2) This case seems
to mark a new departure in this respect, and it will now be seldom
necessary or proper to apply for a prerogative writ to settle
disputes between companies and their members. (3)
In order that a mandamus may lie to compel a company to
transfer shares, there must be a distinct refusal on the part of the
company to do so. A refusal in effect, though not in direct
terms, would be sufficient to give rise to such an action. But no
rule can be laid down for determining whether there has been a
refusal or not . (4)
(1) The Queen ?;. Lambourn Valley Ry. Co-, 22 Q. B. D. 463.
(2) Where a petition for a mandamus was demanded against a railway
company, to compel it to make the necessary entries in their books of the sale
to the petitioner of a number of shares in the capital stock of the company :
Held to be the duty of a clerk or secretary to enter the names and places
of residence of the owners of stock in the company, and that the Superior Court
had jurisdiction to enforce such order under 12 Vic., cap. 41. MacDonald v.
Montreal & New York Ry. Co., 6 L. C. R. 232 (1856).
In an action against a Harbour Co., for refusing to register a transfer of
.stock by one S. to the plaintiff.
Held : that although S being president of the company might perhaps have
registered his assignment himself, yet that the refusal of the secretary to do so
founded a good ground of an action against the company. MacMurrick v. Bond
Head Harbour Co., 9 U. C. Q. B. 333.
N. was the banker of a railway company ; he was also one of the directors.
Under certain business arrangements of the company he was entrusted with
the possession of certificates which represented shares, and those shares he held
as trustee for the company. He converted the shares. The conversion was
discovered. He gave an explanation, replaced the share?, and continued to
hold the certificates as before, and stood on the register as the apparent owner
of them. He borrowed money of R., and deposited the certificates with R.,
who held them for some time without having taken any step to be registered
as the owner of the shares. R.'s widow and executrix applied to be registered
as the owner ; her application was refused. She moved for a mandamus to
compel registration ; the Court of Q. B. refused the mandamus. The Ex-
chequer Chamber reversed that decision, and ordered it to issue. Held : by
House of Lords, that this was the ordinary case of a trustee abusing his trust ;
that if R. had made proper inquiries he would have found that H. was only
a trustee ; that negligence sufficient to affect their equitable title could not
be imputed to the directors and the company, and consequently the equitable
title of R. could not prevail against the earlier equitable title of the company.
By the Lord Chancellor : Whether a transfer of shares in a company can or
cannot be made without the production of the certificates of the shares is a
matter entirely within the discretion of the directors. Shropshire Union
Rys. & Canal Co. v. Regina, L. R;, 7 H. of L. 496.
(3) Lindley Comp. 603.
(4) Lord Denman in Reg. v. Thames & Isis Navigation, 8 A. & E. 904.
48 THE RAILWAY LAW OF CANADA.
In Ontario, however, it has been held that when several demands
to transfer the stock were made, and delays and evasive answers
given, without in direct terms refusing, a mandamus could be
directed to the company, (i)
Transmission 18. If any share in the capital stock of the company is trans-
otherwise than mittedby the death, bankruptcy or last will, donation or testament,
by transfer. , .
or by the intestacy of any shareholder, or by any lawful means
other than transfer, the person to whom such share is transmitted
must deposit in the office of the company a statement in writing,
signed by him, which shall declare the manner of such transmis-
sion, together with a duly certified copy or probate of such will,
donation or testament, or sufficient extracts therefrom, and such
other documents or proof as are necessary, and without such
proof the person to whom the share is so transmitted, as afore-
said, shall not be entitled to receive any part of the profits of the
company, or to vote in respect of any such share as holder
thereof. (2)
As to what proofs would be necessary ; if there were a will, in
Quebec the production of a notarial copy if in notarial form, or
of a certified copy of the probate if in holograph or English form,
would be sufficient ; in the other provinces, a certified c opy of
the probate and letters of administration.
In the case of intestacy, in Quebec the company might require
certificates of the death of the shareholder, (3) and the birth of
the heirs claiming, (4) extracted from the official registers of civil
status, (5) as well as affidavits or declarations or such other proof
as might be necessary to establish heirship ; and if the shares
were to be divided among the heirs, a copy of the deed of parti-
tion. (6)
In the other Provinces, in the case of intestacy, a certified
copy of letters of administration, issued in accordance with the
law of the particular Province, would seem to be all that would
be necessary.
Company not 19. The company is not bound to see to the execution of
bound to see anv trust whether express, implied or constructive, to which any
to trusts, etc. J '
(1) In re. Goodwin & The Ottawa & Prescott Ry. Co., 13 U. C. C. P. 254.
(2) Sec. 76. (3) C. C. 67.
(4) C. C. 54. (5) C. C. 42-50.
(6) C. C. 689-711.
SHARES AND SHAREHOLDERS. 49
share or security issued by it is subject, and whether or not the
company has had notice of the trust, and it may treat the regis-
tered holder as the absolute owner of any such share or security,
and, accordingly, shall not be bound to recognize any claim on
the part of any other person whomsoever, with respect to any such
share or security, or the dividend or interest payable thereon, (i)
This section is accompanied with the proviso that nothing
therein contained shall prevent a person equitably interested in
any such share or security from procuring the intervention of
the Court to protect his rights.
Similar provisions to the above, contained in Acts relating to
joint stock companies, have been given the fullest effect to both
in England (2) and in this country (3) in protecting the corpor-
ation from claims in connection with trusts, whether express or
implied, to which their shares might be subject.
If, however, the company were to deal with, for their own bene-
fit, stock held in trust or subject to a trust of which they had
notice, they would be obliged to account to the true owner for
the shares, should it appear that the person from whom they got
the shares had not authority to deal with it. (4)
2O. And in such a case where the shares are held by a person shares
" in trust," these words import an interest in some other person, trust."
though not in any specified person, and clearly show an infirmity
or insufficiency in the holder's title ; and are enough to put the
company upon enquiry. (5)
But' the contrary would seem to be the rule, and the section
would have its full force and effect, where the company merely
allowed a transfer to a third person, and had no pecuniary
interest in the transaction ; provided always that the transferor
were not devoid of authority to transfer.
(1) Sec. 77, as amended by 55-56 Vic., cap. 27.
(2) Bank of Eng. v. Hartga, 3 Vesey 55 ; Bank of Eng. v. Parsons, 5
Vesey 665 ; Bank of Eng. v. Lunn, 15 Vesey 583; Gray v. Johnston, L. R., 3
H. of L. I ; ex parte Santa Barbara Mining Co., 38 W. R. 711 (Coleridge,
C.J., 1890).
(3) Simpson v. Molsons Bank, to be reported in Vol. 3 or 4, Q. R.
(Q. B.) ; confirmed in P. C. 1895 (not yet reported.)
(4) Bank of Montreal v. Sweeney, 56 L. J. P. C. 79 ; and L. R., 12 App.
Cas. 617.
(5) Ibid.
50 THE RAILWAY LAW OF CANADA.
Want of au- 21. Where the want of authority is apparent, the company
eHn the^rans- m'gnt be held accountable to the true owner. For instance, in
feror. Quebec, where shares in a bank stood in the name of a tutor to a
minor, and the bank allowed the transfer to be made by the tutor,
without the authorization of the Court upon the advice of a
family council, as required by the laws of that Province, (i) it
was held that the bank was liable for the value of the shares
(which had been dissipated and lost), on the ground that the
tutor had no power to sell. (2) As was said by the Privy
Council : " When this excess of power is once established, then
the sale is in fact the sale of a stranger, and as if a stranger
had sold these shares, and had then by fraud and forgery
induced the bank to make the transfer of them in their
books. " (3)
Succession 22. In this connection it may be doubtful, where a Provincial
duty unpaid. Legislature has imposed a tax or succession duty upon property
transmitted by the decease of the owner, and has declared that
all transfers of stock belonging to the succession shall be void
and shall pass no title until the tax is paid, whether a company
allowing a transfer to be made before the tax is paid would not
be liable to those persons who might suffer thereby. The deci-
sion of this question would depend largely upon the language of
the particular statute.
In the Province of Quebec such a statute was recently passe'd,
(4) which not only declared that all transfers of property, shares,
etc., belonging to the succession would be null and void, and
pass no title, (5) but also lhatno executor, administrator, trustee,
etc., should consent to or make any such transfer until the tax
had been paid. (6)
Applying the reasoning in The Bank of Montreal v. Simpson,
(7) it would seem that in the case of a company allowing an execu-
tor to transfer before the tax had been paid, the company would
be liable to the beneficiaries if the shares or their proceeds were
dissipated or lost; inasmuch as the sale would be an absolute
(1) C.C. 297.
(2) Bank of Montreal v- Simpson, 14 Moore P. C. 417.
(3) Ibid, p. 445 ; and see Colonial Bank v. Williams, 15 App. Cas. 267.
(4) 55-56 Vic. Cap. 17. (5) Ibid., sec. R. S. Q. 1191 «*. (5)
(6) Ibid. (7) 14 Moore P. C. 417.
SHARES AND SHAREHOLDERS. 51
nullity, and the power of the executor to sell, with which he
might be clothed under the will, had been taken away by the
statute, and the sale would be an act in excess of his powers until
he should have fulfilled the condition precedent of paying the
tax; just as the tutor's act in selling the shares in the Simpson
case was held to be in excess of his power because he had not
fulfilled the condition precedent of obtaining an authorization
from the Court.
The question, however, has not yet been judicially passed upon ;
and in the meantime it would seem a safe and conservative
course for companies to refuse transfers, where such an act is in
force, until the succession duty to which their shares may be
subject has been paid.
23. Any shareholder who is willing to advance the amount of Interest on
his shares, or any part of the money due upon his shares, beyond s"ms Paid in
the sums actually called for, may pay the same to the company,
and upon the principal moneys so paid in advance, or so much
thereof as from time to time exceeds the amount of the calls then
made on the shares in respect to which such advance is made,
the company may pay such interest, at the lawful rate of interest
for the time being, as the shareholders who pay such sum in
advance, and the company, agree upon ; but such interest shall
not be paid out of the capital subscribed, (i)
Actions by Creditors against Shareholders.
24. Every shareholder is individually liable to the creditors Liability of
of the company for the debts and liabilities of the company, shareholders,
to any amount equal to the amount unpaid on the stock held by
him, and until the whole amount of his stock has been paid up ;
(i) Sec. 85.
In an action by McK. under the C. S. C., ch. 63, against K. et al., share-
holders of a joint stock company incorporated under that Act, to recover the
amount of an unpaid judgment they had obtained against the company, the
defendants pleaded inter alia that they had paid up their full shares, and there-
after and before suit had ob'ained and registered a certificate to that effect.
Held : affirming the judgment of C. P., that under sees. 33, 34 and 35, chap.
63, as soon as a shareholder has paid up his full shares and has registered,
although not until after the 30 days mentioned in sec. 35, a certificate to that
effect, his liability to pay any debts of the company then existing or there-
after contracted ceases, excepting always debts to employees as specially
mentioned in sec. 36. McKenzie t>. Kittridge, 4 S. C. R. 368.
THE RAILWAY LAW OF CANADA.
Execution
against the
company.
but no such shareholder shall be liable to an action in respect
of his said liability until an execution at the suit of the creditor
against the company has been returned unsatisfied in whole or
in part, (i)
The word "creditors " used in this section is seen to be plural,
but it is evident that a single creditor may pursue the remedy
given by the statute. (2)
25. With regard to executions against the company, all
the court requires of the creditor is that he make proof of
having made reasonable attempts to obtain payment from the
company, and to discover assets presently available for his
satisfaction, and that such attempts have been unsuccessful. (3)
A mere general assertion by a solicitor's clerk, that writs of
fieri facias have been issued against the company and returned
nulla bona, is not sufficient. (4) But if attempts have been made
to discover assets, and these attempts have been fruitless, and a
writ of fieri Jacias has issued against the company, and been
returned nulla bona, that will be sufficient until it is shown affir-
matively that the company has assets ; and even if the company
has assets which have not been taken into execution, still, if the
court is satisfied that they are insufficient to satisfy the plaintiff,
the action would lie. (5) The making of calls by directors is
not a condition precedent to the creditor's right to recover. (6)
It has been held to be not necessary that a fieri facias de bonis
should be returned nulla bona from all the counties through
which the railway runs. (7)
Cause of ac-
tion in such
cases .
26. The cause of action arises where the company has its
principal office and where judgment is rendered for the debt
due by the company, and execution is issued, and not at the place
where the stockholder subscribed for his shares, if outside the
district of the heid office. (8).
(1) Sec. 86.
(2) Moore v. Kirkland, 5 U. C. C. P. 452.
(3) Moore v. Kirkland, 5 U. C. C. P. 452. Lindley Comp. 291.
(4) Hitchins ». The Kilkenny R. R. Co., lo C. B. 160, 15 C. 6.459.
(5) Lindley Comp. 291.
(6) Moore v. Kirkland, 5 U. C. C. P. 452.
(7) Jenkins v, Wilcock, n U. C. C. P. 505.
(8) Welch t>, Baker, 21 L, C. J. 97, 1876.
SHARES AND SHAREHOLDERS. 53
Where an action was brought in Ontario against a shareholder,
there resident, of a company whose head office was in another
Province where judgment had been obtained by the plaintiff
against the company, and execution thereon had been returned
unsatisfied, it was Held : that the cause of action against the
shareholder was complete without the return unsatisfied of an
execution against the company in Ontario, (i)
27. Before the above case was decided, it seems to have HOW action
been uncertain in Ontario whether the action against the share- against share-
holder should be commenced by writ of summons or by writ of be ^mmenced
scirt facias. In the earlier Ontario cases, the remedy was gen-
erally enforced by action. (2) But in later cases the proceeding
is by scire facias. (3) This is the proceeding adopted in England.
(4) But the language of the English Statutes, relevant to this
point, differs from ours in that leave must be obtained from the
judge, in addition to the return of nulla bona, before the action
can be taken against the shareholder. In the leading Ontario
case, above mentioned, (5) it was decided that while in such
cases scire facias was the appropriate form of proceeding against
a shareholder within the jurisdiction, it does not follow, seeing
the particular phrasing of the Act, that an action which is not
scire facias will not lie.
In Quebec the action is begun by' a writ of summons in the
ordinary form.
38. While payment in good faith by a shareholder to judg-r)efences.
ment creditor is, for the purposes of the Act and to the extent of Payment,
the payment, a good defence to an action by another creditor
of the company, a merely colourable payment, e.g. to a trustee
for the defendant, will not avail. (6)
It was held a good defence in an action by a creditor of the
company against a municipal corporation, a shareholder in the
(1) Brice v. Munro, 12 Ont. App. Rep. 453. (1886), and see Jenkins v.
Wilcock, II U. C. C. P. 505.
(2) Moore v. Kirkland, 5 U. C. C. P. 452; Jenkins v. Wilcock, II TT. C.
C. P. 505; Tyre v. Wilkes, 13 U. C. 11.482, 18 U. C. R. 46 and 126.
(3) Gwatkin r. Harrison, 36 U. C. Q. B. 478; Page v. Austin, 26 U.
C. C. P. no.
(4) Ltndley Comp. 290.
(5) Brice v. Munro, 12 Ont. App. 455.
(6) Nasmith v. Dickey, 42 U. C. Q. B. 450; 44 Q. B. 414.
54 THE RAILWAY LAW OP CANADA.
company, that in pursuance of an agreement at the time of sub-
scription, the municipal corporation had paid for their stock to
the contractors of the road as the road progressed, said contrac-
tors having a 999 years' lease of the road, and having mortgaged
their lease to trustees to secure payment to such municipalities
of 6 per cent, on the sums subscribed by them, (i)
Where in such action the defendant pleaded that, before the
commencement of the suit, the railway company sued him for the
same monies, and that after being served with the writ of sum-
mons in that case, and before declaration in either case, and
after the commencement of the suit, he paid the company in full ;
it was held no defence, as it was not averred that such payment
was made in ignorance of plaintiffs claim. (2)
Defences.— 29. The cessation of a company, by non-performance of the
Cessation of con(jitions of its charter within three years, does not extinguish
Company.
its liability or that of its stockholders to pay the debts contracted
during its existence. (3)
Defences. — 3O. Irregularities in the nomination or appointment of direc-
manceeof°con- tors w^ not discnarge the liability of the shareholders. (4) Where
ditions. a subscription is conditional, and the condition has not been
performed, a judgment creditor of the company has no action
against the holder of such shares ; (5) unless the condition was
ultra vires the company or its representative, or where the
shareholder has made a payment on the shares, or has otherwise
made himself liable as a shareholder. (6)
Defendant had signed the stock book of the company for 40
shares, but he alleged that this was done upon the faith of a
verbal agreement with a provisional director and chief promoter
of the company that defendant and another should receive the
contract for building the road. There was no proof that defen-
dant had received any formal notice of the allotment of shares,
but he paid 10 p.c. thereon, because., as he alleged, the provi-
(1) Woodruff?-. Corp. of Town of Peterborough, 22 U. C. Q. 13. 274.
(2) Tyre v. Wilkes, 13 U. C. Q. B. 482.
(3) Ray». Blair, 12 U. C. C. P. 257.
(4) Ryland r. Ostell, 2 L. C. J. 274 ; Ross r. Can. Agr. Ins. Co., 5 I,. N. 23 ;
Windsor Hotel Co. v. Lewis, 4 L. N. 331, 26 L. C. J. 29 (Q. B. 1881).
(5) Rodgersr. Laurin, 13 L.C. J. 175. See subscriptions, conditional, supra.
(6) Wilson r. Ginty, 3 O, A. R, 124.
SHARES AND SHAREHOLDERS. 55
sional director told him that he would not get the contract unless
he paid it. He also attended a meeting of the shareholders,
and seconded a resolution granting an allowance to the directors.
It was held, that the payment of the 10 p. c, made him a
shareholder, and that he could not repudiate his liability on the
ground that he had not been awarded the contract, for the pro-
visional director had no power to bind the company by annexing
such an agreement to his subscription, (i)
A shareholder in subscribing for stock gave the manager of
the company a power of attorney to subscribe for him ten shares,
such power of attorney containing the words " and I herewith
enclose lop.c, thereof, etc., etc." The 10 p.c. was not enclosed,
although the amount was placed to the credit of the share-
holder on the books of the company. In an action against
the shareholder by creditors of the company for contribution, he
pleaded that the sum to his credit was for professional services to
the company, and that there was an arrangement that his stock
was to be paid for by such services. The Court held that he
was bound to contribute. (2) Where a person was requested to
take shares, and objected on the ground that there was unlimited
liability, but was afterwards persuaded to contribute, upon the
assurance that a Bill was to be passed through Parliament to
limit the shareholders' liability ; and paid the deposit, but after-
wards refused to pay calls ; and the Bill promised had not been
passed, but he subsequently agreed to pay a certain call provided
his name was struck off the list of contributories ; and the company
was subsequently wound up, and his name put on the list of con-
tributories ; it was held : that it must be removed therefrom ;
that the directors had had the power to make a compromise of
a disputed claim, and this case came .within their power, and
that power had been bonafide and rightly exercised. (3)
31. The failure of directors to make calls has been held to Defences.
be no defence to an action by creditors, (4) nor irregularities Irregularities,
in the nomination or appointment of directors. (5;
(1) Wilson v. Ginty, 3 O. A. R. 124.
(2) In re. Standard Fire Ins. Co. (Caston's case), 12 S C. R. 644.
(3) Dixon y. Evans, L. R. 5 E. & I. App. 606.
(4) Cockburn v. Starnes, 2 L. C. J. 114 (S. C. 1857).
(5) Ryland v. Ostell, 2 L. C. J. 274 ; Cockburn v. Tuttle, 2 L. C. J- 285
(S- C. 1858).
THE RAILWAY LAW OF CANADA.
Defences. —
32. Unless a company is specially authorized by its charter, it
" cannot reduce its capital nor buy its own shares, nor accept
a remission of them from the shareholders. Such acts are ultra
vires, and do not free the shareholders from liability towards
creditors of the company, (i)
Defences. —
Shares ac-
quired as paid-
up.
Defences. —
No notice of
allotment.
Defences. —
Never a
shareholder.
33. Where shares are acquired in good faith as fully paid up,
without any notice from the transferor that they are not so, the
holder will not be liable to the creditors of the company for the
amount unpaid. (2) And if shares are taken in the course of
business for valuable consideration, the burden of proof lies on
the person who asserts that he who took the shares had notice that
they were not actually paid up. (3)
34. Where the subscription is to a company about to be
organized, it may be a defence that there was no allotment of
shares with notice thereof within a reasonable time, to constitute
the subscriber a shareholder within the meaning of The Rail-
way Act. (4)
35. In an action against defendant as a stockholder for unpaid
stock, it appeared that the defendant signed the stock book, which
was headed by an express agreement by the subscribers to be-
come shareholders of the stock for the amount set opposite their
respective names ; and upon allotment by the company " of my
(1) Ross i\ Fiset, 8 Q. L. R. 251 ; see also Ross v. Dusablon, 10 Q. L. R.
74 ; Ross 0. Worthington, 5 L. N. 140, as at p. 43 supra.
(2) Shares were allotted by resolution of directors among themselves at
40 per cent, discount, their then supposed value, and scrip issued as fully
paid up. G. acquired shares under this arrangement, and sold to defendant,
representing them to be fully paid up. Defendant inquired of the secretary
of the company, who also informed him that they were fully paid up shares,
and he accepted them in good faith as such, and about a year later became
a director of the company. The shares appeared as fully paid up on the trans-
fer books, but the true state of the case could have been ascertained by refer-
ence to the Ledger or Journal, whilst on each counterfoil in the share book
the amount mentioned was : — Shares, two at $300 = $600.
Held (reversing judgment of Court of Appeal for Ontario, I O. A. R. i) :
that a person purchasing shares in good faith, without notice from an original
shareholder, under 27 and 28 Vic., ch. 23, as shares fully paid up, is not liable
to an execution creditor of the company whose execution lias been returned
nulla bona for the unpaid amount of said shares. McCracken v. Maclntyre,
i S. C. R. 479.
(3) Burkinshaw v. Nicolls, 3 App. Cas. 1004.
(4) Nasmith v. Manning, 5 S. C. R. 417. Vide supra, p. 36.
SHARES AND SHAREHOLDERS. 57
or our said respective shares," they covenanted to pay 10 per
cent, and all future calls. The directors passed a resolution
directing the secretary to issue allotment certificates. The secre-
tary prepared certificates, and they were delivered to the com-
pany's broker to deliver to shareholders. It did not appear
that the certificate was ever delivered to defendant, or that he
was ever expressly notified of the allotment, and he never paid
the 10 per cent. He received notices of calls to which he paid
no attention. The evidence showed that he did not consider he
was entitled to any notice, and that he based his belief that he
was not a shareholder simply on the ground that he had not paid
the 10 per cent. It was Held (affirming 43 U. C. Q. B. 22) :
that the evidence was sufficient to prove that knowledge of the
acceptance of his offer by the company had reached the defen-
dant, and that he was therefore liable as a shareholder, and that
it was not ultra vires of the directors to take his subscription
without receiving the ten per cent, thereon, (i)
36. Where material change is made in the capital of a com- Defences. —
pany, and there is no acquiescence or laches on the part of the Ch*n2e of
subscriber, he cannot be held liable as a contributory. (2)
37. Ignorance of differences between the memorandum ofDefences. —
association and prospectus is not a good defence after failure '^^^
of the company, where the defendant might have discovered the of association
difference with proper diligence. (3) ^d ProsPec-
(1) Denison v. Leslie, 3 O. A. R. 5^6.
(2) Stevens t\ The London Steel Works Co. (Delano's Case), 15 O. R.
75. In this case one D. signed his name as a subscriber for a. certain number
of shares at the foot of a prospectus of a proposed company, in which it was
stated that the capital was to be $75,000. Without D.'s knowledge or acquies-
cence, the company as afterwards incorporated, had a capital of $150,000.
In accordance with the terms of the subscription, and before the incorporation
of the company, D. paid up half the amount of his shares. There was no
allotment of stock to D., no entry of his name in any stock book, and no acting
on his part as shareholder. The company being in process of liquidation it
was claimed that D. was a contributory.
Held : that the change made in the capital of the company was a material
one, and there being no acquiescence or laches on D.'s part he was not liable
as a contributory.
(3) Oakes v. Turquand, L. R., 2 H. of L. 325.
In May, 1864, A. published a prospectus of a proposed company, and B. took
shares in it, and paid the first deposit, and a memorandum of articles of associa-
tion was registered in June. After inquiry instituted by B. in December,
58 THE RAILWAY LAW OF CANADA.
Defences.— 3£$. A company incorporated with power to increase by by-law
the capital stock of the company, as soon as but not before the
original stock was all allotted and paid up, assumed to pass a by-
law increasing the capital stock before the original amount had
been paid up. In an action by the creditors against a subscriber
of the new capital stock, it was Held (reversing the judgment of the
court below) : that the by-law so passed by the company being
ultra v/res, the alleged shares of the defendant had not any exis-
tence in law, and therefore that the plaintiffs had failed to estab-
lish that the defendant was a shareholder within the statute, (T)
and consequently they were not entitled to recover. (2)
Defences. — 39. Where by fraudulent misrepresentations of the directors,
m^srepresenta- or ^7 their fraudulent concealment of facts, a person is drawn into
tion. a contract to purchase shares in a company, the directors cannot
enforce the contract against him, and he may rescind it, but he
must do so within a reasonable time. (3) Nor can the directors
set up that lie might have known the truth by proper enquiry. (4)
Defences. — 4O. On the i-jth May, rS53, the directors of a company passed
01 eituie. a respiution, declaring that the shares mentioned in a schedule,
intended to be annexed, had become forfeited for non-payment
of a call made on the previous 2ist Jan., and should be sold on
the 2ist June, unless previously redeemed. The company, had
not afterwards treated defendant as a shareholder, nor had he
acted as such. The resolution for the sale of the stock bad not
1864, he paid a further deposit, and an application was afterwards made by a
third party to wind up the company. In January, 1865, H. applied for and
obtained an order to have his name removed from the register of the company,
upon the ground that the memorandum varied in many respects from the
prospectus, so as, in fact, to constitute a totally different undertaking, and
alleged that till December, 1864, he had never known of the two documents.
Held: that an application by A. to rescind the order for the removal of
B.'s name had been rightly refused by the Court below. Dowes c. Ship,
L. R.,3 H. of L. 343.
(1) 27-28 V., cap. 23.
(2) Page et al. r. Austin, 7 O. A. R. I. confirmed in Supreme Court, ro
S. C. R. 132.
Where an action is brought against a shareholder in an incorporated joint
stock company, he may plead a non-compliance with its Act of incorporation,
and that by reason of such non-compliance the company is not legally in
existence. Que. & Richmond Ry. Co., i L. C. R. 366.
(3) Oakes r. Turquand, L. R., 2 H. of L. 325.
(4) Venezuela Ry. Co. p. Kisch, L. R., 2 H. of L. 99.
SHARES AND SHAREHOLDERS. 59
been acted on by the company, a statute having passed before
the day named for sale, making new provisions as to forfeiture or
abandonment of shares which had not been complied with. It
was held that the defendant was still liable as a shareholder, (i)
4:1. In Quebec, under art. 1716 C.C., an agent who subscribes Defences. —
stock in a company in his own name is liable to creditors of the ^ Sency-
company as a shareholder, without prejudice to the creditors'
rights against the principal also. (2)
4:2. It has been held in Quebec that notwithstanding the Defences. —
transfer by the shareholder of his shares previous to the institution iansfer-
of the action by the creditor, the latter could recover if the debt
accrued and became due while the shares were in the shareholder's
name in the company's books. (3)
43. But this would seem to be contrary to the general prin-
ciples regarding the freedom of the right to transfer previously
enlarged upon, (4) and it would seem more in accordance with
principle and the language of the Act, to say that the liability
accrues only when execution against the company is returned
unsatisfied. (5)
4:4:. In an action by a creditor against a shareholder of unpaid Defences. —
stock in a company incorporated under 32-33 Vic., ch. 13 D, it1?'
vas held that a shareholder, under a plea that the judgment was
obtained by fraud, was entitled to set up a defence that the com-
pany had not in the original suit been served with process, under
sec. 50, the person served as secretary not being such officer. (6)
4:5. Entry of shares in the stock book by the secretary of the Defences. —
company upon a verbal promise of the defendant, but in his
absence, is not sufficient to charge him. (7)
Appellant was solicited to subscribe for shares, and paid $500,
and signed his name to a subscription book, the columns of
(1) Smith v. Lynn, 3 U. C. Error & Appeal R. 201 (Grant).
(2) Molson's Bank v. Stoddard, M. L. R., 6 S. C. 18.
(3) Cockburn v. Beaudry, 2 L.CJ. 283 (S. C. 1858).
(4) supra p. 42 et seq.
(5) Nixon f. Brownlow, 3 H. & N. 686.
(6) Harvey v. Harvey, 9 O. A. R. 91.
(7) Ingersoll & '\ he Thamesford Gravel Road Co. v, McCarthy, 1 6 U. C.
Q.B. 162.
60 THE RAILWAY LAW OF CANADA.
amount of subscription and number of shares being at the time
left in blank. These columns were afterwards filled up for 50
shares by an agent of the company in appellant's presence, but
without his consent. Appellant then tried to be relieved from
the surplus shares without success ; and later on received a divi-
dend on the paid up capital, and gave a receipt. Upon an action
to recover calls on 50 shares at $100, alleged to have been sub-
scribed, it was held that the evidence shewed that the appellant
never contracted to take 50 shares, and that the receipt given for
the dividend or amount paid in was not an admission of the lia-
bility for a larger sum, and he was not estopped, b ut he was
never in fact holder of 50 shares, (i)
Defences.— 46. It is a question as to whether, under the Act, the share-
Set-off, holder can plead the company's indebtedness to him as a set-off
against the unpaid balance of his stock, in an action by the
creditor. In Quebec the question has been considered in the
case of Ryland v. Delisle, (2) where it was held that, as no calls
in respect of the unpaid stock held by the defendant had been
made, the provisions of Arts. 1187-1188 of the Civil Code
did not apply, and that the compensation (set-off) had not
taken place between the defendant's indebtedness as a shareholder
and the company's indebtedness to him. In this case the com-
pany were indebted to the defendant for salary as president'in a
sum exceeding the amount of his unpaid stock. But under Art.
1188 of the Code, the debts, in order to be compensated, must
be " equally liquidated and demandable." Until calls had been
made by the directors, and the proper interval of time allowed
to lapse before they would become due, payment could not have
been enforced, and therefore the debt was not " demandable."
On the other hand, the defendant, at the time the creditor brought
his action, had a right to proceed against the company and recover
payment of the mm due by them to him for salary ; but the
company could not have set up as against that action any
counter-claim which they might have had in respect of his being
a shareholder. The debts, therefore, did not exist " simulta-
(1) Cote v. Stadacona Ins. Co., 6 S. C. R. 193.
(2) 3 L. R. P. C. 17 ; 6 Moore P. C. (N. S.) 225 ; see also Harris v. Dry
Dock Co., 7 Grant's Chy. 450. infra p. 63.
SHARES AND SHAREHOLDERS. 61
neously," and the Privy Council held (i) that the creditor had a
right to recover from the shareholder everything that was due
from the shareholder to the company which was not actually
paid, discharge 1 or extinguished, and that, as there was no com-
pensation as between the shareholder and the company, there was
consequently no extinguishment of the debt. (2)
Decisions under the English law en this point are hardly
applicable here. The Companies' Acts contain a clause quite
similar to sec. 86 of The Railway Act ; but in order to do away
with difficulties, arising through the procedure incident to this
section, certain clauses were included in the winding up Acts.
But our winding up Acts do not apply to railway companies,
while those in England do.
The case in which this point seems to have been considered
most seriously in Ontario is that of Macbeth v. Smart, (3) which
decided that a shareholder, in an action against him by a judg-
ment creditor of the company, could not set off, in equity, a debt
due to him by the company before the judgment was recovered.
This case was very thoroughly considered, and is supported by
an English case, which holds to the same effect. (4) In that case,
Cockburn, C. J., said: " What answer is it for the shareholder
to say : ' The company is indebted to me as well as to you ' ?
The one party has a judgment against the company ; the other
a mere right of set-off." And Draper, C. J., in the Macbeth caser
said: "Admitting, for argument's sake, the equity alleged to arise
from Macbeth's position and dealings with the company to the
fullest extent, I cannot understand that it is to prevail over a legal
right conferred by an express statute." (5) Again, it was par-
ticularly pointed out in the Privy Council in Rylandv. Delisle, (6)
that the creditor under the Act is in a different position to that
of the company. Draper, C. J., who voiced the same idea in
Macbeth v. Smart, said : "Smart does [not derive the power or
(1) Per Lord Giffard, 6 Moore N. S. at p. 235.
(2) Held : that a shareholder of an insolvent railway corporation cannot
offer a debt due to him by the corporation, whatever may be the character of
such debt, in compensation to a claim made against him by the creditor of
the company under C. S. C., cap. 66, §80 ; Ryland v, Routh, I L. C. L. J.
114 (1868).
(3) 14 Grant Ch. 298 (1868).
(4) Wyatt ». The Darenth Valley Ry. Co., 2 C. B. N.S. 109.
(5) 14 Grant Chy. at p. 313.
(6) 6 Moore N. S. at p. 235.
62 THE RAILWAY LAW OF CANADA.
right to have recourse for the payment of his debt to the share-
holders by or through the company, for the statute does not
give it to the company, but to their creditors. It is not, there-
fore, to my apprehension a sound view to treat him on the footing
of an assignee of the company, deriving his rights only from
them." (i) The reasoning and principle of Macbeth v. Smart
were fully adopted by Gwynne, J., then of the Ontario Court of
Queen's Bench, in the case ofBenner v. Curric, (2) which was a
still stronger case, for there defendant had himself recovered
judgment against the company, on which a fieri facias had been
returned nulla, bona. The court said that the plea formed no
defence, for the plaintiff was not claiming in right of the company,
but by virtue of a specific statutory remedy ; and the decision
of Macbeth v. Smart \f as in principle applicable, notwithstanding
the fact of defendant having a judgment and execution. Again
in McGregor v. Currie, (3) Hagarty, C. J., of the Ontario
Common Pleas adopted the reasoning of both Macbeth v. Smart
and Benncr v. Currie, and also the Quebec case of Ryland v.
Dt 'lisle. (4)
The latest case in which the prior Ontario decisions were
referred to is that of Field v. Galloway. (5) But the court found
that it was not necessary to discuss the principles of these deci-
sions, for this was the case of an insolvent company which had
made an assignment of all its assets to trustees, and was subject
to the winding up Acts ; and, further, the Ontario Act,
governing the company, provided : " that any shareholder may
plead by way of defence in whole or part any set-off which he
could setup against the company." Rose,}., however, at the
trial followed Macbeth v. Smart ; though Wilson, C. J , sitting in
Banco said : " It is not necessary to discuss upon what principles
the case of Macbeth v. Smart, and other analogous cases
referred to, were decided. I am inclined to think it will be
found that, so far as they may be supposed to rest upon the
application of the winding up Acts to them, they are not sustain-
(1) 14 Gr. Chy. at p. 314.
(2) 36 U. C. Q. B. 411 (1875).
(3) 26 U, C. C. P. 55 (1876).
(4) 3 L. R. P. C. 17.
(5) 5 O- R- 502 > anc* sec Nasmith v. Dickey, 44 U. C. Q. B. 414.
SHARES AND SHAREHOLDERS. 63
able, although they may be maintainable upon other grounds."
But the winding up Acts do not apply to railway companies, and
therefore we must so far consider the Macbeth case and its atten-
dant cases to be undisputed to the present date.
Galls.
47. The directors may, from time to time, make such calls Directors may
upon the respective shareholders, in respect of the amount of make-
capital respectively subscribed or owing by them, as they deem
necessary, (i) The enactment of a by-law to regulate the mode
in which the calls shall be made is not imperative. Where no by-
law exists, the calls may be made as prescribed by the directors. (2)
Where a trading company incorporated by statute becomes in-
solvent, one of the partners, being also a judgment creditor, is
entitled to a decree compelling the directors to make calls upon
the stock of subscribers, notwithstanding a clause in the statute,
declaring the shares of defaulters should be forfeited, the forfeiture
being cumulative to all other remedies to which a creditor is
entitled, (3) that is, so long as the powers granted by the special
or general Act exist. (4) For example, section 89 of The
Railway Act limits the time for the commencement and com-
pletion of the railway ; and provides that, if those limits are
exceeded, the powers granted by the special or general Act
shall cease and be null and void as respects so much of the rail-
way as then remains uncompleted. It would, therefore, appear
that calls could not be made for the construction of the uncom-
pleted part of the line where the conditions of section 89 have
not been complied with. (5) The Legislature can, however, re-
vive the company's powers in regard to the uncompleted portion
of the line, by giving them through a special enactment a further
(1) Sec. 63.
(2) The Rascony W. & C. Mfg. Co. v. Desmarais, M. L. R., 2 S. C. 381.
In Review.
(3) Harris z/. Dry Dock Co., 7 Grant's Chy. 450; see Ryland z>. De-
lisle, discussed on p. 60 supra.
(4) Where action is brought against a shareholder in an incorporated joint
stock company, he may plead a non-compliance with its Act of incorporation,
and that by reason of such non-compliance the company is not legally in exis-
tence. The Que. & Richmond Ry. Co. v. Dawson, i L. C. R. 366.
(5) Durable v. The Peterborough & Lake Chenning R.R. Co., 12 Grant
Chy. 74.
64 THE RAILWAY LAW OF CANADA.
time to execute their undertaking. And their powers can be thus
revived after lying dormant for years, (i) but the stock first sub-
scribed cannot be regarded as extinguished for non user. (2)
Where such amended Act recites that it has been granted upon
the prayer of the parlies interested in the original Act, it must
be taken upon the recital as conclusive that each individual inter-
ested in the original Act was concurring in the passing of the
amended Act. (3)
Notices. 48. At least thirty days' notice, by publication in the manner
indicated by section 41, shall be given of each call. (4) Section
41 states that a copy of the Gazette containing such notice
shall, on production thereof, be evidence of the sufficiency of
such notice. But it has been held (5) that a Gazette of the date
of 28th May, containing a notice bearing date on the 1 5th of
March of the same year, is not evidence that notice of the first
call was given on the latter date ; — that is to say, a Gazette
cannot be considered as giving notice anterior to the date of its
publication, nor as being evidence of any notice of an earlier date
than the date of the Gazette itself. The statute under which
this case was decided (6) is worded similarly to the above corres-
ponding section of our present Act. (7)
No call shall be made at a less interval than two months
from the previous call." (8) Calls made on the ist September, rst
November, and ist January are not within these requirements.
(9) The months mentioned in the Act are of course calendar
months . Between the day on which the call is payable and the
(1) Toronto & Lake Huron R.R. Co. c. Crookshank, 4 U.C. Q.B., p. 317.
(2) Ibid., p. 322.
(3) Ibid.
(4) Sec. 63.
(5) Buffalo, Brantford & Goderich Ry. Co. y. Parke, 12 U. C. Q. B.foj.
(6) 14 & 15 Vic., cap. 51, sec. 16, ss. 24.
(7) It has been Held : that proof that notices claiming payment of the calls
sued for were mailed to shareholders was sufficient evidence that such calls
were mace. Ross v. Converse, 27 L. C. J. 143, Q. B. 1883.
(8) Sec. 63.
(9) Buffalo, Brantford & Goderich Ry. Co. v. Parke, 12 U. C. Q. B. 607
Port DOV.T & Lake Huron Ry. Co. v. Grey, 36 U. C. Q. B. 425 ; Toronto
Gas Co. v. Russel, 6 U. C. R. 567; Stratford & Moreton Ry. Co. v. Stratton,
2 B. & Ad. 518.
SHARES AND SHAREHOLDERS. 65
•date of the next payment there must be a clear interval of two
•calendar months, (i) But directors may make more than one
call by resolution of the board.
Provided always that no greater amount be called in any one
year than is prescribed by the special Act. (2)
49. Every shareholder shall be liable to pay the amount of the Payment,
calls so made in respect of the shares held by him to the persons
and at the times and places from time to time appointed by
the company or the directors. (3)
Under an Act which required that stockholders should pay up
their shares "by such instalments, and at such times and places
as the directors of the said corporation shall appoint," it was
held that, when the directors passed a resolution ordering a
call, but omitted to specify the place of payment, and a notice,
signed by the managing director "by order," was published,
and a circular signed by him \vas sent to each shareholder, in
which the place of payment was named, but there was no meet-
ing of the directors between the passing of the resolution and
the day named for payment, in an action for this call, the above
omission was fatal. (4)
(1) Ry. Sleepers Supply Co. (in re), 29 Ch. D. 204 ; Clayes v. Darling, 16
R. L. 649; Port Lover & Lake Huron Ry. Co. v. Grey, 36 U. C. Q. B. 425.
Plaintiffs, by their Act of incorporation, were authorized to call in the
stock by instalments, as the directors should appoint, subject to a proviso
that no instalment shall exceed 10 per cent., or be called for or become pay-
able in less than 30 days after public notice shall have been given in one or
more of the several newspapers published in every district where stock may
be held.
Held, that the times fixed for the payment of instalments need not be 30
days apart, but that instalments might be made payable at any time, prov-
ided no call exceeded 10 per cent., and 30 days intervened between the date
of notice of the call and the day on which it was payable.
That no instalment could lawfully be made payable in less than 30 days
from the day for payment of the next preceding.
That notice of a call in one district published in a newspaper is sufficient
to render the shareholders residing in that district liable to pay the call, not-
withstanding that the notice may not have been published in other districts
where stock is held. Provincial Insurance Co. v. Worts, 9 Ont. A.R. 56.
(2) Sec. 63.
(3) Sec. 65.
(4) The Provident Life Assurance & Invest. Co. v. Wilson, 25 U.C. Q.B.
53-
66 THE RAILWAY LAW OF CANADA.
Payment by 50. Jt was held in a New Brunswick case, (i) that a railway
company may take, and recover on, a promissory note given for the
amount of assessments due by a stockholder on his shares. This
decision applies a fortiori to existing railways, because in that
case the company had no express power to make or receive pro-
missory notes, etc., whereas such power is expressly granted by the
Dominion Railway Act. (2)
Forfeiture for fj;j_t Every person who neglects or refuses to pay a ratable
^111 share of the calls, for the space of two months after the time
appointed for the payment thereof, shall forfeit to the company
his shares in the company, and all the profit and benefit
thereof. (3)
No advantage shall be taken of the forfeiture, unless the shares
are declared to be forfeited at a general meeting of the company,
assembled at any time after such forfeiture has been incurred.
(4)
(1) St. Stephens Branch Ry. Co. i: Black, 13 N. B. Rep. 140 ; and see
Redfield, Vol. i, p. 181, ed. 1888.
(2) Sec. 98.
(3) Sec. 80.
Held in accordance with Court of C. P., that the company were not
restricted to the remedy by forfeiture, but might sustain an action against a
shareholder upon calls to stock subscribed. Marmora Foundry Co. v. Jack-
son. 9 Q. B 509, Ontario; Marmora Foundry Co. v- Murray, i C. P. i', 29,
Ontario ; Marmora Foundry Co. v. Boswell, I C. P. 175, Ontario.
A non borrowing member of a building society died intestate; no one
administered for 3 years, and during interval the shares of society ran in arrear,
and the society during the interval declared them forfeited, and carried the
amount to credit of profit and loss account. After the society was supposed
to have Veen wound up and the assets distributed, letters of administration
were obtained, and application was made to the society to be admitted as a
member, and refused.
Held: i. That the proceedings of the society to forfeit the shares in the
absence of a legal representative were illegal ; 2. That the plaintiff (adminis-
trator) was entitled to relief, and that the lapse of time between the attempted
forfeiture and the procuring of letters of administration was no answer to the
claim. Glass v. Hope, 14 Grant's Chy. 484 ; in Appeal, 16 Chy. 420.
See Harris v. Dry Dock Co., 7 Grant's Chy. 450.
(4) Sec. 81.
To a declaration for calls under section 10 of plaintiff's charter, 12 Vic.r
cap. 1 66, defendant pleaded that by non payment of said calls the shares
became forfeited in pursuance of the statute, and that defendant acquiesced in
such forfeiture of which plaintiff had notice. Held : bad, for defendant could
not thus forfeit his shares. Ont. Mar. Ins. Co. v. Ireland, 5 U. C. C. P. 135.
SHARES AND SHAREHOLDERS. 67
Every such forfeiture shall be an indemnification to and for
every shareholder so forfeiting, against all actions, suits, or
prosecutions whatsoever commenced or prosecuted for any
breach of contract or other agreement between such shareholder
and the other shareholders with regard to carrying on the under-
taking, (i)
The directors may sell, either by public auction (2) or by pri-
vate sale, (3) and in such manner and on such terms as to them
seem meet, any shares so declared to be forfeited, or may
pledge such shares for the payment of loans or advances made
or to be made thereon, or for the payment of any sums of
money borrowed by or advanced to the company. Provided
that authority for such purpose of the stock be first given at a
special general meeting of the shareholders called for the
purpose. (4)
Although the Act gives to the company power to forfeit
shares for non-payment, yet this power cannot be exercised for
the purpose of discharging stock subscribers from liability to
creditors, in case the company should prove a failure. (5)
(1) Sec. 82.
The directors passed a resolution, declaring that the shares mentioned in a
schedule intended to be annexed (but which was not annexed) to the resolu-
tion, which had become forfeited by non-payment of a call, should be sold at
a certain date, unless previously redeemed, and the resolution for sale of the
stock had not been acted upon by the company ; in an action by a creditor
against a shareholder on the forfeit list, it was held that the defendant was
still liable as a shareholder.
Smith v. Lynn, 3 U. C., E. & A. 201, see p. 59 supra • see also Fraser v.
Robertson, 13 U. C. C. P. 184.
(2) The shares of certain shareholders being forfeited by default to pay
the calls due thereon were offered for sale by auction.
Held : that the omission to state in the notices of sale the amounts which had
been paid on the shares in question did not affect the validity of the sale. Gil-
man v. The Royal Can. Ins. Co., M. L. R., I S.C. I.
(3) Held : (incidentally) that it is not absolutely necessary that forfeited
shares should be sold by public auction. A sale made in good faith and for
the advantage of the company will not be disturbed, more especially when
the person who owned the shares does not complain thereof. Oilman v.
Robertson et al. & the Royal Can. Ins. Co., M. L. R., I S. C. ir.
(4) Sec. 83.
(5) Morawitz Corp., § 857 ; Mills v- Stewart, 62 Barb. 444.
68 THE RAILWAY LAW OF CANADA.
Unissued Shares.
Sale of. 52. Section 83 also empowers the directors upon the authority
of the shareholders to sell or pledge " any unissued shares," in
the same manner as forfeited stock. The power to issue the
stock so to be sold is given by the shareholders in a special
general meeting convened.
This section would apparently authorize the directors to sell
forfeited or unissued shares at a discount; but if so sold wrong-
fully or fraudulently, the directors would be liable in damages
as for a breach of trust, (i) And the holders of such shares
would be held liable for their full par value, not only to creditors,
but on liquidation of the company to the ordinary shareholders
on adjustment of their rights inter se. (2)
But even where a statute expressly prohibits corporations from
selling their shares at a discount, the pledgee of stock can dis-
pose of it at less than par. (3)
Paid-up Stock.
Issue of. 53. The directors may make and issue, as paid up stock, shares
in the company, whether subscribed for or not, and may allot
and hand over such stock in payment for right of way, plant,
rolling stock or materials of any kind, and also for the services
of contractors and engineers ; and such issue and allotment of
stock shall be binding on the company, and such stock shall not
be assessable for calls. (4;
(1) Hirsche r. Sims P. C. 28 July, 1894 ; 10 Times L. R. 616.
(2) In re. Time Tables Publishing Co. (Welton's case), 10 T. L. R. 660.
But see Ooregum Mining Co. r. Roper (1892) App. C. 125.
(3) Peterborough R. R. Co. v. Nashua & L. R.R. Co., 59 N. 1^.385.
(4) Sec. 39. And see p. 88 infra.
A company not registered under the Companies Act issued shares as
"fully paid up," and also certificates of those shares, describing them as fully
paid up, and made the annual returns giving them the same description. The
company entered into a contract with G. to purchase a mill and machinery,
part payment for which was to be made to G. in " fully paid up shares." They
were not, in fact, fully paid up, and there was no contract with respect to them
such as is required by the Companies Act of 1867, § 25. G. received the
shares, and negotiated business with them, and gave B., from whom he had
purchased property, and who accepted them, a part of purchase money in fully
paid up shares. B., having bought some property from N., purchase money
was paid by B. to N. through a solicitor who acted for both B. and N. The
property in question was then conveyed at B.'s desire irect from N. to G.,
SHARES AND SHAREHOLDERS. 69
Dividends and Interest.
54. At the annual meeting of the shareholders of the company, Dividends,
a dividend may be declared out of the net profits of the under-
taking, (i)
Such dividend shall be at and after the rate of so much per
share (2) upon the several shares held by the shareholders in the
stock of the company, as such meeting thinks fit to appoint or
determine. (3)
55. Net earnings are properly the gross receipts, less the Net profits,
expenses of operating the road or other business of the corporation. what are>
Interest on debts is paid out of what thus remains, that is, out
of the net earnings. Many other liabilities are paid out of the
net earnings. When all liabilities are paid, either out of the gross
receipts or out of the net earnings, the remainder is the profit of
the shareholders, to go towards dividends, which, in that way,
are paid out of the net earnings. (4)
and 200 shares held by G. were handed over to N., who, however, s.vore that
he only received them as trustee for B. N's name was registered as holder of
the shares on Company's books, and he at once sent a proxy to G. to vote
at a general meeting, describing himself as a shareholder of the company.
The certificates of these shares were given to B . himself. The company was
ordered to be wound up. Held : that, under the circumstances, N. was not
liable to be placed on the list of contributories in respect to the 200 shares.
Held, also, that if shares are taken in the course of business for valuable con-
sideration, on the person who asserts that he who took the shares has notice
that they were not actually paid up, lies the burden of proof of that notice.
Burkinshaw v- Nicolls, L. R., 3 App. Cas. 1004, H. L. (E).
(1) Sec. 69.
(2) The capital of a company incorporated under the Acts of 1862 and 1867
consisted of 60,000 shares of £ I ; 40,000 were fully paid up, and 20,000 to the
extent of only 53. per share. By the jist Article of Association the directors
may declare a dividend to b2 paid to the members in proportion to their
shares. By the definition clauses, the word "capital " was declared to mean
the capital for the time being of the company, and the woid "shares" the
shares into which the capital is divided. In a question whether the directors
could competently recommend a dividend payable to each shareholder in pro-
portion to the amount paid up on the shares held by him, Held ; affirming
the decision of the court below, that such a declaration of dividend was in-
competent, because, upon the true construction of the articles of association
read with the Act of 1862 and 1867, all the shares wereentitled to participate
equally in the dividend, without regard to the amount paid up upon each.
Oakbank Oil Co. ». Crum, L. R., 8 App. Cas. 65.
(3) Sec. 70.
(4) Blatchfield J., in St. John v. Erie R.R. Co., io Blatch 271. Affirmed in
the Supreme Court of the United States, 22 Wall (U.S.) 136.
70 THE RAILWAY LAW OK CANADA.
The word "liabilities" has been extended to embrace not
only debts already matured, but those which exist but have not
matured. Thus, where a corporation had on hand $36,000, its
floating debt was $1,000, and the funded debt payable in seventeen
years at 6 per cent, was $75,000 ; the yearly current expenses, in-
cluding interest on funded debt, was about $10,000, and the cor-
poration had no immediate need of the surplus on hand, or of its
earnings, except to pay the current expenses ; in an action by a
stockholder to compel the corporation to declare a dividend, it
was held that in such a case the court would not compel the
directors to declare a dividend; (i) but if the directors, in
the exercise of their discretion under such a state of facts, should
declare one, the courts would not restrain its payment upon the
ground that unmatured debts existed, especially where such debts
have a considerable period to run, and there are no evidences of
fraud ; because the directors themselves are the best judges as to
the state of the business of the corporation and its prospects for
the future. (2) The above New York case was largely decided
on the grounds of the American doctrine, that a corporation is
the trustee of its creditors, but not of its stockholders, and that
therefore the creditors have a better right to the funds which the
corporation hold for them in trust.
The term " net profits " has been held to mean net earnings -after
deducting current working expenses, without including interest
on money borrowed, (3) but a better definition is thought to be,
that which remains after deduction of all charges and every out-
lay. (4) Profits have also been tersely defined by very high
authority to be the incomings of a concern after deducting the
expenses of earning them, (5) and perhaps the clearest and
most accurate definition is that given by Kekewich, J., in a
partnership case, (6) namely, that net profits is the sum divisible
(1) Karnes i;. Rochester, etc., R.R. Co., 4 Abb. Pr. (N. Y.) N. S. 107.
(2) Wood Ry. Law 167.
(3) Corry r. Londonderry, etc., Ry. Co., 29 Beav. 263. Brice, ultra vires
(Green), 195.
(4) Cook, Stockholders 546. Ed. of 1889.
(5) Meisey Docks r. Lucas, 8 App. Cas. 903.
(6) Glasier v. Rolls, L. R. 42 Ch. D. 453 ; and see Birch v. Cropper 14
App. Cas. 525. As to working out profit and loss account, see Buckley Coy's.
486 ; and the remarks of the Lord Chancellor in Mills v. Northern Ry. of
Buenos Ay res, L. R. 5 Ch. 621, 631.
SHARES AND SHAREHOLDERS. 71
after discharging or making provision for every outgoing proper-
ly changeable against the period for which the profits are calcu-
lated. The power of settling questions of the kind is generally
entrusted to the directors, with or without the sanction of the
shareholders ; but under sec. 54 the declaration of dividends in
the case of railway companies is clearly the act of the share-
holders, (i) Apart from the limit placed on all powers of
directors and shareholders by the doctrine of ultra vires, if
there be a difference of opinion the voice of the majority must
prevail. (2)
56. The majority can decide whether a dividend shall be Liability of
paid before some particular debt is discharged. (3) JUJSSo?
But this is always subject to the liability of the directors in dividends out
damages or otherwise for payment of dividends not justified by of caPital-
the profits or out of capital.
The directors, in their quality of administrators and trustees,
are responsible to the company, its shareholders and credi-
tors for all damages directly resulting from the payment of a divi-
dend which diminishes the capital of the company ; (4) and they
are also responsible for the loss suffered by third parties, who,
having nothing to guide them as to the state of the company and
the value of its shares but the dividends paid, have been induced
to buy stock at exaggerated prices, through the declaration of fic-
titious dividends, which, in fact, diminished the capital of the
company. (5) But shareholders who attended the meetings when
the dividends were declared, or who were notified to attend but
did not do so, and who had or could have had communication of
the statements and reports submitted by the directors would be
estopped from maintaining an action of damages. (6)
(1) See Re Denham Co. L. R. 25 Ch. D. 763.
(2) Lee v. Neuchatel Asphalte Co., 58 L. T. R. 553 ; Ranee's case, 6 Ch.
App. 104; Lever v. Land Securities Co., 8 Times L. K. 94; Lambert v. Neu-
chatel Asphalte Co., 30 W. R. 413.
(3) Lindley Comp. 429.
(4) Montreal City & District Savings Bank v. Geddes, 19 R. L. at p.
687 (S.C. Que. 1890).
(5) Ibid.
(6) Ibid. An application for an injunction enjoining the directors of a
•company not to declare a special dividend must be preceded by notice, and the
affidavit in support of the application will be held insufficient if it merely
alleges information and belief. Kane u. Montreal Telegraph Co., 20 L. C. J.
120(1876).
72 THE RAILWAY LAW OF CANADA.
Preference *^' Unless the contrary is declared by statute, charter, or
shares. express contract, all shareholders are entitled to equal rights as
to dividends, arid no class is entitled to any preference or
priority over any other. Preference shares can only be created
when the authority to create them is given by statute or charter,
(i) "Guaranteed" and "preferred stock" stand upon the
same footing, and are not entitled to a dividend unless it has-
been earned. (2)
(1) Lindley Comp. 396.
(2) Wood Railways, 176.
CHAPTER IV.
GENERAL POWERS.
1. Limitation of time for commen-
cement and completion of work.
2. Judicial interpretation of sec. 89.
3. Power of Lieut. -Govr. to cancel
charter.
4. Extraordinary powers.
5. Surveys.
6. Maps and plans
7. Deposit of plan.
8. Notice of deposit.
9 . Correction of errors or omissions.
10. Alterations in plan.
1 1 . Construction of railway not to be
proceeded with till plans made
and deposited.
12. Further powers.
13. To receive gifts and bonuses.
14. To purchase, take and sell lands .
15. To carry railway across lands.
1 6. Deviation.
17. Branch lines .
18. To fell trees, cross, etc., railways.
19. To construct works on, across,
or under railways, streams, high-
ways, etc .
20. 7o divert streams and highways .
21. To make drains, conduits, et: .
22. To alter position of gas and
water pipes, etc.
23. Proviso.
24. Telegraph and telephone lines.
25. To make and maintain railway.
26. To erect buildings, etc.
27. To exercise powers beyond Inter-
national boundary.
28. To sell lands acquired from
Crown or otherwise.
29. Proviso as to compensation for
damages caused by exercise of
powers .
1. Before considering in detail the general powers of a railway Limitation of
company, it may be convenient to point out that under section ^™ncemen°m
89 of The Railway Act, the construction of the railway must be and comple
commenced, and fifteen per cent, (i) of the amount of the capi-tlon of work-
tal stock must be expended, within two years (2) after the pass-
ing of the Act authorizing its construction ; and if the railway is
not finished and put in operation within seven years (3) from the
passing of the Act, the powers granted both under the special
Act and the general Act are declared to be null and void with
regard to so much of the railway as remains unconstructed at
thjt time.
(1) Ten per cent., Que. Act, R. S. Q. 5176 (3).
(2) Three years, Que. Act, R. S. Q. 5176 (3).
(3) Ten, Que. Act, R. S. Q. 5176 (3).
74
THE RAILWAY LAW OF CANADA.
Judicial inter
pretation of
section 89.
Power of
Lieut. -Govr.
to cancel
charter.
2. It has been held in Quebec that the fact of not having
expended the amount required within the specified time, nor com-
menced construction, does not ipso facto operate an extinction
of the company nor the revocation of its charter, which could
only be ordered at the suit of the Attorney General, and not on
an injunction by a private individual, (i)
And by the House of Lords in an English case, where the
company's charter provided that if the railway was not completed
in 5 years its powers should cease, except as to so much as was com-
pleted, and the company had given notice to a land-owner of its
intention to take certain property, but did nothing further until
thirteen days before the expiration of the 5 years, and then,
under the Lands Clauses Ace, entered on the land, and proceeded
to construct the railway thereon, it was Held, that whether the
railway could or could not have been completed within the spe-
cified time, the entry on the land was lawful, and the company
could not be restrained by injunction, but were entitled to remain,
and complete the railway after the expiration of the 5 years. (2)
3. By a recent Act of the Quebec Legislature (3) the Lieuten-
ant-Governor has been given power, upon the report of the rail-
way committee, to cancel the charter of any railway company
(1) Roy v. La Cie. de Ch. de K. Q. M. & C., n L. N. 359 ; and see, Re
New York Elevated Ry. Co., 70 N. Y. 327.
(2) Tiverton v- North Devon Ry. Co. v. Loosemore, 9 App. Cases 480.
The P. & C. L. Ry. Co. had acquired certain land as part of their
roadbed In 1865 its charter expired, the road not having been put in
operation. In 1866 an Act was passed, by which the road was to be sold at
auction, the Act of incorporation revived, and the time for completing extend-
ed for 5 years. Within 5 years a conveyance was executed to defendant's
company, which took possession, but which did not use the land till a short
time before the suit. In 1872 the C. P. & M. R. & M. Railway filed a
map and book of reference of a proposed extension of their line, and built
part of their road, ceasing in 1873. In 1880 they leased to plaintiff company
the land in question, and this action was to recover hack possession.
Held, (affirming Court below) That the partial construction of the road
by the C. P. & M. R. & M. Railway in 1872 was an act of trespass ; that
the defendant company, under the reviving Act and conveyance in pursuance
thereof, acquired a title to the land; that the power to sell by order of the
Court of Chancery was permissive merely ; that the right to the land was not
forfeited by non-completion of the work on the land within the five years, and
therefore that the phintiff company should not succeed. Grand Junction
Ry. Co. v. Midland Ry. Co., 7 O. A. R. 681. As to what will constitute a
bond fide commencement of construction, see Ont. & Sault Ste. Marie Ry.
Co. p.C. P. R. Co., 140. R. 432-
(3) R- S. Q- 5 '83 O) 56 Vic. c. 36, s. 2.
GENERAL POWERS. 75
which has not complied with the terms of its charter as to com-
mencement and completion of the works within the prescribed
time, or has become insolvent, or is unable to proceed with the
works, or for any other cause which, in the opinion of the Lieu-
tenant-Governor, is sufficient to justify such cancellation, (i)
•4. In order that a company may be enabled to construct and Extraordinary
operate a railway, the Legislature by The Railway Act has given Pov
extraordinary powers, including the power of eminent domain,
(2) which powers will be found enumerated in section 90 of the
Act. (3)
5. The preliminary steps necessary for the construction of a Surveys,
railway are the taking of surveys, and the making of plans of the
road or line of the railway, as authorized by the Act of incor-
poration ; and in order that the company may be enabled to
do so> they are authorized by this section of the Act to enter
upon not only the lands and property of all individuals and
corporations, but also the property of the Crown, without leave
or license, and make surveys, examinations, or other necessary
arrangements for fixing the site of the railway, and determining
what portion of the lands will be required for the purposes of
the railway. (4)
6. Having made the surveys as authorized by the Act, the Maps and
company are required to make a map or plan of the route of thep
railway, and a profile showing the variations in level along the
line and the course and direction of the railway, and also the
lands which are intended to be taken for the railway. This is
called the location plan, and the company are required to attach
to it a book of reference, setting out a general description of the
properties which they intend to take, and the names of the
owners or occupants as far as they can be ascertained, and
(1) The fear of the exercise of such an arbitrary power by the Government
has caused some Quebec railway companies to place themselves under the
jurisdiction of the Dom. Act.
(2) Except. See sec. 119.
(3) R. S. Q. 5132.
(4) Sec. 90 (a).
Damage caused by a preliminary survey is prescribed "in six months under
sec. 27 of Cap. 109, R. S. C. Ravary v. Ont. & Que. Ry., M, L. R., 5 S. C.
54. Now one year 51 Vic. Cap. 29, s. 287.
j6 THE RAILWAY LAW OF CANADA.
any other details which may be necessary to make the plan
clearly understood, (i) As a matter of practical working, these
plans generally show by a distinctive color the extent of pro-
perty intended to be taken, designating the land of each different
owner by a separate number for each lot, called the location
number, and indicating the measurement and superficial con-
tents ; and the book of reference is a sort of index of the whole.
Deposit of 7. The plan and book of reference and profile have to be
deposited in the Department of Railways, (2) and it is there ex-
amined and certified by the minister (3) or by his deputy ; and
the company is required to deposit copies in the registry office
of each district or county through which the railway is to pass of
such parts of the plan as relate to the locality. (4)
Notice of 8. Notice must be given in at least one newspaper in each dis-
trict or county of the deposit. (5) These copies of plans are open
to public inspection ; (6) and the deposit and notice are declared
by section 145 to be a general notice to all parties of the lands
which will be required by the railway ; and the compensation for
lands taken and damages is ascertained with reference to the
date of such deposit. (7)
Correction of 9. Should errors and omissions occur in these plans, and in
errors or
the description of the lands or their owners, it is provided that
omissions. _ _ . .
any omission, mis-statement or erroneous description of either
the lands or owners or occupants may be corrected by two justices
(8) on application after ten days' notice given to the owners of
the land. (9) The justices have power to certify as to the errors
(1) Sec. 123.
(2) Public Works R. S. Q. 5163 (2).
(3) Commissioner R. S. Q. ib. (4) Sec. 125.
(5) Sec. 144. (6) Sec. 126.
(7) Held, (affirming Ferguson,}., 12 O. R. 624, that in ascertaining the
compensation to be made to a land owner for land expropriated for a railway
under R. S. C., cap 109, § 8, the value of the part taken (as well as the
increased value of the part not taken, which by subsec. 21 is to be set off)
must be ascertained with reference to the date of the deposit of the map or
plan and book of reference under subsec. 14, and therefoie such value should
include nn increase which may have been caused by or is owin<j to the con-
templated construction of the railway. James c. Ont. & Que. Hy. Co., 15.
O. A. R. i (1887).
(8) Judge of Superior Court, R. S. Q. 5163 (5). (9) Sec. 128.
GENERAL POWERS. 77
or omissions, and their certificate is deposited with the registrar
with whom the plan has already been deposited, and the com-
pany are authorized to make the railway in accordance with the
correction contained in the certificate, (i)
10. Again it may happen that alterations from the original Alterations in
survey or plan have to be made. In such case the company are ^ an'
bound to make a map and profile of these alterations on the same
scale as the first map, and in the same form and containing the
same particulars, and (2) deposit it in the same way with the
registrar of the particular locality affected by the alteration. (3)
11. These are the preliminary steps to the construction of the Construction
railway, for until these have been completed, that is to say> ceeded wit^0
until the location plan and book of reference have been made till plans made
and deposited in the manner already mentioned, the construction and deP°sited-
of the railway cannot be proceeded with, (4) and if alterations
have to be made in the plan, the construction of that portion of
the railway affected by the alterations cannot be proceeded with
until the deposit of the altered plan. (5) If, however, the com-
pany are authorized to construct their railway in sections, they
are not bound to file plans of the whole railway before com-
mencing work on any one section. (6)
12. Having complied with the provisions of the law as regards Further
the surveys and plans, the company may now proceed topowers'
exercise the further powers given it under the Act for the con-
struction of the railway, and it is proposed to here indicate,
generally, the powers which are given to the company, and
afterwards to explain, in detail where necessary, how they may
be exercised.
13. Under section 90 the company may receive voluntary gifts To receive
of lands or other property for the purposes of the railway, andj>
(r) Sec. 129. (2) After approved by Legislature, R. S. (^.5163 (7).
(3) Sec. 130,
(4) See Corp. of Parkdale v. West, L. R., 12 App. Cas. 602; also the
Kingston & Pembroke Ry. Co. v. Murphy, 17 S. C. R. 582, 12 L. N. 115.
See chapter on Eminent Domain.
(5) Sec. 131. See Beauharnois Junction Ry. v. Bergevin, 17 R. L. 113
(Q. B. Que., 1889), and Brooke v. Toronto Belt Line Ry. Co., 21 O. R.
401.
(6) Ont, & Sault Ste. Marie Ry. Co. v. C. P. R. Co., 14 O. R. 432.
THE RAILWAY LAW OF CANADA.
To purchase,
take and sell
lands.
bonuses of money, or bonds, or debentures, or any other benefit
given for the purpose of assisting in the construction of the
road or its maintenance and operation ; but the same may be held
and used only for the purposes of such grants or donations, (i)
14. They may purchase, take and hold of and from any person,
any lands or property necessary for the construction or main-
tenance of the railway, and they are given power to sell or
dispose of, in any way, so much of the property as is not
required for the purposes of the railway. (2)
(1) Par. (J).
(2) Par. (0-
The plaintiff conveyed lot 83 to the defendants in 1847, expressing in
the conveyance that the same had been selected by the company " for the
purpose of establishing the western terminus of their road thereon," " and
the execution of which condition constituted the sole consideration for this
grant."
When plaintiff made this grant he knew that one H. had conveyed the
adjoining lot No. 84 on substantially the same conditions. A passenger
station was built on 83, and a freight house partly on 83 and partly on 84,
which were used until defendants built a passenger station about l/2 mile from
original one.
On a bill to restrain the removal of the western terminus from the land in
question to the city of Detroit.
Held, reversing Spragge, C., that the terminus and depot were not confined
to buildings alone, but extended to the whole premises necessary for conduct-
ing the business of a terminus, and that upon the true construction of the deed
the plaintiff was only entitled to have lot 83 included in the terminus, and had
no right to have all the buildings or any particular building on lot 83. ,
Held, that, even if the deed were read as requiring the establishment of
buildings on the lot in question, that duty had been sufficiently complied with
by their erection. Geauyeau i\ G. W. Ry. Co., 30. A. R. 412.
The plaintiff agreed with the contractors for the construction of a
railway to convey to them in fee simple 6 acres, to be increased to 10 if
necessary, in consideration of their placing the station for the town of Prescott
thereon. After the road had been surveyed and the station buildings erected
on the property, the plaintiff executed a conveyance thereof to the contractors,
which contained a covenant by them to continue and maintain the station on
those lands from thenceforth ; but the deed was never executed by the grantees.
The company continued to use such station for about 10 years, when they
removed it to a distance of one and a half miles.
Held, reversing the judgment of the Court below (28 Gr. 583), that the
Act of the company in thus placing and using the station was a substantial
compliance with the agreement, and that they were not bound to continue
that station there for all time. Jessup v. G. T. Ry. Co., 7 O. A. R. 128.
Held, that a promise of sale followed by actual possession was equi-
valent to an absolute sale, and an hypothecary claim created against the ven-
dor subsequent to such promise of sale was inoperative as against the property
sold. Gosselin c. G. T. Ry. Co., 9 L- C. R. 315, Q. B.
If an agreement to take and pay for land made by the directors cf a rail-
way company before the passing of an Act, to authorize a work which is the
GENERAL POWERS. 79
15. They may construct and carry the railway across the lands To carry rail-
of any person on the line as located, or within one mile of the wa^ac
located line under the general Act, or at such further distance
from the line as they may be sanctioned to do by their special
Act.
16. Under Quebec Act they cannot deviate even one mile un- Deviation,
less authorized by the special Act. (i) But under the Dominion
Act they may change the location of the railway with approval of
the railway committee, in order to lessen a curve or reduce a
gradient, or otherwise to benefit the railway, " or for any other
purpose of public advantage." All the provisions of the Act
apply to the part so changed. But no company shall extend
beyond its termini fixed by the special Act. (2)
subject of that agreement, is valid, its validity will not be affected by the
fact that a part of such agreement relates to compensation for annoyance,
which cannot happen if the land itself is not required to be taken.
And an agreement by which directors bind themselves in the event of their
Bill passing to take land for the purpose of making the railway, and to pay
for it within three months after the passing of the bill, is valid, and its stipula-
tions become enforceable after the passing of the Bill. Taylor v. Chichester &
Midland Ry. Co., L. R., 4 E. & I. App. 628.
Occupation of land by the company without the proprietor's formal consent,
or without the formalities required by the Act, gives to the latter right to an
opposition afin de distraire. Brewster v. Mongeau, 15 R. L. 67 (Q. B.
1887), M. L. R., 3 Q. B. 20.
Where a railway company takes possession of land for the purposes of their
road, with no other permission from the proprietor than that, if they do so,
" it will be at their own risk ; " the proprietor may, even after a lapse of
several years, recover back the land from the company, so long as no indem-
nity has been paid for it. Brewster v- Mongeau and the M. &. S. Ry. Co.
31 L. C.J. 115 (Q. B. 1887).
(1) R. S. Q. 5163(11).
(2) Sec. 120. The provision contained in section 19 of the Consolidated
Ry. Act 1879, that no railway company shall have any right to extend its line
of railway beyond the termini mentioned in the special Act, is inconsistent
with the power given to the Canadian Pacific Ry. Co., under section 14 of
their contract to build branch lines from any point within the Dominion, and
with a declaration in section 15 in the charter, that the main line, branch lines
and any extensions of the main line thereafter constructed or acquired shall
constitute the Canadian Pacific Railway Company ; following this holding, it
was Held, that in the particular case the C. P. R. Co. had a right to build
their road beyond Port Moody in B, C-, the terminus mentioned in their Act
of incorporation. Can. Pac. Ry. Co. v- Major, 13 S. C. R. 233 ; 9 L. N. 410,
1887.
A company built its line to a terminus mentioned in the charter, and then
wished to extend it less than a mile in the same direction. The time for
the completion of the road had not expired, but the company had terminated
the representation on the board of directors, which by statute was to continue
during construction, and had claimed and obtained from the city of K. exemp-
tion from taxation on the ground of completion of the road .
So THE RAILWAY LAW OF CANADA.
Branch lines. ^7. Branch lines, not exceeding six miles in length, may be
constructed for the purpose of connecting any city, town, village,
manufactuie or mine, quarry, spring or well, with the mainline
or any branch, or with any railway worked or leased by the
company, or for the purpose of giving increased facilities to busi-
ness, (i)
Before proceeding to locate or construct any such line, more
than one-quarter of a mile in length, the company must give six
weeks' public notice, in a newspaper in the county affected, of
their intention to apply to the railway committee (2) to sanction
the building and the appropriation of lands therefor under the
compulsory powers of the company. (3) The company must
deposit a plan and book of reference in the registry office of the
places affected ; and the plan must be approved by the railway
committee after the last publication. The order approving
limits the time within which such branch line is to be construct-
ed, not to exceed two years. (4)
Every such company may, for any such purpose, exercise all
the powers given to it with respect to its main line, and each and
every provision of the general and special Acts, which is appli-
To effect the desired extension, it was sought to expropriate lands which
were not marked or referred to on the map or plan filed under the statute .
Held, that the proposed extension was not a deviation within the meaning of
the statute 42 Vic., cap. 9, sec. S, §§ 1 1 D. That the road authorized was com-
pleted as shown by the acts of the company, and upon such completion the
compulsory powers to expropriate ceased ; and per Gwynne, J., that as the time
limited by the charter for the completion of the road had not expired, the
company could still file a map or plan shewing the lands in question, and
acquire the land under sec. 7, subsec. 19, of 42 Vic. cap. 9. Kingston &
Pembroke Ry. Co. r. Murphy, 17 S. C. R. 582, 12 L. N. 115.
Where a railway company were authorized to construct their line " from "
the City of Ottawa to, etc., it was held that they had the right to enter the city
and construct from a point within its limits. Re Bronsdon et al. & the City of
Ottawa, i O. R. 415. And so also where the company were authorized to
construct a railway "by way of" Montreal, etc. Evans v. Atlantic & N.
W. Ry. Co., S. C. Mont. 23 May, 1887.
(1) Sec. 121.
(2) Lieutenant Governor R. S. Q. 5132 (17).
(3) Sec. 121.
.(4) Ibid.
GENERAL POWERS. 8r
cable to such extension, shall extend and apply to every such
branch line of railway, (i)
Under the Quebec Act, branch lines not exceeding 6 miles in
length may be built from any terminus or station of the railway,
on obtaining from the local municipality a by-law sanctioning
the same; but lands cannot be taken for such purpose without
the consent of the owners. Such branches are not subject to the
restrictions as to quality and construction of the main line con-
tained in the charter or general Act. (2)
18. The company may for the purposes of construction cut To fell trees,
down any trees within six rods from either side of the railway. (3) cross» etc.,
railways.
19. They may construct the railway across any other railway To construct
at any point on its route, or cross, intersect, join and unite their works on>
' J across, or un-
der railways,
m Sec 122 streams, high-
li; sec. 122.
Under special reference of the disputes between the Nothern Ry. Co. and
the town of Barrie, as to the construction of a branch line into the town, it
was Held, that the directions of the arbitrator, as to the conveyance of certain
lands by the company and a release of their claims as to other lands, were
authorized, and the latter not objectionable for omitting to state to whom it
was to be made ; and that as to the amount awarded, if, as contended, the
corporation could obtain no damages beyond what they had expended in
procuring the land, it should be assumed no more was given. Corp. of Town
of Barrie & Northern Ry. Co., 22 U. C. Q. B. 25.
(2) R. S. Q. 5132 (16). (N. B. This clause is not contained in the Domi-
nion Act.)
(3) Sec. 90 (e). Railway companies, in exercising this right, and causing
damage thereby, may plead that this right forms part of the damages to be
covered by the compensation awarded to the person whose land is expropri-
ated, and he has no action to recover any additional amount for the value of
trees within this limit which may be cut down and removed by the company.
Evans v. A. & N. W. Ry. Co., M. L. R., 6 S. C. 493.
The defendant?, a railway company, incorporated under an Act of the Par
liament of Canada, built their line through land owned by the Crown, but
which was under a timber license from the Ontario Government.
The defendants cut down and removed the timber both within and outside
the six rod limit, mentioned in subsec. 12 of sec. 6 of the R. S. C., cap. 109.
Held, that under the subsection, the timber cut within the six rods became
the property of the railway. McArthur v. The Northern & Pacific Junction
Ry- Co. & Hendrie et al., 15 Ont. R. 733.
6
82 THE RAILWAY LAW OF CANADA.
railway with any other railway, (i) subject to the provisions of
the Act to which attention will be called later.
To divert JJO. They may even interfere with other railways, with tram-
highways, ways, canals, highways, (2) rivers, or streams which the railway
intersects or touches, to the extent of constructing in or upon
them, across, or under them, temporary or permanent inclined
planes, tunnels, embankments, aqueducts, bridges, roads, ways,
passages, conduits, drains, piers, arches, cuttings and fences, (3)
provided always, be it understood, that these are necessary for the
purpose of the railway, and subject to special provisions in cer-
tain cases.
In the case of rivers, streams and highways, the company
may divert or alter, either temporarily or permanently, their
course, or raise or sink their level, as may be required. (4)
(1) par. (/). Arbitration as to crossing under sec. 9, subsec. 15, cap. 165
R. S. O. Appeal therefrom, etc., etc., Vide C. V. Ry. Co. v. G. W. Ry.
Co., 4 O. A. R. 532.
(2) See G. T. Ry. v. Miville, 14 L. C. R. 469 (Q. B. 1864), P- 83
infra.
A street railway company was authorized to lay its track " along the high-
ways in the parish of M.," leading into the streets of the city.
Held, that the company, in laying its track inconveniently close to the
property on one side of the highway, and thus apparently favoring the pro-
perty on the other side, had not exceeded its powers, and an action for the
abatement of the nuisance was dismissed. The Atty. Gen. v. The M.
C. P. Ry. and The Trustees of the M. Turnpike Roads, I L. N. 580, S. C.
1878.
Where works, for the construction of a railway authorized by Statute,
passing in the street of an incorporated town, injure the property of an
individual, his action of damages will lie against the railway company and
not against the municipal corporation. Lambert & The Corporation of
Three' Riveis, Q. B., Ramsay's Digest 221 ; 10 R. L. 359 Q. B. The City
of Three Rivers v- Lessard, 10 R. L. 441, Q. B.
Municipalities alone have the right to sue for removal of obstructions and
encroachments on the public streets, and individuals have no right of action
in the premises unless in the case of real and special damage incurred by
them. Bourdon i\ Bernard et aL, 15 L. C. J. 60, Q. B. 1870.
(3) Par. (£•). And see sec. 183 et seq. as to highways ; and Vide Atty.
Gen. v. The M. C. P. Ry. Co. and The Trustees of the Turnpike roads,
i L. N. 580. 1878 ; Lambert v. Corp. of Three Rivers, 10 R. L. 359, Q. B ;
Ramsay's A. C. 221 ; Bell v. The City of Quebec, L. R., 5 App. Cas. 84 ;
Regina v. G. T. R. Co., 15 U. C. Q. B. 121 ; In re Day & Town of Guelph,
ibid. 126; The Caledonian Ry. Co. v. Walkers Trustees, L. R., 7 App.
Cas. 259 ; Fleming v. The Newport Ry. Co., L. R., 8 App. Cas. 265 ;
Ricket v. Metropolitan Ry. Co., L. R., 2 E. & 1. App. 175 ; Corporation
of Parkdale v. West, 12 App. Cas. 602.
(4) Par. (k).
GENERAL POWERS. 83
21. Besides taking the lands they may require for the railway, To make
they have the right to make drains or conduits in or through
lands adjoining the railway, for the purpose of conveying water
either to the railway or from it. (i)
22. And where drains or sewers, or water or gas pipes, orT° alter posi-
telegraph, telephone or electric light wires or poles, interfere in
any way with the construction or operation of the railway, the etc.
company may divert them or alter their position. (2)
23. Whilst having the right to exercise these powers of Proviso,
division and alteration with regard to rivers, streams and high-
ways, and water and gas pipes, drainage, or telegraph, telephone
or electric light wires or poles, the company are required to
restore the same as nearly as possible to their former state, or
at all events to put them in such a state as not to materially
impair their usefulness. (3)
24. The powers of the company include also the right to Telegraph
construct or acquire electric, telegraph and telephone lines for ^ te ep c
the purposes of its undertaking. (4) Railway companies under
the Dominion Act have not the power to construct or acquire
telegraph or telephone lines for commercial business, that is to
say, for the transmission of messages for the public ; their
powers in this respect can be exercised only for the purposes of
the railway, unless specially authorized by the special Act. But
under the Quebec Act, (5) they have the power to establish
telegraph lines along the whole extent of the railway, which lines
may be used by the public generally, under such rules and
regulations as the company may fix.
(1) Par. (t). In an action of damages by reason of plaintiff's land being
overflowed in consequence of neglect of company to keep ditches on each
side of railway in proper order.
Held, in appeal, that as the ditches in question had been cut by defen-
dants to carry off surplus water, and were so cut as to conduct the water
into a watercourse running through plaintiffs land, which was thereby
flooded, and damage caused, that defendants were liable notwithstanding
the rule of law " that he who, in the construction of any work upon his
property, uses his right without violating any rule of law or of usage or title
or contrary possession is not held foi the damage resulting therefrom.
The G. T. Ry. Co. and Miville, 14 L. C. £..469, Q. B. 1864.
(2) Par. (/). (3) Sec. 91. (4) Sec. 90 (;»).
<5) R. S. Q. 5176.
THE RAILWAY LAW OF CANADA.
To make and
maintain rail-
way.
To erect
buildings, etc.
To exercise
powers be-
yond Inter-
national
boundary.
25. In addition to the powers mentioned, the company are
authorized, as a matter of course, to make and complete their
railway, and to alter it and to keep it in repair ; and the railway
may be worked by any mechanical power, either steam, electri-
city or the atmosphere, or by animals, or by any combination of
them, (i)
26. They may also erect and maintain all the buildings, sta-
tions, depots, wharves, etc., (2) that are required for the railway,
and construct the engines, cars and other machinery necessary
for the working of their railway and the accommodation and use
of their passengers, freight and business, or acquire the same by
purchase ; (3) and as a result of the foregoing powers, they are
further given power to carry passengers and goods on the
railway, and to fix the time and manner in which they shall be
carried and the tolls and compensations for such carriage, (4)
and from time to time alter, repair, or discontinue the before
mentioned works or any of them, and substitute others in their
stead. (5) Then comes a wide and general clause empowering
the company to do all other acts necessary for making, main-
taining or altering or repairing and using the railway. (6)
27. In 1890 Parliament extended these powers, so that any
company operating a railway from any point in Canada to any
point on the International boundary line may exercise beyond
such boundary the powers which it may exercise in Canada, in
so far as they are permitted by the laws in force there. (7)
(1) Sec. 90 (£).
(2) Vide, London, Brighton & South Coast Ry. Co. r. Truman, L. R.,.
II App. Cas. 45.
Under sec. 46 C. 109 R. S. C. railway companies are bound to pay for
damages caused by the erection of snow-sheds, where the damage is caused to
the property itself on which the sheds are erected, and diminishes its value.
Action for such damages can be taken by the owner of the land, although not
in possession. Sanche v. C. P. R. Co., 16 R. L. 296.
(3) Par. (/). (4) Par. <»• (5) Par. (/).
(6) Par. (g). Where it was alleged that the G. T. Ry. Co. were carrying
on the business of carters by conveying freight to and from the city ana
their depot, to the detriment of the public and carters of Montreal. Held,
the company had power to employ particular carters exclusively for so collect-
ing and delivering freight, and that this was not a violation of their charter,
but was essential or at least incidental to their business as common carriers,
and fell within the meaning of the Act respecting railways (C. S. C., c.
66, § 8), and that an injunction would not lie. The Atty. Gen. v. The G. T^
Ry. Co., i6L. C. R. 91.
(7) 53 Vic., c. 28.
GENERAL POWERS. 85
28. And by the same Statute as amended by 55-56 Vic., cap. To sell lands
27, railway companies were given power to acquire, seller other-^^^
wise dispose of lands obtained from the Crown or any corpor- otherwise.
ation or other party.
29. Whilst the Legislature has given railway companies these Proviso as to
extensive powers, it has at the same time endeavored to protect compensation
the public in every possible way, as we will have occasion to caused by
point out later: suffice it for the moment to call attention to the exercise Pf
... ... powers.
general provision contained in the Act, that the company shall,
in the exercise of their powers, do as little damage as possible,
and make full compensation Li the manner provided therein,
and in the special Act, to all parties interested, for all damage
by them sustained by reason of the exercise of such powers, (i)
It is not convenient to discuss at this point the meaning
and extent of this clause. It is sufficient to here point out that
the compensation which it is provided railway companies shall
make for damage caused in the exercise of their powers is the
statutory compensation provided by the Legislature to be
recovered in the manner thereby fixed. And any further reference
at the present to this subject may be concluded by the observa-
tion that, in the opinion of the author, the only remedy of the
party suffering damage caused by railway companies in the
lawful and proper exercise of their corporate powers, under
authority of Parliament, is that provided by Statute ; but for
damage caused by the fault or negligence of railway companies
or their servants, in the exercise of these powers, the party
suffering has his recourse at common law. (2) This is a wide
subject, which will have to be more fully considered when we
come to treat in detail of the liability of railway companies for
damages caused in the exercise of the various powers conferred
upon them by Statute.
(i) Sec. 92.
London & Brighton Ry. Co. ». Truman, n App. Cas. at pp. 45 and 61 ;
National Telephone Co. v Baker, 3 R. 318 ; C. C. 1053-54-
CHAPTER V.
FINANCING OF RAILWAY COMPANIES.
1. Payment of right of way, plant.
contractors, etc., by issue of paia-
up stock.
2. Preferred stock.
3 Increase of stock.
4. Subsidies and bonuses .
5. Issue of promissory notes and
bills.
BONDS, DEBENTURES, ETC.
6. Issue of, authorization of share-
holders.
7. Time and plac: of payment.
Rate of interest.
8. Form.
9. Sale and pledge .
Purpose to be applied to.
10. Limit of issue must not be ex-
ceeded.
1 1 . Re- issue.
12. Restriction oj powers (now re-
moved) .
13. Mortgage deed.
14. Bonds a fint claim.
15. Trustees for bondholders.
1 6. Bondholders mortgagees.
1 7. Interest.
Coupons.
1 8. Bondholders' position .
19. Powers of bondholders .
20. Transfer.
21. Jurisprudence.
22. Power to borrow and mortgage.
23. " give lien on railway
and alienate lands.
24. Pcwtr to alienate franchise.
Sale of railway.
Bonds, a first charge on the
undertaking, etc.
Undertaking.
Tolls and income.
After acquired property.
Vendor's lien .
Rolling stock— part of realty ?
Rails and other supplies.
Formalities in making and
issuing bonds — waiver.
Directory requirements as to
formalities.
Stolen bonds.
Pleading want of formality .
Payee not mentioned.
D: Ventures negotiable instru-
ments.
Coupons and interest thereon.
Place of piesentment and pay-
ment.
Suit upon (.oupo>is.
Transfer and registration of
bonds.
Default.
" At the next general meeting.' '
" Raising' money'*
" Best terms and conditions.'"
Distinction between pledge and
deposit as collat ral stcurit\ .
Extent of borrowing power —
condition precedent.
Excessize borrowing power cured
by subsequent Act .
Company not restricted to bonds
alone as security for monies dor-
rowed.
FINANCING OF RAILWAY COMPANIES. 87
TRUSTEES.
5 1 . Failure to act.
52. Rights of bondholders to protect
their interests.
53. Notice.
54. Trustees as common carriers .
55. Who are trustees.
56. Distinction between mortgage and
hypothec under the civil and
common laiv.
1. Before considering the general powers of railway companies Payment of
that are to be exercised under the Statute, we must consider "^ °^ay'
what are the financial means of which the company may avail tractois, etc.,
itself in order to obtain the necessary funds for the purpose of the by 'ssue °f ,
paid-up stock.
construction and operation of the road. First of all, there is the
capital stock, which the directors have the power to call in, in
the manner already mentioned, (i) The money thus obtained
can only be used for the payment of the cost of the preliminary
expenses of the company, the making of surveys, plans and esti-
mates, and the construction, maintenance, operation and other
purposes of the railway generally. (2)
There is also the means provided by sec. 39 for the pay-
ment for right of way, plant, rolling stock or materials of any
kind, and the services of engineers and contractors, by the issue
of paid-up stock. (3)
(1) Supra, p. 63.
(2) Sees. 33 and 35.
Vide Cohen v. Wilkinson, 12 Beav. 138, I Mac. & G. 481 ; Bagshaw v.
Eastern Union Ry. Co., 7 Hare lit, 2 Mac. & G. 389; Hodgson v- The
Earl of Powis, 12 Beav. 392, 529 ; Graham v. Birkenhead, etc,, Ry. Co. ,
2 Mac. & G. 146.
(3) See page 68 supra. An agreement between a person to take, and a
company to give, fully paid shares, in payment for property or services, is not
satisfied by the company allotting shares not fully paid up any more than a
contract for cotton would be satisfied by the company supplying bark.
(Bowen L. J. , 1887.) Arnot's case, re Barangah Oil Refining Company,
L. R., 36 Ch. D. 711 ; Anderson's case, 7 Ch. D. 75 ; i Ch. D. 124.
Thus where directors had agreed to transfer fully paid-up shares into A's
name as security for an advance, the court held that they had no power to
put A on the register for part-paid shares. Ashworth v. Bristol Ry. Co., 15
L. T. R. 561. The company does not fulfill its contract in such a case unless
it issues fully paid-up shares, which will be recognized as such in law. If it
omits to make them so by registering a contract, neither the company nor its
liquidator can enforce the contract. Arnot's case, 36 Ch. D. 702. But see
re London Celluloid Co., 39 Ch. D. 190.
The allottee is in such case entitled to repudiate the shares. Re Addlestone
Linoleum Co., 37 Ch. D. 191 ; Mudford's claim, 14 Ch. D. 634 ; ex-parte
Appleyard, 1 8 Ch. D. 587.
Where a company had agreed to pay for a concession in fully paid-up
THE RAILWAY LAW OF CANADA.
Preferred JJ. The company may also raise money for the purpose of the
undertaking, by the issue of what is called preferred stock.
By preferred stock is generally understood stock upon which
the dividends, at a certain fixed rate, are guaranteed by the
company and are paid in preference to the dividends upon the
common stock, — that is to say, that a holder of preferred stock is
entitled to be paid a dividend at the rate specified, out of the
net profits of the company, before any holder of common stock
is entitled to any payment of dividends. In the absence of
shares, but, on account of the vendor's alleged delay in handing over the
concession, the company had registered him as a holder of the shares as unpaid,
the court ordered the register to be rectified, the company to enforce any
claim it might have against the vendor in the usual way. Ex-parle Wilson,
re Foreign Gas Co., W. N. 1874, 139.
A transferee of vendor's shares allotted as fully paid-up (but not in cash or
under a registered contract) is in no better position than his transferor, and
will be treated in the winding-up as the holder of unpaid shares, if the com-
pany has done nothing to mislead the transferee. Crickmer's case, re Carri-
beau Co., 44 L. J. Ch. 595; affirmed, lo Ch. App. 614. Blyth's case, re
Heaton Steel & Iron Co., 4 Ch. D. 140. But see re British Farmers' Pure
Linseed Cake Co., 7 Ch. D. 533, affirmed, 3 App. Cas. 1004, explaining Blyth's
case.
If a vendor transfers paid-up shares to a director to qualify him, the director,
though liable for a breach of trust, cannot be treated as the holder of unpaid
shares. Carling's case, i Ch. D. 115.
Where a contract to allot shares as fully paid-up has been registered, the
registration enures to the benefit of the nominee of the allottee. Kirby's case,
re Dominion of Canada Plumbago Co., 46 L. T. R. 682; following Carling's
case.
If a company has registered an allottee as holder of shares fully paid-up,
or issued certificates representing the shares as paid-up (though in fact there
has been no payment in cash or registered contract), it will be estopped by
such admission, and likewise will the liquidator, as against a transferee without
notice, from saying that the shares are not paid-up in cash. Nicolls's case,
re British Farmers' Pure Linseed Cake Co., 7 Ch. D. 533. Affirmed (H. L.)
sub.nom. Burkinshaw p.Nicolls, 3 App. Cas. 1004; re London Celluloid Co.,
39 Ch. D. 190, 205.
And this title by estoppel the transferee may pass even to a person who has
notice that the shares have not been paid-up ; e.g., an officer or solicitor of the
company. Barrow's case, 14 Ch. U. 432 ; commented on re London Celluloid
Co., supra ; Turpin's case, W. N. 1870, 77. And see, re A. W. Hall &Co.,
37 Ch. D. 712.
But the doctrine of Burkinshaw v. Nicolls does not apply where transferee
can be proved to have had notice, express or constructive, that the shares
were not in fact paid-up ; the burden of such proof is on the liquidator. Re
London Celluloid Co., 39 Ch. D. 190; re Halifax Sugar Refining Co., W. N.
1891, 2, 29 ; re New Chile Gold Mining Co., W. N. 1892, 193. Nor does
this doctrine apply where the shares are taken not on the faith of the com-
pany's certificate, but upon representations made by the directors. Re Vulcan
Iron Works Co., W. N. 1885, 120; ex parte Sandys, re Railway Publishing
Co., 42 Ch. D. 98.
FINANCING OF RAILWAY COMPANIES. 89
special legislative authority, preferred stock cannot be issued
without the consent or acquiescence of the holders of the
ordinary or common stock of the company, (i) By consent is
meant their lawful consent given at a meeting properly called for
the purpose; but the term " acquiescence" has a much wider
meaning. It has been held by the courts in New York that a
holder of common stock, who had not expressly consented to
the issue of preferred stock, but who had allowed the stock to
be issued and preferential dividends paid thereon without taking
action, could not afterwards validly attack the issue of the stock.
(2) It must be always understood that preferred stock cannot
be issued beyond the amount of the capital stock, authorized by
the charter of the company, without special legislative authority
therefor ; or unless the capital is increased as indicated in the
next paragraph.
3. The original capital stock of the company may be Increase of
increased, with the approval of the Governor in Council, (3) to £t<
any amount, (4) but this increase must be sanctioned by the vote
of the shareholders holding at least two-thirds of the subscribed
stock of the company, at a meeting specially called for that
purpose by the directors, by notice delivered to each shareholder
personally, or properly directed to him and deposited in the
post office at least twenty days previous to such meeting, and
this notice must state the time, place and object of the meeting,
and the amount of the proposed increase. (5) Of course this
increase of capital stock may be either in the form of common
stock or preferred stock, and it is, especially in the United
States, a favorite method of raising money for the purpose of the
company, to make such subsequent issue preferred stock.
Under our Act, it would seem that this increase of capital stock
is subject purely to the approval of the Governor in Council ; (6)
but where the increase is allowed, as in many of the States, upon
the mere sanction of the shareholders, in meeting assembled, it
has been frequently held that such increase could not be made
(l) Harrison v. Mexican Ry. Co., L. R. 19 Eq. 358 ; Matthews v. Great
Northern Ry. Co., 28 L. J. Ch. 375.
• (2) Hoyt v. Quicksilver Mining Co., 17 Hun. 169.
(3) Not required by Quebec Act. (4) Sec. 37.
(5) Sec. 37. (6) Ibid.
90 THE RAILWAY LAW OF CANADA.
until the whole of the original capital stock had been subscribed
and paid-up. This would seem to be consonant with logic
and reason, and it is doubtful whether an increase of stock
would be authorized by the Governor in Council here, unless it
was shown that the whole of the original capital stock had been
subscribed and paid-up, and that it was necessary and proper for
the purposes of the company to obtain a further amount of
money by an increase of the stock.
Subsidies and 44 jn addition to this, railways are frequently assisted by
public money granted by way of subsidies by the Legislature
by grants of public lands, and by bonuses from municipal cor-
porations, (i)
(i) An act of the Legislature of Canada having provided that a railway
company should be entitled to 4,000,000 acres of the waste lands of the
Crown on completion of their road, and a proportionate quantity of such lands
on completion of 20 miles of the line: Held, that a petition of right presented
to the Lieutenant Governor of Ontario, addressed to Her Majesty, was the
proper proceeding for the purpose of enforcing the claim of the company
against the Province. Can. Central Ry.Co. c. The Queen, 20 Gr. Chy. 273.
A by-law of the defendant corporation, providing for the delivery of
debentures to a railway represented by the plaintiffs as a bonus to aid them in
constructing their railway, having been adopted by a vote of the rate-payers,
was read a second and third time, and passed by the council, but vas neither
signed nor sealed because a month had not elapsed from its first publication,
the notice required by 36 Vic., c. 48, s. 231, ss. 3, to be appended to the
copy of the by-law as published, having stated that the by-law wo.uld be
taken into consideration after a month.
Subsequently a motion to read the by-law a second and third time was lost.
Later on after election of new council it was finally passed, signed and
sealed. The railway company were bound to begin within three years and
to finish the road within eight years, which they failed to do within the time.
Held (affirming 8 O. R. 201) that the plaintiffs were not in a position to
enforce the delivery of the debentures after the lapse of nine years from the
passing of the by-law, when a total change of circumstances had taken place,
and when the period fixed by plaintiff's charter for the completion of the
railway had expired. Canada Atlantic Ry. Co. i>. The Corporation of the
city of Ottawa, 12 O. A. R. 234, affirmed in Supreme Court, 12 S. C. R. 365.
In consideration of the bonus granted by the plaintiffs to the defendants,,
the latter agreed: (i) To bring their railway from Ingersoll to some point
on the line of the Southern Railway, not more than % a mile east of the
present passenger railway station of the Canada Southern R}'. Co. at St.
Thomas ; and (2) to run all their passenger trains to and from a small
station on Church street. The defendants performed the first part of the
agreement, and also the second, as long as the Canada Southern Ry. Co. per-
mitted the u«e of their line from the point of junction to the small station on
Church street ; but on the refusal of the other company to continue this
privilege, the defendants discontinued the performance of this part of their
agreement.
FINANCING OF RAILWAY COMPANIES. 91
5. Besides these means of obtaining money, the directors have Issue of pro-
power to borrow money in various ways. The company, acting ™ ^"0
Held, that this was not a case in which defendants should be directed
specifically to perform their contract as to the Church street station, but that
the plaintiffs were entitled to a reference as to damages for breach thereof.
The Corporation of the city of St. Thomas v. The C. V. R. Co., 15 O. R.
673, and in Appeal, 12 O. A. R. 273.
A by-law of the defendant municipality provided that on the completion
ready for running of the E. &H. Ry.from Chatham to the C. S. Ry. crossing,
by a named day, and the construction and completion within two years from
the date of such by-law of the whole track and road, with stations, freight
sheds, sidings at such crossing and upon the completion of a bridge across the
Thames, and the complete construction of the road in other respects to the
satisfaction of the Commissioner of Public Works, and upon the company run-
ning said road with all necessary accommodations for the public for one week,
the defendants should forthwith, within 2 years from the day the by-law took
effect (30th Dec., 1882), deliver to the E. & H. Ry. Co. debentures to the
amount of $30,000. By an agreement made prior to the passing of the by-law,
the company covenanted with the defendants amongst other things to run the
road when completed, and to build a station at or near the corner of Col-
borne and William streets, and in consideration thereof the defendant agreed
to submit the by-law. Upon an action by the assignee of the E. & H. Ry.
Co. to compel delivery of the debentures, the defendants counter-claimed for
damages for breach of agreement and for a specific performance. The
engineer named by the commissioner of P. W. granted a certificate as to
completion of the work. The defendants claimed the right to have con-
tinuous use of the station "at or near the corner of Colborne and William
streets " enforced by the Court.
Held, affirming Cameron, C. J., that the certificate of the engineer estab-
lished a sufficient performance coupled with the fact that the road had actually
been run for a week, that the covenants in the agreements were independent,
and non-compliance would not be a valid defence to the demand ; but that
under the agreement and by-law the station formed part of the general under-
taking, and the obligation could not be limited to its mere construction as
separate from its use, and defendants were entitled to specific performance as
respects such station; and that there should be reference to asceitain the
damages of the defendants on their counter-claim.
Held, also, that any objections to the by-law were cured by its registration
under 44 Vic., c. 24, § 28, no action to set it aside having been taken within
three months, and that the Statute applied although the debentures had not
been issued. Bickford v. Chatham, 140. A. R. 32. Affirmed in Supreme
Court with minor differences, 16 S. C. R. 235.
A by-law to aid a railway company by $75,000, was introduced into the
county council of Peterborough. The by-law was read twice only, and was
subsequently voted on by rate-pa) ers. When the voting took place there
was no power in the municipality to grant a bonus, but subsequently an
Act was passed, declaring the by-law as valid as if it had been read a third
time, and that it should be legal and binding as if passed after the Act. The
company subsequently notified the council to send the debentures to trustees
appointed under an Act 34 Vic. (Ont.), c. 48, and the council next year
formally repudiated all liability under the by-law by notice, and had collected
no money or made a sinking fund.
The company until seven years later made no demand for debentures and
•then applied for a mandamus to compel delivery to the trustees.
Held, that the effect of the Statute passed 34 Vic. (Ont.), c. 48, apart
92 THE RAILWAY LAW OF CANADA.
by the president, or vice-president, or any other officer author-
ized by the by-laws of the company, may become a party to pro-
missory notes, or bills of exchange, countersigned by the secretary
from any effect it might have of recognizing the existence of the railway
company, was not to legalize the by-law in favor of the company, but was
merely to make it valid as if read a third time, or as if the municipality had
power to give a bonus to the company, and there being certain defects in the
by-law not cured by the Statute, the appellants could not recover the bonus
from defendants. '1 he Grand Junction Ry. Co. v. The Corporation of
County of Peterborough, 8 S. C. R. 76. Privy Council, judgment maintain-
ing, but on other grounds. Vide~L,. R., 13 App. Cas. 136.
Under 44-45 Vic., c. 40, § 2 (P. Q.), passed on a petition of the
Quebec Central Railway Company, after notice given by them asking for an
amendment of their charter, the town of Levis passed a by-law guaranteeing
to pay to the Quebec Central Railway Company the whole cost of expropria-
tion for right of way for the extension of their railway to deep water, over
and ab~>ve $30.000. The appellants (rate-payers of Levis) applied for and
obtained an injunction to stay further proceedings on this by-law on the
ground of illegality.
The proviso in section 2 of the Act under which the corporation of the town
of Levis contended that the by-law was authorized is as follows : " Provided
that within thirty days from the sanction of the present Act the corporation of
the town of Levis furnishes the said company with its said guarantee and
obligation to pay all excess over $30,000 of the cost of expropriation for the
right of way."
By the Act of incorporation of the town of Levis, no power or authority is
given to the corporation to give such guarantee. The Statute 44-45 Vic., cap.
40. was passed 3Oth June, 1881, and the by-law 2yth July following.
Held (reversing Q. B.), that the Statute in question did not authorize the
corporation cf Levis to impose burdens upon the municipality which were
not authorized by their Acts of incorporation or other special legislative
authority, and therefore the by-law was invalid and injunction sustained. The
Quebec Warehouse Co. r. the Town of Levis, n S. C. R. 666.
Held, by Supreme Court affirming judgment of Q. B., that a debenture
being a negotiable instrument, a railway company that has complied with all
the conditions precedent stated in the by-law to the issuing and delivery of de-
bentures granted by a municipality is entitled to s-aid debentures free from any
declaration on their face of conditions mentioned in the by-law to be performed
in future, such as the futuie keeping up of the road. Article 962 Municipal
Code, L. C. Parish of St. Cesaire v. MacFarlane, 14 S. C. R. 738.
A municipal corporation under authority of by-law issued and handed to
the Treasurer of the province of Quebec $50,000 of its debentures as a subsidy
to a railway company, the same to be paid over to the company in the manner
(and subject to the same conditions) in which the Government provincial
subsidy was payable under 44-45 Vic., cap. 2, \ 19, when the road was com-
pleted and in good running order, to the satisfaction of the Lieutenant Governor
in Council. The debentures were signed by S- M., who was elected warden,
and took and held possession of the office after W. J. P. had verbally resigned
the position.
In an action by the railway company to recover from the Treasurer of the
Province the $50,000 debentures after the Government bonus had been paid,
in which action the municipal corporation was mis en cause as a co-defendant,
the Provincial Treasurer pleaded by demurrer only, which was over-ruled, and
FINANCING OF RAILWAY COMPANIES. 93
for amounts not less than $100. (i) Notes and bills of exchange
so drawn and signed are binding upon the company without the
necessity of having the seal of the company affixed, and it is
provided that every such note or bill of exchange shall be pre-
sumed to have been made with proper authority until the con-
trary is shown. (2) But the company is of course not author-
ized to issue any note or bill payable to bearer, or intended to be
circulated as money or as the note or bill of a bank. (3)
Bouds, Debeutures, Etc.
6. The directors may also, under the authority of the share- Issue of,
holders given at a special general meeting of the shareholders, authorization
called after due notice as required for any special meeting of the holders,
company, provided that two-thirds in value of the subscribed
stock of the company is represented at the meeting by qualified
the County of Pontiac pleaded general denial and that the debentures were ille-
gally signed.
Held, that the debentures signed by the warden de facto were perfectly
legal.
"lhat as the Provincial Treasurer had admitted by his pleadings that the
road had been completed to the satisfaction of the Lieutenant Governor in
Council, the onus was on the municipal corporation mis en cause to prove that
the Government had not acted in conformity with the statute. Corporation of
County of Pontiac v. Hon. J. G. Ross, 17 S. C. R. 406.
In consideration of a bonus granted by the plaintiffs, the W. G. & B.
Ry. Co. covenanted: "To erect and maintain a permanent freight and
passenger station at G." Shortly afterwards the road was leased, with notice
of this agreement to the defendants, who discontinued G as a regular station,
merely stopping there when there were any passengers to be let down or
taken up.
Held, affirming the decree of Spragge, J., 25 Gr. 86, that the mere
erection of station buildings was not a fulfillment of the covenant, and that
the municipality was entitled to have it specifically performed. The corpora-
tion of the township of Wallace v. The G. W. Ry. Co., 3 O. A. R. 44.
(i; Sec. 98.
(2) Ibid. Sec. 5 of 16 Vic., cap. 241, gives power to the Midland Ry.
Co. to become parlies to bills, and enacis : " Any bill of exchange drawn,
accepted or endorsed by the president of the company, with the counter-
signature of the secretary of the company, and under the authority of a quorum
of a majority of the directors, shall be binding on the company," etc., etc.
Vide report of case and Act. A bill of Exchange addressed to the President
Midland Railway, Port Hope, was accepted as follows : — "For the Midland
Railway of Canada. Accepted, H. Read, Secretary; Geo. A. Cox, Presi-
dent ; " the latter being then the president of the company. Held, affirming
Q.B. (44 TJ. C. R., 542), That the defendant Cox was personally liable
(Patterson & Morrison, J. J. A., Diss.). Madden v. Cox, 5 O. A. R. 473.
(3) Sec. 98.
94 THE RAILWAY LAW OF CANADA.
shareholders, (i) issue bonds, debentures, or other securities,
signed by the president or other presiding officer, and counter-
signed by the secretary. (2)
The issue of these bonds is subject to the provisions contained
in the general Act, and to any special provisions which may be
contained in the charter of the company.
Time and 7. They may be made payable at such times and places, and
place of pay- jn SU(,j1 manner} an(j may ^Q^ suc\-l rate of interest, not
Rate of exceeding six per cent., as the directors may think proper. (3)
interest .
Form. 8. They are generally issued in printed form, and it is pro-
vided that the signatures to the bonds or debentures may be
engraved. (4)
Sale and 9. These bonds or debentures may be issued, sold or
, pledged by the directors, at the best price and on the best terms
Purpose to be r J _
applied to. and conditions that they can obtain, for the purpose of
raising money for the prosecution of the undertaking, (5) but
none of these debentures may be fora less sum than $100. (6)
Limit of issue 1O. It must be remembered that if any limit is fixed by the
must not be Specjai Act, the amount of bonds or debentures to be issued
exceeded.
must not be exceeded. (7)
Re-issue. 11. The power of issuing bonds is not exhausted by 'the
total authorized issue, but may be exercised from time to time
upon the bonds constituting such issue being withdrawn or paid
off and cancelled. (8)
Restriction of 12. Previous to the passing of 55-56 Vic., cap. 27, the issue
owers (now Qf ^Q^^ or debentures was prohibited until 20 per cent, of the
cost had been actually expended on the work ; but by that Act
this restriction has been removed.
Mortgage 13. These bonds or debentures are secured by a mortgage
deed. deed, by which a mortgage and lien may be created upon the
(1) No restrictions under Quebec Act as to meeting, etc., company may
borrow and issue bonds, etc., and hypothecate the lands, tolls, etc., of the
company as security. R. 8. Q. Art. 5132 (n).
(2) Sec. 93.
(3) Sec. 93. (4) Ibid.
(5) Ibid., ss. 2. (6) ]bid., ss. 3.
(7) Ibid., ss. 4. (8) Ibid.,ss. 4.
FINANCING OF RAILWAY COMPANIES. 95
whole of the property, assets, rents and revenues of the company,
both present and future, as may be described in the deed; (i)
but the rents and revenues of the railway are subject in the first
instance to the payment of any penalty imposed for non-com-
pliance with the requirements of the Act respecting returns to
the minister, and next to the payment of the working expenses
of the railway, which payments take precedence of the rights of
the holders of the bonds. (2)
By the mortgage deed, any powers, rights and remedies may
be given to the bondholders or the trustees, not inconsistent
with the provisions of the Act, or the holders may be restricted
in the exercise of any power, privilege or remedy granted by the
Act. (3)
14. These bonds or debentures so issued constitute a first Bonds a first
preferential claim and charge upon the property of the company, c aim'
and its franchises, tolls, income, rents and revenues, and all
property of every kind and description after the satisfaction of
the payments just mentioned. (4)
lo. By the mortgage deed securing the bonds or debentures, Trustees for
trustees are appointed, in whose favor, as representing the
holders, all the property, revenues and franchises of the company
are mortgaged ;
16. And each holder of the bonds is deemed to be a mortgagee Bondholders
pro rata with all the other holders, but no proceedings can bemoltgagees'
taken by law or under the Act to enforce payment of these
bonds, or the interest upon them, except throught the trustees
appointed by the mortgage deed. (5)
17. The interest on these bonds is generally made payable interest,
semi-annually, at a fixed date, and detachable coupons are affixed Coupons,
to the bonds, which are generally made payable to bearer, either
at the office of the company or more generally at some bank, (6)
(1) Sec. 94.
(2) Ibid. (3) Ibid., ss. 2.
(4) Sec. 95. (5) Ibid., ss. 2.
(6) Article 1069 of the Civil Code applies to the coupons of bonds,
and interest runs on such coupons from the dates they respectively fall due,
without proof that the debtor was put in default otherwise than by the mere
lapse of time. Desrosiers v. M. P. & B. Ry., 28 L. C. J. I, in Review 1883.
As to the validity of bonds issued when the conditions imposed on the
96 THE RAILWAY LAW OF CANADA.
Bondholders' 18. It will be seen at once that by means of the issue of
bonds and debentures such as these, the company is given a
very important means of raising money for the purposes of its
undertaking ; and the holders of the bonds are secured by the
mortgage upon the property and franchises of the company ;
(i) and are put in a better position than the shareholders
themselves, inasmuch as the holders of the bonds take pre-
cedence of all other creditors, and the shareholders are only
entitled to be paid after the creditors' claims have been satisfied.
Powers of 19, The powers of the holders of the bonds in the case of
bondholders. ...... . . ,-
non-payment of principal or interest are, that at the first annual
general meeting of the company, after default has occurred in
paying the principal or interest on any of the bonds, and at alt
subsequent meetings, the holders have the right to vote, and to
be elected as directors, in the same manner as shareholders
would, (2) that is to say, that they have the same number of
votes as shareholders, holding an equivalent amount of stock.
But these rights, be it observed, cannot be exercised unless it is
so provided by the mortgage deed, nor unless the bonds or
debentures have been registered in the name of the holder, in
the same manner as the shares of the company are registered,
at least ten days previous to the meeting at which the holder
claims to excise his right to vote ; (3) but the company 'are
bound, on demand, to register such bonds, and the bonds are
thereafter transferable in the same manner as the shares of the
railway company have not been substantially fulfilled. See The Corporation
of the City of Quebec v. The Quebec Central Ry. Co., 10 S. C. R. 563.
Bickford v. Grand Junction Ry. Co., i S. C. R. 696; Cassils Dig. 423.
infra, p. 97.
(1) A holder of railway bonds has the right by conservatory process
to prevent rolling stock which is hypothecated for the payment of the
bonds from being removed from the road. Wyatt v. Sene'cal, 4 Q. L. R.
76, also i L. N. 98.
In an action between a preferential bondholder and the company, the
Court cannot adjudicate with respect to priority of hypothec or lien of such
bondholder, nor in such action can the Court declare that the road rolling
stock, etc., are not susceptible of sale by the sheriff. Morrison v. G. T. Ry.
Co , 5 L. C. J. 313, S. C. 1861.
(2) Sec. 96. See The M. P. & B. Ry. Co. & The Hochelaga Bank, 27
L. C. J. 164, Q. B. 1883.
(3) Sec. 96, ss. 2.
FINANCING OF RAILWAY COMPANIES. 97
capital stock, (i) The bonds so issued by the directors may
be payable either to order or to bearer. (2)
20. They are generally made payable to bearer, and in such Transfer,
case are transferable by delivery, that is to say, transferable from
hand to hand without endorsement, unless they are registered as
just mentioned ; but once registered they are only transferable
by written transfers upon the books of the company in the same
manner as shares in the capital stock. (3)
21. Having stated the clauses of the Act with regard to the Jurisprudence,
powers of the company as to mortaging property, the issue of
bonds and similar securities, and the rights of the holders under
the Act, it may be convenient to consider some of the more
important judicial decisions bearing upon questions which have
arisen under the Act or similar provisions of other Acts.
22. An important case involving the power to mortgage, Power to
borrow an
mortgage.
arising under similar provisions of a former Railway Act, is that of c
Bickford v. Grand Junction Ry. Co. (4) The Grand Junction
Ry. Co. having statutory authority to borrow money, issue bonds
or other securities, to hypothecate the lands, tolls, and other pro-
perty of the company, and to sell or dispose of property re-
quired for the purposes of the company, entered into an agree-
ment with a contractor for building its road, by which the con-
tractor was to receive in payment certain municipal and other
securities, and the balance in the first mortgage bonds of the
company, upon the completion of the work. After building a
portion of the road, the contractor was unable to procure iron
for it, and the railway company, to enable him to obtain it, made
a mortgage, to one Buchanan, as trustee, of a portion of its road,
to secure the payment to the Bank of Montreal of the notes of
the contractor given for the price of the iron ; providing however,
that, in case of his failure to pay the notes, the mortgagee's sole
recourse should be against the property and not against the com-
pany. The vendors of the iron retained a lien upon it until it
should be laid upon the track. The contractor, after laying a
(i) Sec. 96, ss. 2. (2) Sec. 97.
(3) Sec. 97. (4) i S. C. R. 696.
7
98 THE RAILWAY LAW OF CANADA.
small part of the iron, became insolvent, and a large quantity
of the iron which had been delivered to him, but which had not
been laid upon the road, was sold by vendors at a large loss upon
the price at which the iron was purchased. The holders of the
mortgage on the railway then sought to enforce it for the value
of the iron actually laid upon the track, as well as for the loss
resulting from the re-sale of the iron. The railway company,
while not objecting to paying the price of the iron actually placed
upon the road, objected to paying the loss arising from the re-
sale, and contended that the mortgage was ultra -vires.
The Court of Appeal of Ontario started with the principle,
that without express legislative authority a mortgage of the cor-
porate property of a railway company could not be made; and
from this deduced the conclusion, that a mortgage, to be effectual,
must be within the terms of the authority given to create it. The
only authority this company had to mortgage its property was
given to secure the repayment of money borrowed for the pur-
pose of completing or maintaining the road ; whereas the debt
secured by the mortgage in this case was that of the contractor.
The mortgage was a pledge, by way of collateral security, that
the contractor should pay his own debt ; and the Court regarded
such a mortgage as beyond the power of the company, and inva-
lid, even if assented to or ratified by every stockholder. The
court also declared that, inasmuch as the authority given tci the
company was to mortgage its property, tolls and revenues, the
company could mortgage only the whole undertaking, and that a
mortgage of a portion of the line which the company was consti-
tuted to build was void, (i)
On appeal from the judgment of the Court of Appeals of Ont-
ario, the Supreme Court of Canada reversed this judgment and
held the mortgage valid. (2) The court laid down the propo-
sition that every corporation has the power to mortgage its pro-
perty for the purposes of the undertaking, unless this power be
limited by its charter or by statute ; although such limitation
may be deduced either from the object of the corporation being
limited to certain specific things, or from its property being subject
(1) 23 Grant's Chy. 302.
(2) I S. C. R. 696.
FINANCING OF RAILWAY COMPANIES. 99
to charges or trusts in favor of the public, with which a mortgage
would be inconsistent, (i)
The Statutes, however, confer express power to mortgage
the company's property for the payment of loans and debentures.
This statutory power to mortgage for a special purpose does not
restrict the general power of the company incidental to its exist-
ence to deal with its property by way of mortgage.
The mortgage, moreover, was within the scope of the powers
conferred upon the company to construct and work a railway
and to alienate and to dispose of lands for that purpose.
" The rails, for the price of which the mortgage was given,
" were indispensable to enable the company to carry out its
li undertaking. The company might have purchased them directly
" from the vendors. It was found more convenient, however,
'; to make a contract for the construction of the railway, by
41 which the contractor undertook to furnish the iron.
" Having power to give a mortgage to secure the price of rails,
" it can make no difference that they have given the mortgage as
" sureties for the contractor, and not as direct purchasers.
" Indirectly, it is given to secure the price of the rails.
" Had the mortgage been given for any object foreign to, or
inconsistent with, the purposes of the incorporation, then, no
doubt, it would have been ttltra -vires of the company. A
familiar instance of a railway company exceeding the limits
of its undertaking is afforded by a well-known case, in which such
a corporation added to its legitimate business that of a line of
steamships. Had this mortgage been given in aid or furtherance
of any similarly unauthorized enterprise, it would, of course, have
been ultra vires; but it is manifest that such was not the case
here, and that the sole object of the corporation was to attain the
end for which it had been created." (2)
Furthermore, the mortgage cannot be considered wholly void
when it creates a good charge upon any part of the company's
property, although it includes franchises and property which may
be so impressed with a trust in favor of the public that it is beyond
the power of the company to deal with them.
(1) Per Strong, J., at p. 730.
(2) Strong, J., at pp. 732-33.
TOO THE RAILWAY LAW OF CANADA.
Conceding, say the court, that the mortgage, if confined to the
franchise and to the railway and its adjuncts, would have been
void as being a charge on subjects extra commercium, it does
not follow that it may not be a good charge on the other lands
over which the company had power of free disposition, and for
that reason alone the order of the court below should be re-
versed, (i)
Power to give 23. The case of Bickford v. Grand Junction Ry. Co. was
lien on rail- recently followed in the case of Charlebois v. The Great North
nate lands. West Central Ry. Co., (2) which decided that it was infra vires of
a railway company to give a contractor a lien and first charge on
the part of the railway which he constructed, and that a railway
company has a general power to give securities for purposes
within the scope of the power conferred upon the company to
construct and operate the railway, unless this power is expressly
negatived in the Act of incorporation, and express power to
borrow, and give specified securities, will not exclude the general
power. (3)
Mr. Jones, in his work on railroad securities, disapproves of
the judgment in Bickford v. Grand Junction Ry. Co., in that,
conceding its correctness as applied to the case in hand, it con-
tains some propositions and reasoning regarding the power of
railway companies to alienate lands, not in accordance with the
best English and American authorities. (4)
But the present Dominion Railway Act (as amended by 53
Vic., cap. 28, and 55-56 Vic., cap. 27) contains provisions au-
thorizing a company to alienate, sell, and dispose of the lands
obtained by them from the Crown, or given to them by any
corporation or other party, for the construction, mainte-
nance, accommodation and use of the railway. It is true that
by section 90, par. (c) of that Act, the power to alienate and
dispose of lands purchased is lestricted to so much thereof
as is not necessary for the purposes of the road. But by par.
(5) added by the amending Acts, the power to sell or otherwise
dispose of lands obtained either from the Crown, corporations,
or persons, seems unlimited.
(i) I S. C. R. at p. 737. (2) 9 Man. I.
(3) And see Win. & H. B.Co. v. Mann, 7 Man. Si.
(4) § 10.
FINANCING OF RAILWAY COMPANIES. 101
However, the above decision goes the length of holding that
the express power to borrow and to give the securities specified
by the Statute will not negative or exclude the general power
the company has to dispose of lands and give other securities
for purposes within the scope of the powers conferred upon the
company to construct and operate the railway, (i)
24:. The right to be a corporation is not of course susceptible power to
of alienation by mortgage or otherwise, and this is recognized in alienate fran
The Railway Act, under sections 278-280. The franchise men-
tioned in article 95 means such of the company's franchises or
privileges as will enable the grantee to have the same use and
beneficial enjoyment of the property which the company itself
had. (2)
The question debated by Strong, J., in Bickford v. Grand
Junction Ry. Co. (3) as an open one, viz., as to whether a rail-
way can mortgage or otherwise charge its franchise and under-
taking, is now set at rest by section 95 of The Railway Act.
Where the railroad passes into hands of persons not having
the necessary corporate powers to operate it, special leave must
be obtained by act of Parliament to do so. (4)
25. It has been recently held in Ontario, (5) that, so long as Sale of
a railway is a going concern, bondholders have no right, where railway,
interest on their bonds is in arrears, to seize, or take, or sell, Or
foreclose any part of the property of the company. Their
remedy is by the appointment of a receiver.
The reasoning in this case was based upon, among others, the
leading English case of Gardner v. London, Chatham & Dover
Ry. Co., (6) which appears to rest upon the consideration that,
inasmuch as Parliament has made no provision for the transfer
of its statutory powers, privileges, duties and obligations from a
railway corporation to any other person, whether individual or
(1) And see Charlebois v. G.N. W. C. Ry. Co., 9 Man., at pp. 12, 13.
(2) Per Strong, J., in Bickford v. Grand Junction Ry. Co., I S. C. R.
737-738-
(3) Supra, p. 99-100.
(4) Sec 278 et seq ; ubi supra, p. 4.
(5) Phlepsz/. The St. Catharines & Niagara Central R.R. Co., 190. R.
501 ; Gait v. Erie, etc., Ry. Co , 14 Grant Chy. 499 .
(6) L. R., 2Ch. 201.
102 THE RAILWAY LAW OF CANADA.
corporate, it would be contrary to the policy of the Legislature,
as disclosed in the general railway statutes, and in the special
acts incorporating railway companies, to permit creditors of any
class to issue execution which would have the effect of destroy-
ing the undertaking or of preventing its completion.
However, it would appear by sections 278-280 of our Act, that
Parliament distinctly contemplated the sale of a railway at the
suit of a bondholder or under any other lawful proceeding, and
its subsequent operation by the purchaser under licence from the
Minister of Railways, or under corporate powers granted by Par-
liament; and also the closing of the railway, or its being otherwise
dealt with, as the Railway Committee might determine on the
purchaser's failure to obtain such powers.
It is difficult to see, in view of these provisions of the Act, how
the reasoning upon which the Phelps case was arrived at could
be sustained. And in Redfield v. Corporation of Wickham (i)
the Privy Council decided that under the Canadian railway
statutes a railway may be taken in execution and sold, like
other immoveables, in ordinary course of law. This decision
was apparently overlooked in the Phelps case, as pointed out
by Bain, J., in Charlebois v. G. N. W. C. Ry. Co. (2)
In Quebec the right to seize and*sell a railway by ordinary
process of law has always been recognized, (3) and is endorsed
by the decision o the Privy Council in Redfield ' v. Corporation
of Wickham ; (4) though this case seems to have turned some-
what upon the special provisions of the railway company's
charter.
The railway may be seized and sold by ordinary process of
law, even though subsidized by the Provincial Government. (5)
But held by the Court of Appeals of Quebec, that a railway
may not be sold in part, and is an indivisible thing, and can
(1) 33L-J-, P.C. 170.
(2) 9 Man. ir.
(3) Morrison v. G. T. R. Co., 5 L. C. J. 313; Corporation of Co. of
Drummond v. South Eastern Ry. Co., 24 L.C. J. 276; Hochelaga Bk. v.
M. P. B. Ry. Co., 4 L. N. 333 ; Ontario Car Co. v. Que. Central Ry. Co.,
lo L. N. 12.
(4) 33 LJ-. P.C. 170.
(5) WasonMfg.Co.t/.Levis&KennebecRy.Co., 7Q.L.R.33O, S.C.R.
1880 reversing.
FINANCING OF RAILWAY COMPANIES. 103
only be sold as a whole, (i) This decision would not apply
in the case of the sale of a part of a railway under the Domin-
ion Act, which distinctly contemplates the sale of any section of
a railway. (2)
26. Bonds issued under the present Railway Act are a first Lords, a first
preferential claim and charge upon the company and its fran- charge on the
, , , undertaking,
chise, undertaking, tolls and income, rents and revenues, and real etc
and personal property at any time acquired. (3) This secures
everything to the mortgagees but the company's right to be a com-
pany ; and upon non-fulfillment, by the company, of the terms
of the deed, the mortgagees can come in under the deed of trust
and, through the trustees appointed thereunder, take possession
of and operate the road for their own benefit. (4) For the
deeds of trust now in general vogue allow the trustees to
take possession of the road, upon a certain default on the part
of the company, and operate it, and after a further delay, if
necessary, to acquire the absolute right to the railway.
27. While the word " undertaking " used in the section taken The under-
alone would not pri ma facie include the lands of the company, taking.
it does not necessarily exclude them. (5) " The word is ambigu-
ous, and may be construed as meaning the speculation generally,
or possibly it maybe taken to include the land itself." (6) This
point is further illustrated by the case of the New Brunswick
and Canada Atlantic Ry . Cy. (7) By various acts of the
Imperial and local governments, this company was entitled to
grants of a large amount of land not connected with or neces-
sary for the completion of the railway.
This land the company had taken as a land company, with
the object of making it a source of profit by sale and otherwise.
It issued debentures, mortgaging to each holder the undertaking,
and all monies to arise from the sale of lands and all future calls,
(1) Stephen v. Banque d'Hochelaga, M. L. R., 2 Q. B. 491. (Q. B. 1886).
(2) Sec. 278 ; provided it be sold as an integer. (Kedfield v. Corporation
of Wickham, 33 L. J., P. C. 170).
(3) Sec. 95.
(4) Sec. 95, ss. 2.
(5) Myatt v. St. Helen & R. G. Ry. Co., 2 Q. B. 364.
(6) Coleridge, J., in same case at p. 374.
(7) Wickham v. N.B. & C. A. Ry. Co., L. R., i P. C. 64.
104 THE RAILWAY LAW OF CANADA.
and all tolls, rolling stock, etc. ; provided, that nothing therein
contained should be held to limit the power of sale or appro-
priation by the company of any of its lands, nor constitute
a charge upon them. Certain judgment creditors of the com-
pany issued execution against the land of the company, where-
upon the debenture holders, in order to protect the lands of the
company and restrain a sale of the lands by the judgment cred-
itors, instituted a suit in the Supreme Court of New Brunswick,
and obtained an order appointing a receiver.
A motion for an injunction having been refused by one of the
judges, and, upon appeal, again refused by the Supreme Court
of Judicature of the Province, an appeal was taken to the Privy
Council, which affirmed the decree of the Provincial Court.
Lord Chelmsford, delivering the judgment of their Lordships,
said (i) that the proviso was not inconsistent with the sweeping
and general terms of the debentures, but merely explanatory of
them. " It seems clear to their Lordships that the lands not
being in terms granted by the mortgage debentures, the proviso
makes the intention of the parties perfectly clear, that no general
expression used in the grant was intended to comprehend them,
and therefore that the debenture holders are not entitled to in-
terfere with the sale of the lands under the execution issued by
the judgment creditors. But the debenture holders insist, that
if they cannot stop the sale of the lands, they are entitled under
the terms of the debentures to all the money arising from such a
sale. It is quite clear, however, that the sales contemplated by
the grant are those which are to be made by the company in the
course of their regular operations. The judgment creditors take
what belonged to the company, but do not take under them, and
a sale by the sheriff under an execution i? a sale by law, and
not by the company.
'; It is clear upon the whole case, that the lands of the company
did not pass to the mortgagees under the debenture, nor are they
entitled to the proceeds of the forced sales." (2)
A mortgage of the undertaking and all the real and personal
estate has been held in England to include all the personal estate
(1) At p. 79.
(2) At p. 80.
FINANCING OF RAILWAY COMPANIES. 105
then existing, but not personalty subsequently acquired, (i)
But the Railway Act provides that the bonds, etc., are to be a
charge upon all the real and personal property, at any time
acquired. (2)
28. The earnings of a railway, while it is allowed to remain Tolls and
in the possession of the company, are not subject to the lien of income-
the mortgage, although in terms the mortgage covers the tolls of
the road, if at the same time the mortgage implies that the com-
pany is to hold possession and receive the earnings of the road
until the mortgagee takes possession. (3) Thus, where a railway
company executed to trustees a mortgage of its road, property and
franchises, "together with the tolls, rents and profits to be had,
gained or levied therefrom " ; and the mortgage provided that
after default continued for a certain period, the trustees might
enter and take possession ; but that until such time the company
should have the sole right of possession, use and management
of the mortgaged premises ; the mortgagees subsequently com-
menced a suit to foreclose the mortgage, but did not take pos-
session of the property or ask for the appointment of a receiver in
the suit. Pending the suit, a creditor of the company obtained
judgment against it, and attached in the hands of an agent of the
company monies belonging to it received from the sale of
passenger tickets and for freight charges. A receiver was
subsequently appointed on behalf of the mortgagees, who also
claimed the funds attached in the hands of the agent and received
.by him before the appointment of the receiver. The Supreme
Court of the United States adjudged that the mortgagees had no
right to the earnings of the road until they took possession
through the receiver. (4)
This point was referred to by Strong, J., in Wallbridge v.
Far-well. (5) The learned Judge said : " In assenting to the
judgment of the court dismissing these appeals, I do not by any
means intend to preclude myself in future, should the question
be raised in proper form and in an appropriate case from consid-
(1) New Clydock Sheet & Bar Iron Co. in re, L. R., 6 Eq. 514.
(2) Sec. 95. (3) Jones, R. R. Securities, § 114.
(4) Oilman v. Ills. & Miss Telegraph Co., 91 U. S. 603 ; see also
American Badge Co. v. Heidelbach, 94 U. S. 798; Galveston R. R. Co. t>.
•Cowdrey, II Wall. 459.
(5) 18 S. C. R. I.
io6 THE RAILWAY LAW OF CANADA.
ering whether the principle, which is now universally recognized
in the United States as to the applicability of current earnings to
current expenses, incurred either whilst or before railway property
comes under the control of the court, by being placed, at the
instance of mortgagees, in the hands of a receiver, in preference
to mortgage creditors whose security has priority of date over the
obligation thus incurred for working expenses, should be adopted
by our courts. This doctrine is now finally settled in the
United States, where railway mortgages exactly resemble those in
use with us, and which do not at all resemble the securities of
debenture holders tinder the English system of securities for
borrowed capital ; and the practice referred to is so pregnant with
justice, good faith and equity that there may be found strong
reasons for applying it here when the question arises." (i)
While the company remains in possession of the road, the right
to apply enough of the income to operate the road cannot be
questioned. The amount to be so applied is within the discretion
of the company. The same discretion extends to the surplus.
It is for the company to decide what shall be done with it. (2)
After acquired 29. Section 95 of the Act includes, as subject to the pre-
ferential claim of the bondholders, property at any time
acquired, which of course implies that property acquired by the
railway after the issue of bonds is subject thereto. Generally,
such mortgage can only attach to such property in the condition
in which it comes into the mortgagor's hands.
Thus it has been held that a mechanic's lien for work done
and materials furnished in building for a railroad company
docks, wharves and piers, upon a branch road acquired after the
making of the mortgage, takes precedence of the mortgage. (3)
Vendor^ lien. 3O. But this rule does not apply to an unpaid vendor's lien
where the material supplied by the vendor becomes amalga-
mated with and a part of the whole railway, as in the case of
rails, and therefore subject to the mortgage. And this is the
rule both under the Quebec law and the English law. (4)
(1) At p. 4.
(2) Oilman «. Ills. & Miss. Telegraph Co., 91 U. S. 603.
(3) Williamson r. N. J. Southern Ry. Co,, 28 N. J. Eq. 277-298, 29
lb. 311 ; U. S. v. New Orleans R.R. Co., 12 Wall. 362-364.
(4)Wallbridge v. Farwell, 18 S. C. R. 7; and see Galveston R.R. Co.
V. Cowdrey, II Wall. 459.
FINANCING OF RAILWAY COMPANIES. 107
31. But in the case of rolling stock it becomes a question Rolling stock
whether such stock forms a part of the realty or not. Under — Part °f
realty ?
the law of Quebec it does, becoming irnmoveable by destination.
(i) And it has been held by the Supreme Court that the unpaid
vendor of cars supplied and delivered to the company loses
his privilege for their price, because they had become immoveable
by destination, and the railway to which they were attached was
mortgaged and had passed into the hands of third parties ; and
that even considered as moveables the rolling stock became
affected and charged by virtue of the Statute and the mortgage,
as security to the bondholders with right of priority over all
other creditors, including the unpaid vendors. (2)
The Supreme Court of the United States, however, has decided
that such cars, etc., are loose property, susceptible of separate
ownership and separate liens; and that such liens, if binding on
the railway company itself, are unaffected by a prior general
mortgage given by the company, and paramount thereto. (3)
But in this country the decision of our Supreme Court would
seem to have decided the question under our statutory law, at
least in the Province of Quebec. The bonds in that case were
issued, and the bondholders' rights declared, under a special
Act of Parliament, which declared such bonds to be a first lien,
privilege and mortgage upon the railway, its franchises and all
its property, tolls and income, profits and improvements and
renewals thereof. This statute was regarded by Mr. Justice
Taschereau, who rendered the principal judgment, as setting
at rest all possible controversy as to the relative rank of the
unpaid vendor's claim and that of the trustees by enacting that
the trustees should be first, (4) It was argued for appellant
that the Statute merely says that the conveyance shall be " a
first charge," and that this does not mean the first charge. But
the learned judge thought there was no ground whatever for
that distinction. The decision would a fortiori apply to any
railway under the present Act where the language used is
that " the bonds, etc., shall be taken and considered to be the
(1) C.C. 379.
(2) Ontario Car Co. r. Farwell, 18 S. C. R. I.
(3) U. S. v. New Orleans R.R. Co., 12 Wall. 362.
(4) 18 S. C. R. at p. 15.
io8 THE RAILWAY LAW OF CANADA.
first preferential claim and charge upon the company and the
franchise, etc., and real and personal property thereof at any
time acquired." In the Farwell case, however, the trust inden-
ture authorized the payment by the trustees " of all legal claims
arising from the operation of the railway, including damages
caused by accidents and all other charges ; " and it was the
opinion of Mr. Justice Gwynne that the appellants might be
entitled to an equitable decree, framed with due regard to the
other necessary appropriations of the income in accordance with
the provision of such trust indenture, (i)
The most intelligent view would seem to regard rolling stock
as being of the nature of immoveables.
Jn the Province of Quebec the question is free from doubt,
rolling stock there being held to be immoveable by destination.
(2)
In the United States the question is much debated. But in
favor of the above contention it may be argued that the right to
buy and own rolling stock is a franchise, and can only be exer-
cised as an accessory to the operation of the railway. Any
buying or selling of cars, engines, and the like, by the company,
for the mere purpose of speculation, would be unauthorized and
illegal. Hence the intention of the company to place them
upon the railway for a permanency, the use to which they are
destined, the connection between the railway and the cars, and
the essential relation between them for the purposes of the
undertaking, all combine to point out the true position of roll-
ing stock as part of the realty. (3)
Mr. Jones, in his work on railway securities, says that while
there are many and strong arguments for holding that rolling
stock is part of the realty — and this view seems to have the sup-
port of the United States courts — the weight of authority in the
State courts seems to be against that position. He, however,
favors the view that rolling stock is part of the realty. (4)
(1) 18 S. C- R. at p. 34.
(2) C. C. 379. Grand Trunk Railway v. Eastern Townships Bank, 10
L. C. J. n ; Wallbridge v. Farwell, 18 S. C. R. I.
(3) And see Minnesota Co. v. St. Paul Co., 2 Wall. 609, note p. 648,
on rolling stock as a fixture, being an extract from brief of Mr. Carpenter.
(4) Jones, Railway Securities, § 154.
FINANCING OF RAILWAY COMPANIES. 109
On the other hand, Mr. Ewell, in his work on fixtures, takes the
opposite view, (i)
Many authorities, without holding that engines and cars are
fixtures, regard them as so indispensable to the operation of a
railway, that they make a distinction between the rolling stock
and the other kinds of personal property, in respect to the rule
that property not in esse cannot be conveyed. The rolling stock
of a railroad is regarded as so appurtenant to the road, that when
the company makes a mortgage of its road and franchise, it has
a present existing interest in the rolling stock to be acquired for
its use sufficient to uphold a grant of it as incident to the road.
(')
The question might be considered from another point of view,
viz., not as to whether rolling stock is theoretically part of the
realty, but whether, for the purposes of the particular transaction,
it should be so regarded or not. Thus, while it might be consi-
dered to be a part of the realty, as between the mortgagees and
creditors claiming liens upon it as personal property, it is not
necessary that it should be considered realty for the purpose of
taxation, or that it should be considered realty in any other re-
lation than that existing between the railway company and those
claiming under it on the one hand, and the mortgagees on the
other.
3£. A railway company, in order to secure a loan, mortgaged Rails and
to a municipal corporation their lands, roads, depots, wharves, Olhersupp*
stations, tolls, revenues and all other property " now or during
the existence of the said mortgage to be acquired." A quantity
of iron rails was purchased for the railway, the vendors stipu-
lating at the time of the sale that the rails should be laid down
on that particular road.
The iron was shipped by the vendees, who endorsed the bills of
lading, to the municipality, who paid the shipping charges, insur-
ance, and freight duties, etc., out of monies which formed part
of the advances secured by the mortgage. The iron was seized,
(1) Ewell, Fixtures, p. 39.
(2) Jones, § 150.
Under the Code Napoleon, all objects placed by a proprietor on his pro-
perty for the service and working of the property are immoveable by destina-
tion. C. N. 524, cp. C. C. 379.
no THE RAILWAY LAW OP CANADA.
under an execution against the railway, while in possession of
the municipality, it being ready to be placed on the road. It
was held that as the mortgage covered personal as well as real
property, the words " other property " were not restrained to
real property, and that under the endorsement of the bill of
lading to the municipality, who obtained possession of the iron
by such endorsement, together with the stipulation of the ven-
dors and the assent thereto of the vendees, the municipality
acquired the possession and the property in the iron, and it
became a part of the property mortgaged, (i)
On the other hand, supplies intended for the maintenance
and operation of the railway, but not incorporated with it, such
as sleepers or ties, fastenings, fuel, etc., have been held in the
Province of Quebec not to be immoveable by destination. (2)
Formalities m 33 Whatever may be the irregularities in the issue of bonds,
making and ... , -
issuing bonds elc-> tne corporation and its members are estopped from pleading
— waiver. the want of any formality prescribed by the Act by previous
waiver of such formality. (3)
Thus where bonds issued in disregard of a prescribed
formality were treated by the company as good, a stockholder
who had attended n c ings where the bonds were treated as good,
upon subsequently filing a bil 1 to restrain the company from re-
deeming the bonds, was held to be estopped from contesting
their legality, (4)
L-irectory re- 34. The general rule, that when statutory requirements are
quirements as IT j • ^i • • 1-1
to formalities ™ere?y directory and not imperative, the omission to comply with
them would not render void the particular acl done under the
authority of the Statute, would apply to any merely directory
formalities required by the Act. So it would seem that where
a Statute required all evidences of de bt issued by a company to
be signed by the president and treasurer, this would be looked
upon as directory merely, and the signature of the secretary
instead of the treasurer would be sufficient. (5)
(1) Corp. of Lanark & Renfrew c. Cameron, 9 U. C. C. P. 109.
(2) \Vyatt v Levis & Kennebec K'y. Co., 6 Q. L. R. 213 (S. C. R. 1880).
(3) See Jones v. Municipality of the County of Albert, 20 N. B. 78 ; 21
N. B. 200.
(4) Zabriskee ». Cleveland, Columbus & Ohio Ry., 23 How. 381-398.
(5) City Bank v. Cheney, 15 U. C. Q. B. 400; and see In re Farlinger &
the Village of Morrisburg, 16 O. R. 722 ; Lewis v. Brady, 17 O. R. 377;
-Grand Trunk Ry. Co. v. Corporation of Levis, 10 R. L. 612 (Q.B. Que. 1879).
FINANCING OF RAILWAY COMPANIES. in
Where a mining company Was empowered to borrow money
And mortgage its property upon a vote of the stockholders and
directors, it was held that the company was liable upon a loan
obtained by the directors without such vote, for the lender was
justified in assuming that there had been a meeting and vote of
the shareholders in the manner directed; (i) and likewise with
the omissions of the preliminaries of corporate meetings, such as
the publication of notices, or with regulations as to the manner
of conducting such meetings, or the appointment and election
of directors. (2) But this is not the case where the irregularity
is one which appears on the face of the instrument itself ; — the
purchaser is bound to take notice of it. (3)
A distinction is also to be observed between transactions
which are within the general scope of a corporation's powers
without the aid of statutory authority, and those which depend
altogether upon such authority for their validity. Requirements
in the case of the former might be regarded as directory merely,
which in the case of the latter might be regarded as conditions
precedent to the exercise of the authority, or imperative require-
ments.
A defect in the mortgage does not invalidate the mortgage
debt, but only the security for it ; and a want of power to make
the mortgage does not affect the obligations of the bonds secured.
(4)
35. The fact that a certain municipal debenture had been stolen bonds,
stolen previously to its being issued has been held to be no bar to
the claim of a bona fide holder for valuable consideration with-
out notice. (5)
(1) Tyson's Reef Co. in re, 3 W. W. & A. B. Cases at law 162 ; Brit.
Bank v/Turquand, 6 FA. & Bl. 327.
(2) Township of Brock v. Toronto & Nipissing Ry., 17 Grant Chy. 425;
Fountaine v- Carmarthen Ry. Co., L. R., 5 Eq. 316; Worcester Corn Ex-
change in re, 3 D. G.M.&G. 180; Anderson v. Duke, etc., Gold Mine
Co., I Australian Jurist 161.
(3) Athenaeum Life Assur. Soc. in re, 4 K. &J. 549; Geddes v. The
Toronto Street Ry. Co., 14 U. C. C. P. 513; The Commercial Bank of
Canada v. The Great North Western Ry. Co., 3 Moore P. C. N. S. 313-314.
(4) Phildelphia & Sunbury R. R. Co. v. Lewis, 33 Pa. St. 33.
(5) The Trust & Loan Co. of Upper Canada v. The City of Hamilton,
7 TJ. C. C. P. 98; and see Jones v- Municipality of Albert, 21 N. B. 200.
112
THE RAILWAY LAW OF CANADA.
Pleading
want of
formality.
Payee not
mentioned.
Debentures
negotiable
instruments.
36. A plea that such debenture was not issued " under the
formalities required by law," because the by-law under which
it was issued did not settle a special rate, and was therefore
void, was held bad, for not averring distinctly that such deben-
ture was issued in pursuance of a by-law, and for not pointing
out wherein it was defective, (i)
37. Debentures are not void because they are not made payable
to any particular named individual or company ; as the legal effect
of such an instrument must be construed to be an undertaking
to pay the monies therein mentioned to the person to whom it
was delivered, and who, by the effect of such delivery, became
the payee in fact. (2)
38. A debenture as commonly understood, and according to
the general usage of this country, is a negotiable instrument in
the nature of a promissory note transferable by endorsement or
by mere delivery, (3) and therefore cannot bear a condition on
the face of it, making its validity depend upon obligations to be
performed in the future, and the party having a right to the deli-
very of debentures to him is entitled to have them free from such
conditions. (4) The fact that debentures are under seal does
not detract from their negotiable character ; and though a statute
makes them a charge on all the property of the company, with
aright of foreclosure and sale, this is something superinduced
upon the security by virtue of the statute. (5)
The issuing of debentures in blank to be subsequently filled
in upon delivery by the managing director, who is also secre-
tary and treasurer, does not invalidate the debentures. The
strict rules of the common law relating to deeds are not applica-
ble to such debentures, but rather the rules of the law merchant
relating to negotiable securities. (6) But even if this were not
so, the fact that the name of the payee is not filled in until deli-
(1) The Trust & Loan Co. of Upper Canada v. The City of Hamilton,
7 U. C. C. P. 98.
(2) Gecldes v- The Toronto Street Ry. Co., 14 U. C. C. P. 513.
(3) Eastern Townships Bank v. Municipality of Compton, yR. L. 446.
(4) MacFarlane v. Corp. St. Cesaire, M. L. R., 2 Q. B. 160, confirmed in
Supreme Court, 14 S. C. R. 738.
(5) Bank ol Toronto v. Coburg, etc., Ry. Co., 7 O. R. i .
(6) Ibid.
FINANCING OF RAILWAY COMPANIES. 113
very does not make the debentures void. It would come within
that class of cases where deeds have been held good, notwith-
standing an alteration or subsequent addition, because, at the
time of execution, there was something which could not be as-
certained, and was therefore to be filled in afterwards. In this
case, however, there was no execution, which imports delivery
prior to the time when the name was filled in. (i)
39. Coupons are simply in effect promissory notes payable Coupons and
on the very day of their maturity without grace. (2) However i"terest
. . . . thereon,
their foims may vary, the interest and legal effect are the same.
(3) Interest runs on them from the dates on which they re-
spectively fall due, without the necessity of putting the debtor in
default j (4) and this is the law in Quebec. (5)
4:0. It is not necessary that the coupons should be presented place of pre-
for payment at the place named, in order to establish a default
on the part of the company, if it can be shown that the company
was never ready to pay them, there or elsewhere. (6)
As soon as the day on which a coupon becomes due passes
without payment, it is regarded as dishonored like other com-
mercial paper remaining unpaid at maturity ; and if thereafter
transferred, the transferee takes it subject to all equities with
which it was affected in the hands of the transferor. (7) The
simple fact that an instalment of interest is overdue and unpaid
is not sufficient to affect the position of one taking the bonds and
subsequent coupons, before their maturity for value, as a bona
fide purchaser. (8) But the presence of overdue and unpaid
coupons on bonds may be a circumstance which, when coupled
with other significant indications of invalidity, will prove suffi-
cient to put a purchaser on inquiry. (9)
(1) Bank of Toronto v. Coburg, etc., Ry. Co., 7 O. R. I .
(2) Daniel, Negot. Inst. 1490.
(3) Ibid , 1493.
(4) Daniels h:egot. Inst., § 1505.
(5) Desrosiers v. Montreal, Portland & Boston Ry. Co., 28 L. C. J. I.
(6) Re Thompson and the Victoria Ry. Co., 9 P. R. (Ont.) 119.
(7) Daniels, § 1505.
(8) Ry. Co. v. Sprague, 103 U. S. 762.
(9) Parsons v. Jackson, 99 U. S. 434. Explained in Ry. Co. v. Sprague,
103 U. S. 762.
8
ii4 1 HE RAILWAY LAW OF CANADA.
Suit upon 41. On motion of the owner of bonds with coupons attached,
the Court will order such of the coupons as are not in litigation
to be detached by the clerk of the Court and delivered over to
the party moving, (i)
Transfer and 4.3. A trustee held certain debentures of a railway company,
° on trust> to secure certain creditors of the company for advances
made by them, which debentures were to bs handed over to the
creditors for sale, upon default in payment of the advances.
The company made default, and the debentures were delivered
over to the creditors. Held, that the creditors were entitled un-
der a statute, (2) the relevant section of which was substantially
the same as sec. 96 of The Railway Act, to be registered as hold-
ers of the debentures, to enable them to qualify and vote for
directors. (3)
Where an Act provided that the secretary should register the
bonds, it was held that a demand upon the assistant secretary
was sufficient, where it could be shown that he performed all the
duties of the secretary's office. (4)
Under the provisions of sections 96 and 97 requiring registra-
tion of bonds as a condition precedent to the holder's right to
vote thereon, questions may arise as to what title should suffice
to entitle the holder of such bonds to registration. Thus, in one
case, under a similar act, the secretary refused to register unless
the intermediate transfers were produced and registered at the
same time. But it was held that he was bound to do so with-
out the production or registration of the previous transfers. (5)
In another case a bank in Ontario received from bankers in
London a number of bonds, represented by the London bankers
as belonging to different persons named, and tendered them for
registration at the railway office, in order that these persons
might vote thereon. The secretary of the railway company re-
gistered such of the bonds as stood in the names of the original
holders, but refused to register the others unless written transfers
(1) Montreal, Portland & Boston Ry. Co. v. La Banque d'Hochela^a,
27 L. C. J. 164 (Q. B. Que., 1883).
(2) 34 Vic., cap. 43 (Ont.), sec. 33.
(3) Jn re Thompson & the Victoria Ry. Co , 8 Ont. Pract. 423.
(4) In re Thompson & the Victoria Ry. Co., 9 Ont. Pract. 119.
(5) In re Osier v. The Toronto, Grey & Bruce Ry. Co., 8 Ont. Pract. 506.
FINANCING OF RAILWAY COMPANIES. 115
from the original holders were produced. It was held: that the
company should register the bonds without such transfers; the
proof of title in the alleged owners was sufficient ; the issue of
scrip in London as representing the bonds formed no objec-
tion, (i)
These cases arose under a statute which provided that the
bonds " and any transfers thereof" should be registered before
voting. These words are not in the present Act, under which the
company are bound, on demand, to register such bonds, etc., and
thereafter any transfers thereof. (2)
If the transferees desire to acquire the right of voting on the
bonds, all the transfers should be evidenced in such a way as to
enable the company to register them in the same way as trans-
fers of shares. (3) The rights of the holder are always subject to
the provisions of the mortgage deed, (4) one of the most usual
being that no transfer, except upon the transfer book, shall be
valid unless the last preceding shall have been to bearer, which
shall restore transferability to the bond by delivery, but every
such bond shall continue subject to successive registrations and
•transfers to bearer at the option of each holder.
4:3. In the case of an application for a mandamus , to compel Default.
a railway company to register bonds, it was objected that it did
not appear the company had made default in payment of the in-
terest, the coupons not being shown to have been presented at
the place named for payment ; but it was held that the fact of
the company never having been ready to pay them, there or else-
where, was a sufficient answer to this objection. (5)
It is therefore not necessary as a condition precedent to
recovery, to aver and prove presentment at a particular place,
and a tender of the surrender of the bonds or a readiness to
surrender them. (6)
(1) In re Johnson & The Toronto, Grey & Bruce Ry. Co., 8 Ont. Pract.
.535-
(2) Sec. 96, and sup) a p. 42 et seq.
(3) In re Thompson & the Victoria Ry. Co., 9 P. R. (Ont.) 119.
(4) Sec. 96, ss. 3.
(5) Re Thompson & the Victoria Ry. Co., 9 P. R. (Ont.) 119.
<6) Fellowes v. Ottawa Gas Co., 19 C. P. 174.
n6 THE RAILWAY LAW OF CANADA.
" At the next 44. The words " at the next general meeting " used in a statute
Ing1"* " mere'y indicate the earliest period at which the bondholders may
vote, and the statute does not require a new registration, in order
to entitle the bondholder to vote at any subsequent meeting so
long as the interest remains unpaid, (i)
Where the exercise of any power given under the general or
special Act requires the assent thereto of a certain majority of
the shareholders, present at a meeting specially called for that
purpose, the word " shareholders " must be interpreted to include
all who are entitled to vote as shareholders, which includes bond-
holders. (2)
" Raising 45. The expression " raising money "used in section 93 sub-
sec. 2 must be given a liberal construction, so the pledging of
bonds with a contractor, as security for the price of the construc-
tion of the railroad, and in default of payment by the company,
the contractor to take the bonds in payment at so much on the
dollar, is to be construed as "raising money for the prosecution
of the undertaking." (3)
" Best terms 46. And the alternative given to the contractor of taking the
and condi- bonds in default of payment of the contract at fifty cents in the
tions. * J
dollar was considered, in the absence of evidence that more
favorable terms could have been made, as being a pledging and
allotting of the bonds upon the best terms and conditions obtain-
able within the meaning of the section. (4)
Distinction 47. A distinction has been drawn in a Manitoba case between
a Paging °f bonds and a mere deposit of them as collateral
Led d
deposit as security. Defendants purchased certain rails from the plaintiffs,
collateral giving in payment certain acceptances. It was agreed that " as
secunty. .
collateral security for the payment of said acceptances at matur-
ity, the defendants shall issue, and on production of the respective
bills of lading shall deposit with the plaintiffs or their bankers
(1) Hendrie v. Grand Trunk Ry., 2 O. R. 441. (Section 96 provides
for voting at all subsequent meetings.)
(2) Hendrie v. Grand Trunk Ry., 2 O. R. 441.
(3 Winnipeg & Hudson Bay Ry. Co. v. Mann, 7 Man. 81.
(4) Winnipeg & Hudson Bay Ry. Co. v. Mann, 7 Man. 81 ; and see
Regent's Canal Iron Works Co., L. R., 3 Ch. D. 43.
FINANCING OF RAILWAY COMPANIES. 117
bonds of the defendants to an amount double that of the said
acceptances." Power of sale in case of default was given.
After default and recovery of judgment upon the acceptances,
plaintiffs filed their bill on behalf of all holders of similar bonds
for a receiver and for sale of the railway. It was held : that
having regard to the surrounding circumstances, the plaintiffs
were not pledgees ; and that no obligation arose upon the bonds
until after their sale by the plaintiffs under their power, (i)
It may be well to quote the language used by the Court in de-
livering judgment : " It is not a question of the property in the
pieces of paper on which the instruments are written, which would
be originally in the railway company, and of which it might make
a legal pledge. In the hands of the railway company there was
no other property in respect of them. It could only be when
issued to another party, as obligor or promisor in respect thereof,
that the instruments could take effect as the obligations of the
railway company, or that there could be said to be any property
in the obligations to be pledged by a pledge of the papers con-
taining them."
" There is then no possibility of treating the transaction as one
of pledge of the obligations, for, unless the plaintiff company
became the obligees or promisees so as to possess the legal title to
the choses in action which the instrument purported to represent,
there was no obligation or choses in action to be pledged.
" It is quite competent, however, for the railway company, by
its officers, to sign and seal such instruments, and deposit them as
security with a party making advances to it, upon the terms that
such party should not be holder of them, that they should create
no obligation to him, but that his only right should be to sell them,
as the railway company might, and repay himself from the pro-
ceeds ; he making them, thus, the obligations of the company to
the purchasers."
" This, it appears to me, was the very transaction to which the
parties sought to bind themselves by the agreement set out in the
bill."
" At first sight the word ' issue ' seems to imply the complete
execution and delivery of the instruments to the plaintiff com-
(i) West Cumberland Iron Co. v. Winnipeg & H. B. Ry. Co., 6 Man. 388.
n8
THE RAILWAY LAW OF CANADA.
Extent of
borrowing
power — con-
dition prece-
dent.
pany, so as to make them the holders of the obligations thereby
represented ; but I think that the word may be considered to be
used in a somewhat less proper sense to signify the preparation,
signing and sealing of the documents, and the placing of them
absolutely out of the possession and control of the railway
company. The word is similarly use 1 by Britt, C. J., in Baven-
dalev. Bennet (i) in speaking of a blank acceptance handed
to a party to be filled up and negotiated. In fact, the ' issue '
there was less complete as it was without consideration, and
could be recalled at any time before use of the bill."
" The word used in the agreement to specify the transmission
to the plaintiff company is 'deposit.' The instruments were to
be ' deposited' with that company or its bankers. This is not
an apt word to denote a completion of the execution by delivery.
It appears rather to indicate the physical transfer of the pieces of
paper unaccompanied by the mental intention involved in the
word ' delivery ' when technically used. I agree with the view of
my brother Bain, that the word would be properly applied to a
transaction of pledge, rather than to one of mortgage, which is
what the plaintiff's bill really assumes this to have been. In
fact, it represents a bailment rather than a transfer of property or
creation of an obligation, though often of another kind than the
naked bailment known as depositum." (2)
48. A very important point as to the extent of a company's
borrowing power, and the effect to be given to statutory condi-
tions limiting such power, arose in the case of the Corporation
of Quebec v. Quebec Central Railway Co. (3) A railway com-
pany was authorized by a special Act to issue bonds or deben-
tures to the extent of ^,"300,000, in three successive issue0, each
of the second and third issues to depend upon the performance
by the company of certain conditions precedent. The first
^100,000 were issued at once as authorized.
The second ^100.000 weie issued when only 43^ miles of
the railway had been completed, it being one of the conditions
precedent that 45 miles should be completed and in running order,
as certified by the Government inspecting engineer.
(1) L.R.,3Q B. D. 525-
(2) I i VVtst Cumberland z>. Winnipeg & II. B. R. K. Co., 6 Man. 394,
per Killaro J.
(3) 10 S. C. K. 5*13.
FINANCING OF RAILWAY COMPANIES. 119
Before the issue of the third ^"100,000, an Act was passed
modifying the previous conditions as to that issue, and the pre-
amble declared that a total length of 45 miles had been com-
pleted, and a first and second issue each of ^100,000 of the com-
pany's debentures made.
This recital was erroneous. The question that arose was
whether the recital in the preamble of the last act rendered the
second issue of bonds mentioned therein good and valid and
binding on the company, although the conditions precedent re-
quired by the first Act had not been fulfilled. The majority of
the Court held that it did, Ritchie, C, J., and Strong, J., dissent-
ing- (0
49. Where a company had exceeded the borrowing powers Excessive
given by their original Act of incorporation, yet sufficient bor- borrowing
rowing powers had been given by subsequent Acts, and their by subsequent
exercise sanctioned by the shareholders, the borrowing was not Act-
ultra vires the authority of the managers and directors. (2)
5O- Where power is given to a company by its special Act Company not
to borrow money, and to issue bonds or debentures for neces- restricted to
sary repayment of any sums so borrowed on certain terms, the as security for
securities upon which the company has power to borrow are notmome,s bor"
rowed,
restricted to bonds or debentures only. Borrowing money by
advances from a bank, which advances were to be covered by
monthly bills on the company borrowing, and their available
traffic receipts would be within such a provision. (3)
Where an Act makes it lawful to promote the traffic of other
railways, the company can apply funds borrowed under their
powers for the maintaining of such railways. (4)
Trustees.
51. Notwithstanding the provision of sub. sec. 2 of section 95, failure to act.
that no action shall be taken to enforce pa} ment of the bonds,
(1) It should be noted that Fournier and Henry, J. J., held in this case
that the illegality of the second issue had not been legally proved, as the cer-
tificate of the engineer that only 43^ miles had been completed was not
produced.
(2) The Commercial Bank of Canada v. The Great Western Ry, Co., 3
Moore N- S. 291;.
(3) IbH. (4) Ibid.
THE RAILWAY LAW OF CANADA.
debentures, etc., or of the interest thereon, except through the
trustee or trustees appointed under the mortgage deed, it would
seem that if the trustees should fail or refuse to act, any of the
bondholders, for themselves and in behalf of the rest, might step
forward and put in motion the machinery of the law, making
the trustees parties defendant, (i) otherwise the bondholders
would be without remedy, except perhaps by mandamus to
compel the trustees to act. However, this right is generally given
by the deed, and if so could be validly exercised under section
96 (53.3).
Rights of 53. The trustees, acting for the bondholders, have sufficient
W protect6' authority and interest to enable them to maintain a bill in equity
their interests, to enjoin an alleged illegal proceeding which will seriously depre-
ciate the value of the bonds secured. (2) In Quebec it has been
held that the holder of railway bonds, constituting a privileged
claim on the moveable property of the Company, may, for the
protection of his rights, proceed against such property by an
attachment in revendication in the nature of a saisie cons rva-
toire. (3) And the bondholders themselves can maintain an
action to restrain a fraudulent diversion of a portion of property
mortgaged for their security, when one of the trustees is in col-
lusion with the company- (4)
Notice.
Trustees as
common
carriers.
53. Notice to trustees under an ordinary mortgage deed is
notice to the holders of the bonds secured by the mortgage.
Therefore, actual notice to the trustees of a prior equitable mort-
gage is notice of it to the bondholders, who therefore take their
bonds subject to the legal consequences of the incumbrance. (5)
And the fact that the bonds are treated as negotiable, and pass
from hand to hand like bank bills, does not affect the question
of the agency of the trustees in reference to the security pro-
vided by the mortgage. (6)
51. Trustees in possession of the railway under the provi-
(1) Jones R. K. Securities, § 362.
(2) Murdock p. Woodson, 2 Dill. 188.
(3) Wyatt v. Senecal, 4 Q- L. R. 76.
(4) Weetjen v. St. Paul & Pacific R. R. Co., 4 Hun. 529.
(5) Miller v. Rutland & Washington R. R. Co., 36 Vt. 452.
(6) Per Barrett, J., in same case, p. 484.
FINANCING OF RAILWAY COMPANIES. » 121
sions of the deed have been held liable as common carriers to the
same extent that the corporation would be liable, (i)
55. A party having agreed to advance money to a railway Who are
•company for the completion of its road, an agreement was exe- trustees-
cuted, by which, after a recital that he so agreed, and that a bank
had undertaken to discount his notes endorsed by the firm of
which he was a member to procure the money to be advanced, the
railway company appointed said bank its attorney irrevocable
(in case the company should fail to pay the advances as agreed)
to receive the bonds of the company (on which the lender held
security) from a trust company with which they were deposited,
and sell them to the best advantage, applying the proceeds as set
out in the agreement.
The railway company having failed to repay, as agreed, to
the party making the loan, the bank obtained the bonds from the
trust company, and threatened to sell the same.
The company by its manager wrote to the lender's firm a
letter, requesting that the sale be not carried out, but that the bank
should substitute them as the attorneys irrevocable of the com-
pany for such sale, promising that if that were done, the firm
should have the sole and absolute right to sell the bonds, the
proceeds to be applied in a specified manner. The firm agreed
to this, and extended the time for payment of their claim, and
made further advances ; and, as authorized by the last mentioned
.agreement, they re-hypothecated the bonds to the bank on cer-
tain terms. The company having again made default, the bank
gave notice that the bonds would be sold.
In an action by the railway company to restrain such sale, it
was held that the bank and the firm were respectively first and
second encumbrancers of the bonds, being to all intents and
purposes mortgagees, and not trustees, of the company in respect
thereof, and that there was no rule of equity forbidding the bank
to sell or the firm to purchase under that sale. (2)
It was further held that if the firm should purchase at such sale,
they would become absolute holders of the bonds, which would
(1) Daniels v. Hart, 118 Mass. 543.
(2) Nova Scotia Central Ry. Co. r. Halifax Banking Co-, 21 S. C. R. 537.
122 THE RAILWAY LAW OF CANADA.
not be liable to be redeemed by the company, (i) It was not
decided in this case what would be the effect of a trust deed by
which the railway was vested in trustees for the secuiity of bond-
holders. But according to the authority of Wallbridge v. Far-
well^ (2) this fact would make no difference in the rights of the
parties. When followed by possession in the terms of the trust
deed the property in the railway vests in the trustees, and the
interest of the railway company is reduced to a bare right of
redemption. (3)
Distinction 56. It may not be out of place at this point to set forth the
a'Tand"10 distinguishing features of mortgage under the civil and common
hypothec law systems.
under the ^he hypothec of the civil law had its origin in Greece, from
civil and com- J r *
monlaw. whence it was adopted by the Romans. It consisted in an
agreement whereby the debtor pledged his property without
abandoning the possession, on the condition, however, that in
case the debt was not paid at maturity he should lose his title
to the property. (4)
Under the Quebec civil code (5) hypothec is a real right
upon immoveables made liable for the fulfillment of an obliga-
tion, in virtue of which the creditor may cause them to be sold
in the hands of whomsoever they may be, and have a preference
upon the proceeds of the sale in order of date as fixed by that
Code. (6)
The use in that Province of trust deeds in the English form,
and the recital in special Acts of the phraseology of the English
law, has given rise to anomalies such as adjudicated upon in the
cnse of Wallbridge v. Farwell, (7)
In that case the statute authorized the conveyance of the
road to trustees for the purpose of the trust. The deed of
trust used the word " sold." The judge of the Superior Court
construed these terms as constituting a pledge of the railway
(1) Nova Scotia Central Ry. Co. v. Halifax Banking Co., 21 S- C. R- 537.
(2) 18 S. C. R. 12, Taschereau, J.
(3) Redfield v. Corpn. Wickham, 13 App. Cas. 473.
(4) Troplong, Hypotheque, vol. I, No. 7.
(5) C. C. 2016, and see arts 2040-44.
(6) 2009, 2047, 2130 C. C.
(7) IS S. C. R. I.
FINANCING OK RAILWAY COMPANIES. 123
to the trustees with this modification, that the trustees could
permit the company to work the property so long as the
interest on the bonds was paid. Counsel for the appellant
before the Supreme Court argued that there was either a pledge,
or an actual and complete sale of the railway. But Taschereau,
J., who rendered the principal judgment of the Supreme Court,
could not see in the deed a contract of pledge. Possession by
the pledgee is such an essential feature of that contract (i) that
there could not, in his opinion, exist any such thing as a contract
of pledge: (2) " It seems tome impossible to see in that deed,
as interpreted in the light of the Statute of 1880, anything else
than a hypothecation of this railway in favor of the bondholders,
not precisely the hypothecation of Article 2016 C. C., but with
the exceptional right, given by the statute, of the mortgagee to
enter into possession, in default of payment, after the exercise
of which right the contract between the parties became one of
nantissement (pledge), with, of course, droit de retention (Hen),
till paid, joined to the hypothec. (3)
Under the system of common law as distinguished from civil
law, a mortgage is in law an absolute conveyance subject to an
agreement for a reconveyance on a certain given event. But
the Court of Chancery allows the debtor, on payment within a
reasonable time after the debt becomes due, to redeem his estate,
and this is called his equity of redemption. Equity will not
suffer any agreement in a mortgage to prevail which will change
the latter into an absolute conveyance upon any condition or
event whatever. (4)
It follows that, as at common law the estate is in the mort-
gagee, an execution creditor cannot seize the mortgagor's estate
in the property. His remedy must be in equity, which allows
him either to redeem the prior incumbrances, or entitles him to
equitable execution, and consequently to a decree for the
appointment of a receiver and sale of the property ; but the
receiver will be appointed without prejudice to the rights of prior
(1) C. C. 1966-67.
(2) Citing 10 Q. L. R. 308; 4 Q. L. R. 323 ; 6 Q. L. R. I.
(3) Taschereau, J., in Wallbridge T. Farwell at p. 12.
(4) Williams Real Prop., Am. Ed- 1886, p. 421-426
124 THE RAILWAY LAW OF CANADA.
incumbrances, and he must not interfere with any prior incum-
brancer who might be in possession (i) It was doubtless such
considerations as these, based upon the common law doctrine as
to mortgages, which led to the decision in the Phelps case (2)
without sufficient attention being paid to the Railway Acts.
(1) Wells v. Kilpin, L. R., 18 Eq. 298.
(2) Supra, p. 101.
CHAPTER VI.
RECEIVERS.
RECEIVERS.
1. Appointment.
2. Quebec.
3. United Slates and England,
4. Louisiana,
5. France.
6. Ontario.
7 . In what cases appointment will
be made.
8. Duties and powers.
9. Division of income.
10. Extraordinary outlay.
1 1. Payment of right of way .
1. A receiver is a person appointed by a court of equity to Appointment,
take charge of property in dispute. The order appointing him
is in the nature of an injunction, or writ of sequestration, pre-
venting any^disposition of or interference with the property with-
out the consent of the Court, (i) There seems to have been
a considerable difference of opinion as to whether courts of
equity had any general equity jurisdiction over corporations, as
such, or whether their jurisdiction attached only by virtue of
such recognized heads of jurisdiction as trusts, injunctions and
the like. (2) But it is certain that, apart from statutory enact-
ment, courts of equity will appoint a receiver over corporate
property in the following cases : i. At the suit of mortgagees
or of bondholders who have a lien on the corporation property.
(3) It is considered that where an Act authorizes the mortgage
of a railway, it also by implication authorizes the appointment of
a receiver as necessary to give effect to the mortgage. (4) 2. At
the suit of creditors who have obtained judgment which they are
unable to collect by levy under common law execution. (5)
3. At the suit of any creditor or stockholder interested in the
funds of a mortgaged corporation, where there is a breach of
duty on the part of the directors and a loss or threatened loss of
(1) Thornton w. Washington Savings Bank, 76 Va. 433.
(2) Kerr on Receivers Annotation by Bispham, 2nd Am. ed., p. 80 ; High
on Receivers (1886), § 288.
(3) Furness ». The Caterham Ry. Co., 25 Beav. 614 ; Kerr on Receivers,
2 Am. ed., p. 81.
(4) Peto v. Welland Ry. Co., 9 Grant Chy. 457, Esten V. C.
(5) Evans v. Coventry, 5 D. G. M. & G. 911.
iz6 THE RAILWAY LAW OF CANADA.
funds ; (i) or a state of things exist in which the governing body
are so divided they cannot act together (2) ; or where a corpora-
tion has practically closed its business. (3) 4. Where a cor-
poration is dissolved and has no officer to attend to its affairs. (4)
• Quebec. 2. In the Province of Quebec such officers as receivers are
not recognized ; but by article 1823 of the Civil Code, a seques-
trator can be appointed by order of the court over moveables or
immoveables concerning the property or possession of which two
or more persons are in litigation.
In an early case it was decided in that Province (5) that
the court had not power to appoint a sequestrator or receiver
to the railway ; that the law regarding sequestration of property
does not extend to the judicial sequestration of the property of
bodies corporate. This case was carefully considered, but
since the advent of the Code, which merely crystallizes the old
law on the subject, numerous French commentators have dis-
cussed the matter, and a fairly abundant jurisprudence has in-
terpreted it, with the result that, although at the present day, in
the Province of Quebec the question may be considered a very
delicate one, yet in the recent case of Lambe v. The Montreal &
Sor el Railway Co., (6) it has been held that a sequestrator can
be appointed to the property of a railway company. And this
conclusion would seem to be sound. For while under the
Quebec law a receiver could not be appointed to take over and
manage the company as a corporation, the Code clearly con-
templates the sequestration of property in litigation in the inter-
est of all concerned, and the administration of the property by
the sequestrator subject to his accounting to the court. (7)
(1) Potts v. Warwick, etc , Canal Nav. Co., Kay 142; Whitworth v.
Gaugain, 3 H. 416 ; Ames v. Trustees of Birkenhead Docks, 20 B. 332 ;
Peto 21. Welland Ry. Co., 9 Grant Chy. 455.
(2) Featherson v. Cooke, L. R., 16 Eq. 298; Trade Auxiliary Co. v.
Vickers, ib. 303.
(3) Warren r Fake. 49 II. I'rac. Rep. 430.
(4) Hamilton v. Transit Co., 26 Barb. 46 ; Murray v. Vanderbilt, 39
Barb. 140 ; Lawrence v. Greenwich Fire Ins. Co., I Paige 587.
(5) Morrison v. Grand Trunk Ry. Co., 5 L.C. J. 313, S. C. 1861, Monk J.
(6) Decided in 1891, Lut not reported. The Court of Review decided,
rever.-ing the judgment of Taschereau, J. , of the Superior Court, that a se-
• questrator could be appointed to a railway.
(7) C. C. 1823-1829 ; and as to dissolved corporations see C. C. 371-3.
RECEIVERS.' 127
3. In the United States the jurisdiction in such matters is, as in United States
England, an equitable one ; yet the majority of decisions there ar)d England,
have held that the general jurisdiction of equity over corporate
bodies does not extend to the power of dissolving the corpora-
tion, or of winding up its affairs and sequestrating the corpor-
ate property and effects, in the absence of express statutory
authority, (i) In England the court can appoint a receiver
at the suit of a mortgagee of tolls, independently of any Act of
Parliament, on the ground that when an Act of Parliament
authorizes a mortgage, it authorizes, as incident to it, all neces-
sary remedies to compel payment, and in the case of tolls a power
to appoint a receiver. (2) But the receivership does not ex-
tend to the management of the railway. (3)
There is that peculiarity in the undertaking of a railway which
would make it improper for a Court of Chancery to assume the
management of it at all. Where the legislature, acting for the
public interest, authorizes the construction and maintenance of a
railway, both as a highway for the public and as a road on
which the company will themselves become carriers of pas-
sengers and goods, it confers powers and imposes duties and
responsibilities of the largest and most important kind. These
powers must be executed and these duties discharged by the
company. They cannot be delegated or transferred. It is
impossible to suppose that a Court of Chancery can make itself
or its officers, without any parliamentary authority, the hand to
execute these powers. It is immaterial that the company do
not object to, or may even desire, the appointment of a man-
ager by the court. (4)
In the United States it has in some cases been held, that even
in the absence of a statutory enactment, it is competent for a
Court of Chancery to appoint a receiver to take charge of and
manage a railroad, where such a course is indispensable to secure
the rights of the legitimate stockholders, and to prevent a failure
(1) High on Receivers, § 288.
(2) De Winton v. Mayor of Brecon, 26 Beav. 541 ; Kerr, Receivers, 2nd
Am. ed., p. 68.
(3) Gardner r. London, Chatham & Dover Ry. Co., L. R., 2 Ch. App.
212.
(4) Per Lord Cairns in Gardner v. Lon., Chatham & Dover Ry. Co.,
L.R., 2 Ch. App. at pp. 212-213.
128 THE RAILWAY LAW OF CANADA.
of justice, (i) As was said by Mr. Justice Swayne of the
United States Supreme Court : (2) " It has become usual to
clothe such officers with much larger powers than were formerly
conferred. In some of the States they (receivers) are by statute
charged with the duty of settling the affairs of certain corporations
when insolvent, and are authorized to sue in their own names.
It is not unusual for courts of equity to put them in charge of the
railroads of companies which have fallen into financial embarrass-
ment, and to require them to operate such roads until the diffi-
culties are removed, or such arrangements are made that the
roads can be sold with the least sacrifice cf the interests of those
concerned. As regards the Statutes, we see no reason why a
court of equity, in the exercise of its undoubted authority, may
not accomplish all the best results intended to be secured by
such legislation without its aid."
Louisiana. 4^ jn Louisiana, where the law of sequestration is similar to that
of the Province of Quebec, it has been held that, under the laws
and jurisprudence of the State, the courts have no power to
appoint receivers to railroad companies, and that, as a general
principle, courts have no jurisdiction to appoint receivers for
corporations in the absence of express statutory authority. (3)
But it has been held in that State that the courts have the
power of appointing receivers to liquidate the affairs of insolvent
corporations, if there be no other person provided by law to
effect such liquidation, whenever it is necessary in order to pre-
serve the interests of all parties concerned. (4)
This was in the case of an insolvent bank, and, as the corpor-
ation had ceased to exist, the court said that it was bound, ex
propria mo/u, to prevent the confusion and dilapidation con-
sequent upon the abandonment of its affairs produced by the
inefficiency of the law. The same was held in a later case. (5)
The courts of Louisiana have carefully refrained from appoint-
(l) Stevens v. Davidson, 18 Grattan 828; Paige v. Smith, 99 Mass.
395 ; Blumenthal v. Brainard, 38 Vt. 408 ; Del., Lack. & West. Ry. Co.
v. The Erie Ry. Co., 6 C. E. Green 298.
(2) Davis v. Gray, 16 Wall. 219.
(3) Baker v. Louisiana Portable Ry. Co., 34 La. Ann. 755.
(4) Starke v. Burke, 5 La. Ann. 740.
(5) In the matter of the Mechanics Society, 31 La. Ann. 627.
RECEIVERS. 129
ing receivers, and the above instances are the only ones where
such an appointment would be made, (i)
On the other hand, it has been laid down as a general principle
in a Quebec case, (2) that the judge has power to order every
kind of conservatory measure which the interests of the parties
require ; that this power is indefinite, and confided to the wis-
dom and discretion of the judge who exercises it ; and that
article 1823 of the Civil Code is not restrictive, but simply
indicative of an instance in which a sequestrator can be ordered.
This is the view of M. Gillouard, the latest French author on
the law of Seguestre, (3) who thinks that sequestration can be
ordered even where there is no dispute as to the property in,
or possession of, the thing sought to be sequestrated.
5. The French authors do not discuss the question of seques- France,
tration of bodies corporate. In France, all railways, whether
constructed or conceded by the State, or by the departments or
communes, are considered as forming part of the national high-
ways, and, consequently, of the public domain.
They are therefore not susceptible of alienation or of expro-
priation. (4)
The French authors and jurisprudence therefore are in no
way applicable, as their system of railway legislation is so
different from ours.
6. The case of Peto v. Welland Canal Company (5) brought Ontario,
up for the first time in Ontario the question as to whether a
judgment creditor of a railway company, with execution against
lands of the company lodged in the hands of the sheriff, is
entitled to the appointment of a receiver of the earnings of the
road, the profits thereof to be applied in payment of his demand.
Cases had already been decided in which courts had appointed
receivers of railways at the instance of mortgagees, it being con-
sidered that when the Act authorized the mortgage of a railway,
it also, by implication, authorized the appointment of a receiver
(1) Baker v. Louisiana Portable Ry. Co., 34 La. Ann. 756.
(2) Drummond v. Holland, 23 L. C. J. 241.
(3) Gillouard, Pr£t D<§pot, et Se'questre (1892), No. 175.
(4) Vigoureux, chemindefet (1886), No. 15.
(5) 9 Grant Chy. 455.
9
130 THE RAILWAY LAW OK CANADA.
as necessary to give effect to the mortgage. These cases show
that the appointment of a receiver to a railway is not contrary to
public policy, and in fact it must be obvious that as a receiver is
only to receive the surplus, after defraying all the expenses of
the road, which is all the time managed by the directors of the
company, the appointment of such an officer cannot be contrary
to public policy, (i) In this case also the distinction was made
between a. receiver as such and a receiver with the powers of a
manager of a road. A receiver, when spoken of under the Ontario
or English law, is undoubtedly one with very limited powers,
and not the receiver as meant in the United States, where that
officer is usually a manager of the railway.
In an early Ontario case (2) a " manager or receiver " of the
undertaking was appointed, so states the head note; but accord-
ing to the report, the petition asked for a " receiver '' of the
undertaking, and a receiver in Ontario is not a manager. (3) His
duties are stated to be, in Simpson v. The Ottawa & Prcscott
Railway Company, (4) to receive the gross receipts of the com-
pany for the carriage of passengers, freight, mails, etc., and to
pay the bills for running expenses thereout. And this is the
sense in which the duties of a receiver in England are inter-
preted. It was not until the Statute 30 and 31 Vic. (c. 127, s.
4) that managers could be appointed by the Court of Chancery
over a railway company. The words used in sec. 4, c. 127, of
that Act are : " may obtain the appointment of a receiver, and,
if necessary, of a manager, of the undertaking."
It was further said in the above case that the management of
the railway must remain in the hands in which the Legislature has
placed it. It is no part of the duty of a receiver to interfere
with it. (5)
(1) Esten V. C., in same case.
(2) Gait r. The Erie, etc., Ry. Co., 14 Grant Chy. 499.
(3) Allan v. Manitoba & N. W. Ry. Co., 14 Can. L. T. 315.
(4) i Ch. Chamb. 126 ; 10 U. C. L. J. (O. S.) 108.
(5) A holder of overdue debentures issued by a tramway company incor-
porated by special Act of Parliament, brought an action to realise his
security, and moved for the appointment of a receiver and manager. The
company was stated to be insolvent, but had not been ordered to be wound
up — Held, that a tramway company was not within the principle of Gardner
v. London, Chat. & Dover Ry. Co. (L.R. 2 Ch. 201), and that the court would
appoint a manager. Bartlett v. West Metropolitan Tramway Co. (1893) 3Ch..
RECEIVERS. 131
The learned judge also stated the duties of a receiver to be,
" to watch the expenses of the company ; to remonstrate with its
officers and servants when, in his judgment, they are needless or
excessive; and, when due attention is not paid to his represen-
tations, lo present the matter to this Court ; and this more es-
pecially if any case should come under his observation of ex-
penses incurred otherwise than in good faith. He will of course
have a right to the fullest information, as well from inspection of
the books as otherwise. "I think all this necessarily flows from
the nature of his duties. He is called on to pay out monies as
for expenses properly and necessarily incurred, and he shouli
to a reasonable extent see that they are such." (i)
Boyd, C., in Lee v. Victoria Ry. Co. (2) said, speaking of the
appointment of a receiver: "The management of the road is not
interfered with, but is left to the board of directors subject to this,
that the court, through its officer the receiver, retains control of
the expenditure. The position is anomalous, lo some extent,
owing to the absence of any power to appoint a manager, which,
though conferred upon the court in England, is not so here."
Upon the whole, there would seem to be no reason, even in
the Province of Quebec, why the courts should not appoint ••>,
sequestrator or receiver of the property, tolls, and revenues of a
railroad, with the view to having the same administered for the
benefit of the creditors of the company, subject to the rights of
mortgagees and other prior incumbrancers, and to the right of the
directors of the company to work and manage the undertaking
for the necessary purposes of the statute.
But the appointment of a sequestrator, or receiver, with power
to manage and carry on the company, would appear, from the
jurisprudence with regard to receivership in England, the United
States, and this country, to be incompetent of the courts here in
the absence of statutory authority.
7. In the appointment of a receiver the court acts only upon a jn what cases
proper case being made out for the exercise of its jurisdiction, appointment
,. ,, L , ,- , , • • , , . ' . will be made,
according to well established principles ; and in that sense only
347 ; 69 L. T. 560. See also Ames u.The Trustees of the Birkenhead Docks,
20 Beav. 350, where the respective duties of the governing body of the com-
pany on the one hand, and of the receiver on the other, are defined. And
see Lee v. Victoria Ry. Co., 29 Grant Chy. m, Boyd Ch.
(l) I Ch. Chamb., at p. 30. (2) 29 Grant Chy. in.
132 THE RAILWAY LAW OF CANADA.
can a receiver be said to be exdebito justicia, whether the appli-
cation be interlocutory or made at the hearing, whether the ap-
pointment of a receiver is the sole object of the action or only
incidental to other relief, and whether the relief is sought at the
instance of a judgment creditor or of anyone else, (i)
And the court will not appoint a receiver, by way of equitable
execution, on the ground that it will do no harm, unless there is
reason to believe that there is something to be received in which
the plaintiff can be interested. (2) Trustees of first mortgage bonds
covering the first division of a railway are entitled to have a
receiver appointed for that division, upon default of the com-
pany to pay interest on such bonds, and this independently of the
prior appointment of another receiver of the whole road by judg-
ment creditors of the company. Such judgment creditors could
not have the trustees of the first mortgage bonds made parties
to their suit, the latter having a lien and charge which were prior
to the former's claim ; they could only have parties added whose
claims were subsequent to theirs. (3)
Duties'and 8. Where a receiver of a railway company was appointed to
powers. receive " the rents, issues, and profits of the railway," it was held
that it was his duty to receive the gross receipts of the company
for the carriage of passengers, freight, mails, etc., and to pay the
bills for running expenses thereout, and not to receive only the
surplus after the payment of expenses.
In the case of a judgment creditor who has secured the ap-
pointment of a receiver, it is usual for the latter, out of the gross
revenue received by him, to pay the expenses of the undertaking
and the interest of the mortgagees, if any, and the balance into
court. (4)
Section 94 of the Act provides that the rents and revenues of
the company shall be subject in the first instance (after payment of
certain penalties) to the payment of the " working expenditure "
of the railway. The difficulty is to determine how far debts in-
(1) Smith v. Port Dover & Lake Huron Ry. Co., 12 Ont. App. 288.
(2) Smith v. Port Dover & Lake Huron Ry. Co., 12 Ont. App. 288.
(3) Allan v. Man. & N. W. Ry. Co., Man. Q.B. 1894, 14 Can. L. Times
l$-3l7-
(4) Ames v. Trustees of the Birkenhead Docks, 20 Beav. 350.
RECEIVERS. 133
curred for working expenses before the appointment of a receiver
would be preferred to the claims of the bondholders.
In Ontario, where a receiver of a railway had been appointed
to take the revenues, issues and profits, to pass his account
periodically, and to pay into court the balance due from him after
providing for the working expenses and outgoings of the rail-
way ; the master was directed to take an account of all persons
entitled to liens, charges or incumbrances, and to settle their
priorities, and the money to be paid into court was to be paid
to such persons according to their priorities to be ascertained.
The court held that the master, in taking the receiver's accounts,
should hpve allowed debts paid for working expenses which were
incurred before but not regularly payable until after his appoint-
ment, but not those already in default at that time, which latter
were properly payable out of the money to be paid into court
according to their priority, (i)
The phrase " ordinary mode of doing business " is interpreted
as meaning the mode which is most advantageous or convenient,
and does not include other modes or expedients to which a com-
pany may be driven by its necessities, and the natural result of
which is the creation of debts. (2) The term "working ex-
penses," regarded in the ordinary signification of the words, and
also in relation to the purpose of keeping the railway going, not-
withstanding the appointment of a receiver, has been held to in-
clude only those expenses which are necessary to keep it working,
and not expenses of by-gone times, by which the present working
of the road was no more affected than it was by any overdue de-
benture or coupon. (3)
In the case of Wallbridge v. Farwell, (4) however, in the Su-
preme Court, Mr. Justice Strong used the following significant lan-
guage : " I do not by any means intend to preclude myself in future,
should the question be raised in proper form and in an appro-
priate case, from considering whether the principle which is now
universally recognized in the United States, as to the applicability
of current earnings to current expenses, incurred either whilst
or before railway property comes under the control of the court,
(1) Gooderham v. Tor. & Nipissing Ry. Co., 8 Ont. App. 685, per
Patterson, J., at p. 694.
(2) Ibid. (3) Ibid., p. 694.
(4) 18 Can. S. C. R. I.
134 THE RAILWAY LAW OF CANADA.
by being placed, at the instance of mortgagees, in the hands of
a receiver, in preference to mortgage creditors whose security has
priority of date over the obligation thus incurred for working
expenses, should be adopted by our courts. This doctrine is
now firmly settled in the United States, where railway mortgages
exactly resemble those in use with us. and which do not at all
resemble the securities of debenture holders under the English
system of securities for borrowed capital ; and the practice
referred to is so pregnant with justice, good faith and equity that
there may be found strong reasons for applying it here when the
question arises." There is no doubt that, as stated by the
learned judge, the principle he advocates is now universally
recognized in the United States : but in that country the rule has
been extended to mere contract debts of the railway company,
such as for labor, materials and supplies, incurred prior to the
appointment of the receiver, and unsecured by any lien upon the
property.
In such cases Mr. High, in his work on receivers, ( i) thinks the
doctrine is wholly indefeasible upon sound legal reasoning. The
allowance of such preference plainly impairs the obligation of the
mortgage contract, and in practice frequently absorbs much of the
mortgage security. That author thinks, however, that the doc-
trine is so strongly intrenched in authority in the United States
that it can no longer be questioned.
Division of ^- ^ nas Deen forcibly argued that, the duty of the railway
income. company being to apply its current income to the payment of ob-
ligations incurred in the daily operation and management of the
road, before applying such income for the benefit of the mortgage
bondholders, a diversion of such income, as by payment of
bonded indebtedness, or by permanent improvement of the
property for the benefit of the bondholders, would justify the
courts in restoring to such unsecured creditors from the
receiver's income what has been improperly diverted by the
company for the benefit of the bondholders; and that the mort-
gagee, in accepting his security, is regarded as having impliedly
agreed that the current debts of the company, incurred in the
(i) High, § 394 a.
RECEIVERS. 135
ordinary course of its business, shall be paid out of its receipts
before he has any claim upon the income, (i)
On the other hand, it seems to the author (hat the mortgagee
is entitled to presume that the income of the company has been
properly applied ; and it would seem hardly just when he comes
to realize his security that he should find it largely impaired by
overdue and outstanding debts, taking precedence of his claim on
the ground that they were incurred for the " working expenditure"
of the railway ; and these words in the Act would seem to include
onlythe expenditure necessary to work and carry on the railway,
and not past due debts ; the author would, therefore, prefer the
doctrine laid down in Gooderham v. Toronto & Nipissing Ry. Co.,
(2) notwithstanding the very broad language used by the (now
Chief Justice of the Supreme Court in the dictum above cited.
10. While it is the duty of the receiver of the gross revenue of Extraordinary
-a railway, to pay thereout all expenses necessary for the main ten- out^ay-
ance, management and working of the undertaking, he would not
be warranted in spending the same in any extraordinary outlay ;
and where an application was made by the receiver to authorize
the purchase of a large amount of rolling stock, the outlay in
respect of which would require to be met by anticipating income,
the court refused to sanction the expenditure. (3) Nor have the
Court jurisdiction or discretion to order a receiver, who repre-
sents other interests than those of the first mortgagees of a rail-
way, to borrow money on the security of the railway and payable
in priority of all other charges thereon ; such sum to be used in
paying debts claimed to have been incurred for " working expen-
diture " under the Act. This could only be done on the appli-
cation of the first mortgagees. (4)
11. The payment bj1 a receiver of a sum of money to the owner Payment of
of land over which the line ran, for the right of way over his lands, ng wa^'
he having threatened to obstruct the passage of the company's
trains unless paid, is not a payment which could be included in
the term " working expenses or outgoings." (5)
(1) Fosdick v. Schall, 99 U. S. 235. Williamsons' Adms v. W. C. V. M.
& G. S. R. Co., 33 Grattan 624. High on Receivers, § 394 c .
(2) Ubi supra, p. 132.
(3) Lee v. Victoria Ry. Co., 29 Grant's Chy. 1 10.
(4) Allan v. Man. & N.W. Ry. Co. (Man. Q.B.), 14 C. L. T. 416.
(5) Gooderham ». Tor. & Nipissing Ry. Co., 28 Grant Chy. 212.
CHAPTER VII.
EMINENT DOMAIN.
1. Crown lands.
2. Alienation of such lands.
3. Lands reserved for naval or
military pur -poses.
4. Indian reserve land.
5. Lands oj another railway .
6. Contracts for purchase of land
before deposit of map and plait .
7. Annual rent.
8. Who may convey lands.
9. Powers limited in certain cases.
10. Title of company.
11. Agreement with proprietors, etc.,
after deposit oj plan.
12. Land that may betaken with-
out consent.
13. Extra land.
14. Occupying land for construction
purposes ,
15. Power to take materials for con-
struction.
16. Power to reach such material .
17. Power to purchase whole pro-
perty where better terms can be
stcured thereby.
18. Procedute in case of disagree-
ment.
19. Notice.
20. Arbitrators.
21. I-irsi Meeting.
22. Examination of witnesses.
23. Award final.
24. Appeal from award*
25. Arbitrators must act at meeting.
26. Vacancy among arbitrators.
The powers of eminent domain granted to railway companies
under The Railway Act have already been generally stated ; (t)
it now remains to be considered in what manner and to what
27. Disqualification of arbitrators.
28. Arbitrators, how to be gttided in
making valuationi.
29. Increased value to remainder of
land.
30. Lands injuriously affected by
the construction of the railway.
31. Nature of damages that may
be considered by arbitrators.
32. Value of land, how estimated.
33. Access to landways and water-
ways.
34. Quebec law and English law on
the subject compared.
35. Loss of business.
36- Injury to business-.
37. Loss of privacy.
38. Injury to franchises, ferries.
39. Injury to easements.
40 Injury to trees.
4 1 . Compensation a bar (o all further
claim.
42-44. Form of award.
43. Desisttne ntfi om notice.
45. Remedies against lh award.
46. Appeals from award. Practice.
47. Bringing the arbitration record
into court.
48. Grounds of appeal.
49 . Questions of fa ct.
50. Principles upon which Courts
interfere upon questions of fact.
51 Costs of arbitration.
52 Interest.
(I) Supra, p. 73 et seq.
EMINENT DOMAIN. 137
extent, and under what limitations and conditions, these powers
may be exercised.
Supposing that the company has made and deposited the ne-
cessary plans, and given the notices required of such deposit, (i)
how is the company to proceed to obtain the land required to
construct and maintain the railway ?
1. First as to Crown lands ; the company cannot take any of Crown lands,
the lands of the Dominion, without the consent of the Governor
in council, (2) nor any of the lands belonging to any Province
without the consent of the Lieutenant Governor ; (3) but with
such consent, and upon such terms as may be prescribed by
those executive officers, the company may take and appropriate,
for the use of its railway and works incidental thereto, but not
alienate, any of the lands of the Crown lying on their route
which have not been granted or sold to others, and which are
necessary for the purposes of the railway. (4) They may also
take any such part of the public beach or land covered by any
lake, stream, river or canal, always with such consent, as may be
necessary for the construction of the railway. (5)
Whenever such lands are vested in the Crown for any special
purpose, or subject to any trust, the compensation money which
the company pays therefor shall be held or applied by the gov-
ernor in council for the like purpose or trust. (6)
2. But the company could not, prior to the passing of the Alienation of
amending Acts 53 Vic., cap. 28, and 55-56 Vic., cap. 27, alienate such lands<
any part of the Crown lands obtained for the construction or in
aid of the railway. And even under par. s., added to section 90
by those Acts, it would seem doubtful whether the company
could alienate any part of Crown lands taken under section 99.
The power to alienate under par. s., according to the strict lan-
guage of the statute, only refers to lands "obtained" from the
Crown by way of subsidy or otherwise; and, as the prohibition
to alienate contained in section 99 remains, the legislature would
appear to have intended to make a distinction in this respect
(1) Sees. 123 to 135 ; and sec. 144; and supra, p. 76.
(2) Sec. 99. (3) See appendix, sec. 99.
(4) Sec. 99. (5) Ibid.
(6) Ibid.
138
THE RAILWAY LAW OF CANADA.
between lands " obtained" and lands "taken and appropriated"
under sec. 99. This is the only interpretation which would give
effect to the contradictory enactments of the two sections; and
it is not satisfactory, inasmuch as section 99 speaks of compen-
sation money to be paid for lands taken thereunder ; and cer-
tainly the taking of lands, with the consent of the Crown, and on
payment of compensation therefor, would seem to amount to an
" obtaining " under section 90, par. s. There seems to be here
an almost irreconcilable conflict.
Lands
reserved for
naval or
military
purposes.
land.
3. Whenever any part of the Crown lands, which the com-
pany may require for their railway, are reserved for naval or mili-
tary purposes, the company must firrt obtain a license under the
hand and seal of the Governor General. But this license cannot
be granted until a report has been made, approving of such
license, by the naval or military authorities in which the lands
are vested, (i)
Indian reserve 4- Again, it may be necessary for the railway company to take
or use a portion of an Indian Reserve. This canmot be done
without the consent of the Governor in Council; and the com-
pany must make compensation whenever they take or use any of
such lands, or when any such are injuriously affected by the con-
struction of the railway, the same as they would have to do in
the case of lands belonging to private individuals or corpor-
ations. (2)
3. In the construction and operation of the railway it may be-
come necessary that the company should obtain a right of way
over lands owned and occupied by another railway company, or
they may require the use of the tracks, or portions of the tracks,
or station grounds, or the lands of another railway company ; and
they are given power under the Act, with the approval of the
railway committee on application, after notice to the other com-
pany, to take possession of, use and occupy any lands of such
other company. The railway committee are empowered to give
such order in connection therewith as they may think just in the
public interest ; and all the provisions of the Act with regard to
(1) Sec. 100. See, as to nature of title to such lands, Grand Trunk Ry.
J Co. v. Credit Valley Ry. Co., 27 Grant's Chy. 232.
(2) Sec. 101.
Lands of
another
railway .
EMINENT DOMAIN. 139
the taking of land apply to such cases, both as to the power of
taking lands and to the compensation to be given to the other
company, (i) ".
6. Before referring to the extent of land which may be taken Contracts for
by expropriation, without the consent of the proprietor or in *'w~ {^before
vitum, it may be well to point out that the power to acquire land deposit of
with the consent of the proprietors by voluntary deed or bargain maP and Plan*
(2) may be exercised before the deposit of the maps and plans,
and before the setting out and ascertaining cf the land required
for the railwa) ; and the contr.icts or agreements for such acqui-
sition are declared to be binding at the price agreed upon, pro-
vided that the lands are afterwards set out and ascertained with-
in one year from the date of the contract or agreement, and even
though such land has in the meantime become the property of a
third person ; and possession may be taken and price dealt with
as if fixed by award of arbitrators, and the agreement is declared
to be in the place of an award. (3)
7. In the case cf persons who cannot, in the ordinary course Annual rent,
of law, sell or alienate lands which have been set out and ascer-
tained, a fixed annual sum or rent must be agreed upon as an
equivalent, and if the amount of this rent cannot be agreed
upon, it is fixed by arbitrators in the manner hereinafter referred
to, with regard to forced expropriation of property. (4) If any
such annual rent is agreed upon, or determined, or any part of the
purchase money remains unpaid, the railway properly, and its
tolls and revenues, are liable for the payment, in preference to all
other claims, with the exception of those due to the Govern-
(i) Sec. 102. (2) Sec. 90 (<:).
(3) Sec. 141.
1'he deed of sale for the right of passage does not cover incidental
damages arising from the works of a railway, unless such damages are
expressly mentioned in the deed. Cantin r. The N. S- Ry. Co., Q. B., 6
Sep., 1877, Ram. Digest 591.
Possession by a railway company of a person's land without his consent, or
without making him a prior oftier therefor, gives to the latter a recourse by
petitory action against the company. Cie. de Ch. de Fer Central &. Le-
gendre, 1 1 Q. L. R. 106, Q. B.
(4) Sec. 142. See Brewster v. Mongeau & The M. & S. Ry.Co., M. L.
R. 3Q.B. 20, 10 L. N. 141, 15 R. L. 67, Q. B., 31 L.C.J. 115, Q.B., 1887,
and Supra p. 79. Note.
140 THE RAILWAY LAW OF CANADA.
ment for penalties and the working expenses of the railway,
provided that the deed creating this charge is duly registered, (i)
Who may 8. It is provided by the Act that tenants in tail, or for life,
convey lands. gUar(jjanS) or tutors, as they are called in Quebec, curators to
incapable persons, executors, administrators, trustees, and insti-
tutes under substitutions, and all persons whosoever, not only on
their own behalf and that of their heirs and successors, but also
on behalf of those whom they shall represent, whether infants,
issue unborn, lunatics, idiots, married women, or other persons
seized, possessed of or interested in any lands, may contract and
sell to the company the whole or any part of such lands. (2)
But in case such persons have no right in law to sell the lands,
they must obtain from a judge, after notice to the parties
interested, an authorization to sell, and the judge may give such
orders as are necessary for that purpose, and. if required, an
order to secure the investment of the purchase money, in
accordance with the law of the particular Province, .in order to
secure the interests of the owner. (3)
(1) Sec. 143. See Brewster ?•. Mongeau & The M. & S. Ry. Co., supra,
p. 79, note.
(2) Sec. 136. It was held by the Supreme Court, that under the some-
what similar provisions of C. S C., cap. 66, s.i I, as explained and interpreted
by 24 Vic., cap. 17, s. i, a tenant for life was authorized to convey the
interest of the remainder-man, but not to receive payment for the proportion )
of the purchase money representing such interest. Midland Ry. Co. v.
Young, 16 L.N. 284 ; 22 S. C. R. 190, confirming judgment of the Court of
Appeal, 19 O. A. R. 265; and see Cameron t?. Wigle, 24 Gr. Chy. 8.
As to sale of infants' estate under former Acts, see Dunlop <•• Can.
Central Ry. Co., 45 TJ. C. Q. B. 74.
(3) Sec. 137. An authorization to a curator to a substitution to sell real
property affected by a substitution, unaccompanied by a similar authorization
to a tutor ad hoc to such of the substitutes as are living, but incapable of
acting, is insufficient. Benoit v. Benoit, 18 L. C. J. 286, S. C. 1874.
Every alienation or hypothec of theimmoveable property of a minor with-
out judicial authorization is radically null. Beliveau v. Barthe, 7 R. L.
453, and see C. C. 297 and R. S.Q., art. 5794.
An appeal does not lie to the Queen's Bench fiom an order of a judge
of the Superior Court homologating a family council, and ordering the sale of
a minor's immoveables. Beliveau v- Cle'ment & Chevrefils, 9 R.L. 664, Q.l>.
Where land was conveyed to C. D. for life, with remainder to her children,
and C- D. , during the infancy of the children, agreed to sell and convey to a
railway company for the purposes of its railway: — Held, that C. I)., notwith-
standing the provisions of sec. 136 of the Railway Act, had no right in law
to sell ; to get such right an order of a judge under sec. 137 was required ;
and where the proceeding was entirely for the benefit of the company,
and no factious opposition was raised by anyone, the company should pay
the cost of the order as part of the price of the land. Ke Dolsen, 13 P. R.
84, and see Wilson v. Graham, 13 O. R. 65i.
EMINENT DOMAIN. 141
There might seem to be an apparent contradiction between
this provision and that of sec. 142, which requires a fixed annual
rent, and not a principal sum, to be paid, in the case of persons
who have no power to sell in the common course of law. But
this latter section would appear to apply only to contracts and
agreements to sell under section 141, made before the deposit of
the plan, and the setting out and ascertaining of the lands
required for the railway ; though why this distinction should
be made is by no means clear.
9. These powers, in the case of executors who are not Powers
invested with power over the real property of the testator,
administrators of persons dying intestate, and ecclesiastical and
other corporations, and trustees of land for church or school
purposes, can only be exercised with respect to such lands as are
actually required for the use and occupation of the railway, (i)
10. But such a sale or conveyance, once made, or any con- Title of
tract or agreement to sell, made under these provisions, vests comPar
the company with an absolute title to the land, free from all trusts
and restrictions whatsoever, and the person so selling, or agreeing
to sell, is indemnified by the Act for whatever he may do under
its provisions. (2) And it is further provided that the company
shall not be responsible for the disposition of the purchase mo-
ney, if paid to the owner of the land or into court for his benefit-
(3)
The effect of these sections would appear to be that, while the
company may obtain a valid conveyance in fee simple from
persons seized or possessed of lands in a representative or fidu-
ciary character, such as those mentioned in sections 136 to 138,
the purchase money must be paid to the real owner, or if he
cannot be ascertained, or if for any other reason the company
(1) Sec. 138. The Rector of Woodstock filed a bill against the G. W. Ry.
Co. for the specific performance of an alleged contract for himself and his
successors as the consideration for certain rectory land conveyed by the
plaintiff to the company for railway purposes .
The Court of Chancery decreed for the plaintiff.
The Court of Appeals not being satisfied with the evidence of the alleged
contract, and also deeming the contract to be open to various objections,
reversed the decree and ordered the bill to be dismissed with costs. Bettridge
v. The G. W. Ry., 3 U. C., E. & A. R. 58 (Grant).
(2) Sec. 139. (3) Sec. 140.
142 THE RAILWAY LAW OF CANADA.
sees fit, into court for his benefit. And probably the same inter-
pretation would be given to these sections of the present Act,
as was given to the provisions of C. S. C., cap. 66, on the same
subject in Midland Ey. Co. v. Young; (i) where the language
of the statute was almost in precisely the same terms as the pre-
sent one.
As to mortgages, hypothecs and other encumbrances upon
the property, the question is not without difficulty. In Quebec,
the mortgagee has only a privilege or preference upon the pro-
ceeds of the property of his debtor, when it is broug- t to sale by
process of law ; (2) but the latter is not divested of his property,
and may alienate it, subject, however, to the hypothec, which
subsists upon the property notwithstanding the sale. (3) And
the creditor of the hypothec may take an hypothecary action to
bring the property to sale in the hands of any third holder, unless
the latter prefer to pay his claim. (4) In the absence, therefore,
of any express words in the Act extinguishing hypothecs upon
lands sold to a railway company under these sections, the com-
pany would remain subject to the hypothecary action. There
do not seem to be any such express words. Section 139 merely
says that the sale shall vest in the company " the fee simple in
the lands, freed and discharged from all trusts, restrictions and
limitations " ; which would seem to refer to such as are indicated
in the preceding sections ; — the words certainly do not include
hypothecs and encumbrances. Section 140 only relieves the
company from liability for the "disposition" of the purchase
money when paid to the " owner." The word owner here is not
to be taken in the sense of the definition given in the interpreta-
tion clause of the Act [sec. 2, par. (p)], but in its natural and
ordinary meaning. (5) In Quebec the mortgagor does not cease
to be the owner of his land, as above pointed out, and when he
sells is under no obligation to apply the purchase price to the
extinction of any hypothecs, as the purchaser takes the land
subject thereto, leaving him only his recourse against the seller.
In the case of land taken in invitum, a distinction is made by
the Act. The compensation stands in the place of the lands ;
(i) 22 S.C.R. 190. (2) C. C. 2016.
(3) C.C. 2053. (4) C.C. 2058, 2061.
(5) Young v. Midland Ry. Co., 19 O. A.R. per Osier J. A. at p. 275.
EMINENT DOMAIN. 143
and any claim or encumbrance upon the lands is converted into
a claim upon the compensation, for the amount of which alone
the company is responsible, saving its recourse against the per-
son wrongfully receiving the same, (i) So an hypothecary ac-
tion would not lie against the company in such case, but merely
a personal action for the amount of the compensation. (2)
In the Provinces where the principles of the English law
prevail, the above reasoning would probably not apply ; the
position of the mortgagor and mortgagee being so radically differ-
rent, (3) and the mode of enforcing the rights and remedies of the
mortgagee so dissimilar. In Ontario it has been recently held,
that where a railway company had fixed and settled the amount
of compensation to be paid to the mortgagor of certain lands
taken by the company, the mortgagees were entitled to a manda-
mus to compel the company to arbitrate as to the compensation
payable to them in respect of the land mortgaged to them ; inas-
much as the mortgagor could only deal with his own equity of
redemption, and did not represent his mortgagees, and was not
included in the enumeration of persons who, under sec. 13 of R.
S. O., chap. 170, are enabled to sell or convey lands to the com-
pany. ^4)
11. After the deposit of the plan, and after notice has been Agreement
given in the newspapers as already mentioned, (5) ten days w.1^ Pr°P"
• i f s \ i rt nctorsj etc. ^
having elapsed, (6) the railway company may apply to the after deposit
owners of lands, or persons empowered to sell, or persons inter- °f plan-
ested in lands which may suffer damage from the exercise of the
powers of the railway, for the purpose of acquiring their lands, or
settling the compensation to be paid for the value of the property,
or damages. (7)
12. If an agreement cannot 'be come to, the extent of land Land that
which can be taken from a proprietor without his consent is limited may be taken
. . ..'".• without
to 33 yards in breadth ; except where the railway is raised consent.
(1) Sec. 166.
(2) Brunei ». Montreal & Ottawa Ry. Co., Q. R., 3 S. C. 445.
(3) See supra p. 122.
(4) In re Toronto Belt Line Ry. Co. & Western Can. L. & S. Co., 95
C. L.T. 95; 26O.R.4I3.
(5) Supra, p. 76.
(6) One month, R. S. Q. (7) Sec. 144.
144
THE RAILWAY LAW OF CANADA.
Extra land.
Occupying
land for
construction
purposes.
Power to tak
materials for
construction.
more than 5 feet higher, or cut more than 5 feet lower than the
surface of the land, or where offsets are to be established, (i) or
stations, etc., erected, or goods to be delivered, in which cases
not more than 150 yards in breadth by 650 in length may be
taken. (2)
13. If any more land is required for the accommodation of
the public, or of traffic, or for protection against snow drifts, an
application must be made and a plan submitted to the Minister,
(3) and on application after notice supported by affidavit that
the land is necessary for the purpose, and no other suitable land
can be obtained at such place on reasonable terms, and with less
injury to private rights, the Minister may grant the application,
(4) and after the deposit of the plan, and the giving of the
Minister's certificate, the company may proceed to take the extra
extent of land, in the same manner as any other lands. (5)
14. The company, either for the purpose of constructing or
repairing its railway, or for the purpose of carrying out the
requirements of the railway committee, or in the exercise of the
powers conferred upon it by the railway committee, may enter
upon any land which is not more than two hundred yards
distant from the centre of the located line of the railway, and
may occupy the said land as long as is necessary for the pur-
poses aforesaid ; but before entering upon any land for the
purposes aforesaid, the company shall, in case the consent of
the owner is not obtained, pay into the office of one of the
Superior Courts of the Province in which the land is situated,
such sum, with interest thereon for six months, as is, after two
clear days' notice to the owner of the land, or to the person em-
powered to convey the same or interested therein, fixed by a
judge of any one pf such Superior Courts. (6)
e 15. Whenever stone, gravel, earth, sand or water is required
for the construction or maintenance of the railway, the company
may, if it cannot agree with the owner of the land on which the
(i) Double tracks, R. S. Q. (2) Sec. 103 ; 250 yds., R. S. Q.
(3) Sees. 106, 107. (4) Sees. 107-109.
See Lon., Brighton & South Coast Ry. Co.v. Truman, L. R., II App.
Cas. 45.
(5) Sees, no, in. (6) Sec. 112.
EMINENT DOMAIN. 145
same are situated for the purchase thereof, cause a land surveyor,
or an engineer, to make a map and description of the property
so required, and serve a copy thereof, with a notice of arbitra-
tion, as in the case of acquiring the roadway ; and such pro-
ceedings may be had by the company, either for the right to the
fee simple in the land from which the material is taken, or for
the right to take material at any time it thinks necessary, — and
the notice of arbitration, if arbitration is resorted to, shall state
the interest and powers required, (i)
16. Whenever any stone, gravel, earth, sand or water is so Power to
taken at a distance from the line of the railway, the company ie
may lay down the necessary sidings, water pipes or conduits
and tracks, over or through any lands intervening between the
railway and the land on which such material or water is found,
whatever is the distance, and all the provisions of the Act, except
such as relate to the filing of plans and publication of notices,
shall apply, and the powers thereby granted may be used and
exercised to obtain the right of way from the railway to the land
on which such materials are situated ; and such right may be
acquired for a term of years, or permanently, as the company
thinks proper ; and these powers may, at all times, be exercised
and used in all respects, after the railway is constructed, for the
purpose of repairing and maintaining the railway. (2)
17. Whenever, for the purpose of securing sufficient land for p0wer to
stations or gravel pits, or for constructing, maintaining and using purchase
the railway, any land may be taken under the compulsory pro-perty where
visions of the Act, and by purchasing the whole of any lot or better terms
parcel of land over which the railway is to run, or of which any thereby
part may be taken under those provisions, the company can
obtain the same at a more reasonable price or to greater advan-
(i; Sec. 113.
Held, that a judge may grant his warrant to put a company in immediate
possession of land from which material is required to be taken for construction
purposes Joly v. Moreau, 2 L. N. 284.
(2) Sec. 114.
An injunction lies against a railway company which has taken land without
the formalities required by the Act ; and the writ can be taken at the instance
of one of the joint proprietors even when the other owner had consented to the
possession by the company. Beauharnois Junction Co. v. Bergevin, 17 R. Li
113, Q. B.; Beauharnois Junction Co. z>. Hainault, 17 R. L. 116, Q. B.
146
THE RAILWAY LAW OF CANADA.
Procedure in
case of disa-
greement.
Notice.
tage than by purchasing the roadway line only, or only such
part, the company may purchase, hold, use or enjoy the whole of
such lot or parcel, and also the right of way thereto, if the same
is separated from the railway, and may sell and convey the same
or any part thereof, from time to time, as it deems expedient ;
but the compulsory provisions of the Act do not apply to the
taking of any portion of such lot or parcel not necessary for
these purposes, (i)
18. Any questions which may arise in case of disagreement
as to the value of the lands to be acquired, or the damages
which may be caused by the exercise of the powers of the rail-
way with regard to any lands, are settled in the following manner :
19. The railway company serves a notice upon the inter-
ested party, which must contain a description of the lands to
be taken, or the powers intended to be exercised by the railway
with regard to the lands (describing the lands with regard to
which such powers are to be exercised), and a statement of the
amount which the company is ready to pay as compensation for
such lands, or for such damages, and the name of a person to
be appointed as arbitrator (2) of the company, if the offer is not
accepted. (3) This notice must be accompanied by the certifi-
cate of a sworn provincial land surveyor or engineer. The sur-
veyor or engineer, as the case may be, must be a disinterested
person, and not the arbitrator named in the notice.
This certificate, signed by the surveyor or engineer, must state
that the land is required by the railway, or within the limits of
deviation allowed by the Act ; that he knows the land in ques-
tion or the amount of damage likely to arise from the exercise of
the powers ; and that the amount offered by the company is, in
his opinion, a fair compensation for the land and for the damages.
(4) This notice, accompanied by the certificate, is served upon
the party, either personally or at his domicile. If he is absent
from the county or district in which the lands are situated, or is
(1) Sec. 115.
(2) A railway company, in serving an expropriation notice, is merely
bound to give the name of their arbitrator, without any indication as to his
residence or occupation. A. & N. W. Ry. Co. v. Dunn, 10 L. N. 26.
(3) Sec. 146. (4) Sec. 147.
EMINENT DOMAIN. 147
unknown, or cannot be found, the company applies to a judge, (i)
producing the certificate and affidavit of ?ome officer of the com-
pany, establishing that the peison is absent, or after diligent
inquiry cannot be found, or that it cannot be ascertained who
the owner is, and thereupon the judge may order a notice to be
inserted three times during the course of one month in a news-
paper published in the district or county in which the land is
situated, or if there is no newspaper published there, in one
published in some adjacent district or county. (2)
The notice having thus been served, either personally or by
advertisement, the opposite party is bound to give notice to the
company as to whether he accepts or refuses the offer, and if he
refuses, he must give the name of his arbitrator; he must do so'
within ten days of the service on him of the notice, or within one
month after the publication of the advertisement; and if he does
'not do so within that delay, the company may apply to a judge,
who shall upon such application appoint some person to be sole
arbitrator for fixing the compensation. (3) If, on the other hand,
the proprietor, or opposite party, as he is called in the Act,
names his arbitrator, then the company's arbitrator and the pro-
prietor's arbitrator (as we shall call him hereafter) agree upon a
third ; and if they cannot agree, the judge, on application of
either party, after six clear days' notice, appoints a third arbitra-
tor. (4)
/JO. These three arbitrators are thus chosen for the purpose Arbitrators,
of fixing the indemnity, or compensation, — as it is called by the
Act, — to the proprietor of the lands taken or damaged by the
railway. (5)
It is provided by article 407 of the Civil Code of Quebec that
no one can be compelled to give up his property, except for
public utility and in consideration of a just indemnity previously
paid. This principle will be found underlying the constitution
of most civilized States, and is one which is fundamental to the
liberty of the subject. In this country, where the Legislature is
supreme, and is not shackled in the exercise of its will in such
matters by any provisions of a written constitution, as in most
(i) Sec. 148. (2) Sec. 149. (3) Sec. 150.
(4) Sec. 151. (5) Sec. 152.
148 THE RAILWAY LAW OF CANADA.
of the United States, yet, while great powers of eminent domain
have been given to Railway Companies over the property of pri-
vate individuals, ample provision has been made for their being
fully compensated for all loss which they may suffer by the exer-
cise of such powers, (i) And the Act provides the means,
through arbitration, by which this compensation is to be ascer-
tained and determined. It remains to be considered how this
compensation is to be arrived at, and what kind of damages may
be assessed by the arbitrators, and what persons are entitled to
recover compensation under the Act.
The three arbitrators, or the sole arbitrator, if a sole arbitrator
has been appointed under the Act, must be sworn before a Jus-
tice of the Peace, to faithfully and impartially discharge their
duties; and proceed to ascertain such compensation in such way
as they, or he, or a majority of them shall deem best. (2) Thus
a large discretion is given to the arbitrators as to the manner in
which they shall ascertain the compensation.
First Meeting. 21. At their first meeting, the arbitrators, or a majority of
them, are required by the Act to fix a day on or before which
the award shall be made, and it is provided that if the award is
not made on or before the day so fixed, or some other day to
which the time for making it has been prolonged, either by con-
sent of the parties or by resolution of the arbitrators, then the
amount offered by the company by their notice of expropriation
shall be the compensation to be paid. (3)
(1) Sec. 92.
(2) Sec. 152. In Lower Canada, notaries have power to receive the re-
poit of arbitiators to give certified copies of the oath of arbitrators annexed
thereto, and such power is specially recognized as belonging to them by
the Statutes 2 Will. IV. cap. 58, and 13 and 14 Vic., cap. 114 (S.C. judgt.
repotted 4 L. C. R. 189, Reverted). Roy and The Champlain & St.
Lawrence Ry. Co.,6L.C.R. 277 (Q. B. 1856).
(3) Sec. 156.
An award of arbitrators and amiable co»>positeurs, not signified on the
parlies interested until after the delay limited by the agreement for the render-
ing of the award, is null and void, notwithstanding s-uch award may have
been rendered within the prescribed time. Chapman v. Hodson, 9 L. C. J.
112, S. C. 1864.
That in consequence of default of service of an award within the delay
fixed by law and by the terms of the compromise, the award was absolutely
null and of no effect. Blanchet v. Charron, 4 L. C. J. 8 (Q. B. 1842).
Arbitrators must not only hear the parties, but must decide the matter in
dispute before the expiration of the rule of reference ; their proceedings are
EMINENT DOMAIN. 149
22. The arbitrators must examine on oath or solemn affirma- Examination
tion, the parties, or such witnesses as may appear before them, of witnesses
They have power, to administer the oath or affirmation them-
otherwise void. Gilley v. Miller, i Step. Dig., p. 104, § 765, i Rev. de L.
510.
Where the parties through their respective attorneys consent to extend the
time for making an award under a rule of reference, such consent does not
operate as a new submission, but is an enlargement of the lime under the rule
and a continuation of the extended period of the authority of the arbitrators,
and therefore an award made within an extended period is an award made
under the rule, and is valid and binding. Oaks v. The City of Halifax, 4 S.
C. R. 64.0, Cass. Dig. 34 (New Edit.;.
According to the Act 43-44 Que., cap. 43, sec. 9, §§ 22, " a majority of the
aibitrators at the first meeting after their app>mtment, or the sole arbitrator,
shall fix a day on or before which the award shall be made. An omission
to do so will render the award null and void. N. S. Ry Co. v. Beaudet et
al., ii Q. L. R. 239 et 241, Q. B.
(N. B. — This jadgment was taken to the Supreme Court, where the award
was upheld, but on a different point ; the question of fixing a day at the first
meeting does not appear to have been discussed by the Supreme Court. Vide
II L. N. 35; 15 S. C. R. 44.)
The Railway Act does not require that the award should show on its face
that a day has been fixed on or before which the award had to be made, or
that it was made within the time so fixed ; it is sufficient that it should be
proved that as a matter of fact such time was fixed and that the award was
made within the delay. Benning v. The A. & N. W. Ry. Co., M. L. R., 5
S. C. 136. Affirmed in appeal M. L. R., 6 Q. B. 385, and Supreme Court, 20
S. C. R. 177.
Under Ry. Act 1879, 42 Vic., cap. 9, where the arbitrators appointed to
fix the compensation for a property adjourned to a day subsequent to that
originally fixed for making the award, without stating in their minutes that
such adjournment was for the purpose of making an award, and at their sub-
sequent meeting the three arbitrators and counsel for the parties were present,
and no objection was made to the regularity of the meeting, such absence of
objection was held to constitute a tacit ratification of the proceedings up to
that time. O. & Q. Ry. Co. v. Cure, etc., de St. Anne, M. L. R., 7 Q.
B. 1 10.
Cause referred at nisi flri/is, and verdict taken for plaintiff subject to a refer-
ence, award to be made by a certain day, with power to the arbitrators to
enlarge the time; they did enlarge it once, but no award was made, and after
that day was passed, defendant's attorney was asked by plaintiff's attorney
to consent to a further enlargement, and declined, no application had been
made to the arbitrators. The Court held they could do nothing more than
set aside the verdict. Moulson v. Eyre, 5 U. C. Q. B. 470.
A cause was referred, the award to be made before ist July, with leave to
the arbitrator to enlarge, but no verdict was taken. He enlarged until
August 2nd, and after hearing the evidence he adjourned to the 4th, to enable
defendants to procure their witnesses.
Neither party attended again, or took any steps to procure a further en-
largement, and plaintiff gave notice of trial. Defendants pleaded that the order
of reference was yet in force, but the plaintiff went on and took a verdict, de-
fendants not appealing.
Held, that defendants, if they desired the reference to continue, should have
applied for an enlargement before the verdict, and that by omitting to do so
they had waived their right ; but under the circumstances the verdict was set
150 THE RAILWAY LAW OF CANADA.
selves, (i) It will be observed here, that the Act does not give
aside without costs upon affidavit of merits. Miller v. Hogg, 2 P. R.
(Ont ) 299.
Where a submission is that an award shall be delivered by a certain day, if
it be ready for delivery by that day it is sufficient. Galbraith v. Walker, E. T.,
2 Viet. Ont Digest, p. 138.
After expiration of the time limited, arbitrators cannot, without (even if they
can with) the consent and concurrence of both parties to the submission,
make a binding award. Ruthven v. Ruthven, 8 U. C. Q. B. 12.
A verbal consent to an enlargement of the time for making an award is
sufficient under C. L. P. Act, § 171. Jones v. Pientice, 2 Can. L. J. N. S.
205.
When there has been an agreement between two parties giving power to
a third, within a certain time, an award on a matter of difference between
them, if the award is not made within the specified time, but one of the parties
not knowing that fact takes it up and pays the charge for it, his doing so will
not amount to a waiver of the condition as to time, contained in the agree-
ment.
Quaere, whether taking up an award known to have been made after the
limited time would amount to an admission that the arbitrators' authority had
not expired. Earl of Darnlcy v. London, Chatham & Dover Ry. Co., L.
R., 2 H. L. 43.
(i) Sec. 155.
An award is not null because the witnesses have not been legally sworn.
Tremblay v Tremblay, 3 L. C. R. 482 (S. C. 185;).
In an action brought upon an award of arbitrators, the defendant may
contest the validity of the report which does not set forth that the witnesses
were heard, by alleging that the arbitrators refused to hear the witnesses, and
such defendant will be allowed to prove such refusal. Ostell & Joseph, 9
L. C. R. 440, Q. B. (1857).
An award of arbitrators under a rule of Court will not be set aside on a
motion (supported by the affidavit of the defendant), on the ground that the
award was not accompanied by satisfactory evidence that the trustees or their
witnesses were legally sworn ; it appearing that the oath was administered
to the parties and their witnesses by one of the arbitrators. Daly v. Cun-
ningham, 6 L. C. J- 242, S. C. 1862.
A report of arbitrators will be set aside and annulled on motion, when it
appears that a material witness gave evidence before the arbitrators without
having been legallj sworn. U'Connell v. Frigon, 9 L. C. J. 173 (S. C.
1865).
An award that does not state that the parties had been heard before the
sole arbitrator, or had an opportunity to urge their respective pretentions, was
held to be defective, and was rejected on motion. Farmer v. McNeil, I
L. N. 220 ; 22 L. C. J. 76, 1878.
Where arbitrators appointed to value a property proceeded upon an
erroneous basis in law, and refused to admit the best evidence of value, an
interested paity may obtain a writ of -mandamus against the arbitrators to
compel them to admit the evidence. Jones v. Laurent, 8 L. N. 341 ; M. L.
R., i S. C. 438, 1885.
See S. E. Ky. Co. z>. Gouvrement, 15 R. L. 258 (Q B. 1887).
The fact that the arbitrators and the witnesses were sworn may lie estab-
lished by the declaration in the award itself, setting forth that they were
sworn, — more particularly where no objection was made at the time by the
arbitrator who represented the patty objecting to the validity of the award.
Mills r. The A. & N. W. Ry. Co., M. L. R., 4 S. C. 303.
EMINENT DOMAIN. 151
any power to arbitrators, or to the parties, to summon witnesses
or to compel witnesses to attend before the arbitrators ; it is
only those witnesses who voluntarily appear before them whom
they must examine.
The evidence of the witnesses is required to be taken in
writing as depositions, and the arbitrators are required, on
the request of either party, to transmit the depositions of
the witnesses, with all papers and exhibits referred to and
connected with the proceedings, except the award itself, to the
clerk of the court, (i) Under the Quebec Act, and under the
Railway Act anterior to the one now in force, there was no such
provision as this ; it was not required that the evidence of wit-
nesses should be taken in writing, nor that the arbitrators should
transmit any papers or notes of evidence to the court.
There may be a seeming contradiction between the provisions
of section 152, giving the arbitrators power to ascertain the
compensation in such way as they may deem best, and those of
155, which require them to examine the parties and witnesses
under oath. The language of section 152, so far as referred to,
is identical with the language of the corresponding section in the
Act preceding the one now in force, and in adding section 155,
which was put in for the purpose of bringing before the court,
upon an appeal from the award, the evidence taken, the effect of
the two sections was apparently not considered ; but we must
construe them to mean that while the arbitrators must take the
evidence of the parties, if offered, and the evidence of any wit-
nesses produced before them, they shall, with the assistance of
such evidence, ascertain the compensation as they may deem
best.
23. It is provided by section 152 that the award of the arbi- Award final
trators, or the majority of them, shall be final and conclusive,
except as afterwards provided.
24. This refers to the provisions of section 1 6 1, which gives Appeal from
an appeal, upon any question of law or fact, to the Superior award.
Court, with the proviso that this right of appeal shall not affect
the existing law or practice in any Province as to setting aside
awards. The questions touching this appeal and the setting
aside of awards will be considered later. (2)
(i) Sec. 155, ss. 2. (2) Post. p. 202.
'52
THE RAILWAY LAW OF CANADA.
Arbitrators
must act at
meeting.
Vacancy
among
arbitrators.
Disqualifica-
tion of
arbitrators.
25. The award of the arbitrators cannot be made, nor can
any official act be done by a majority, except at a meeting of
which each of the arbitrators has received at least two clear days'
notice, or to which some meeting at which the absent arbitrator
had been present had been adjourned. No notice is required
by the Act to be given to either of the parties of any meeting of
the arbitrators; the notice to the arbitrators appointed by the
party is held to be sufficient, (i)
20. If any vacancy should occur amongst the arbitrators
named by the parties before the award is rendered, by reason of
the death of either of them, or by reason of one of them refusing
or failing to act, within a reasonable time, another arbitrator
may be appointed by either of the parties in place of his
arbitrator; (2) or if it is the office of the sole arbitrator or
the third arbitrator which is rendered vacant, by the above
mentioned causes, or through disqualification, his place is
supplied either by agreement between the two arbitrators as to a
third arbitrator, or by a person named by the judge, as provided
in the case of original appointment. And no recommencement
or repetition of the previous proceedings is required. (3) It has
been held, under this section, that the judge has no power to
appoint an arbitrator for either party, or to replace the arbitra-
tor of either party who has resigned. (4)
27. As to the disqualification of arbitrators, it is provided by
section 159, that the person named as valuator or sole arbitrator
shall not be disqualified, unless he is personally interested in the
amount of the compensation, even though he is professionally
employed by either party, has previously expressed an opinion
as to the amount of the compensation, or even though he is
related to the proprietor or to any shareholder in the com-
pany. And it has been held that the fact that the third
arbitrator represented the company, after the award in other
similar proceedings, forms no legal ground of disqualification.
(5) No objection to the sole arbitrator, or to the third
arbitrator appointed by a judge, can be made after his ap-
(I) Sec. 152. (2) Sec. 157. (3) Ibid.
(4) Ont. & Que. Ry. Co. v. Latour, M.L.R..4S.C. 84 (S.C. Que.
(5) Benning z/. A. & N.W. Ry. Co., M.L.R., 5 S.C. 136 & 6 Q.B. 385.
EMINKNT DOMAIN. 153
pointment; and any cause of disqualification must be urged
"before the judge at the time of the application for appointment,
and the question is there and then decided summarily by the
judge, (i) Should the disqualification be pronounced, another
person may be appointed by a judge upon application of either
party. (2) As to the arbitrators appointed by the parties, any
cause of disqualification must be urged before the appointment
of the third arbitrator ; and the judge determines the question
summarily on the application of either party after two days'
notice to the other. (3) This section does not provide what
shall or shall not be valid grounds of disqualification of an arbi-
trator appointed by the parties, as sec. 159 does in the case of an
arbitrator appointed by the judge. But the provisions of that sec-
tion should a fortiori apply. It has been held that the rendering
of services, as a notary, to one of the parties would not disqua-
lify such notary from acting as arbitrator for such party ; (4)
and in the Supreme Court, that, as the evidence showed that the
arbitrator was not in the continuous employ of the parties expro-
priated, but merely acted for them, from time to time, in his
professional capacity as a notary, and not in any other capacity,
he was not disqualified. (5)
The party expropriated cannot object to the arbitrator named
by the company, on the ground of his relationship to the sur-
veyor whose certificate accompanied the offer made by the
company, nor on the ground of alleged inexperience. (6)
In case of the disqualification of an arbitrator appointed by
either party, the party who proposed the disqualified arbitrator
shall be held not to have appointed an arbitrator, (7) and the
•consequence would appear to be that the arbitration should be
proceeded with by a sole arbitrator appointed by the judge on the
application of the company. (8) The Act might be clearer on
this point ; but there is certainly no provision for the appoint-
ment by the party of an arbitrator to replace one disqualified, the
(i) Sec. 159. (2) Sec 157. (3) Sec. 160.
(4) The North Shore Ry. Co. v. Les L'rsulines de Quebec, Ramsay's
Digest 60 (Q. B. Que. 1884).
(5) Cassels Dig., p ^6 (S C. of C., 5th March, 1885).
(6) Benning v. A. & N. W. Ry. Co., M L. R., 5 S. C. 136. and 6 Q.
B. 385.
(7) Sec. 160. (8) Sec- 150.
THE RAILWAY LAW OF CANADA.
Arbitrators,
how to be
guided in
making
valuations.
Increased
value to
remainder of
land.
only provision for thus filling a vacancy being in the case of the
death or failure to act of one or other of the arbitrators named
by the parties, (i)
28. We shall now consider on what grounds as to compen-
sation the arbitrators are to base their award.
The arbitrators, in fixing the compensation to be paid to a pro-
prietor any part of whose land has been taken by the company,.
are bound to consider both the value of the land taken and the
damages which may be caused to the remainder of the property
by the exercise of the powers of the railway. (2)
29. They are bound to take into consideration the increased
value that may be given to the remainder of any land, a portion
of which is taken by the road, by reason of the passage of the
railway through or over the same, or of the construction of the
railway, and are bound to set off this increased value, if any,.
against any inconvenience, loss or damage that may be sustained
by reason of the company taking possession of and using the pro-
perty. (3) This provision of the Act would appear at first sight
to be almost a contradiction in terms, for if loss or damage is sus-
tained on account of the company using a portion of the property,
it is hard to see how the remainder so damaged could be
increased in value; but the intention of the Act is to provide for
a case where, though the proprietor may suffer a certain amount
of inconvenience and loss, for instance by the severance of one
portion of his farm from another, yet the remainder of his land
may be increased in actual market value by reason of the railway
being constructed there. In such a case the increased value is
set off against the loss and inconvenience.
(1) Sec. 157.
(2) Sees. 144, 146, 152. The amount awarded for the right of way for a
railway company is compensation under sees. 146, 147, 152 of The Railway
Act, 51 Vic., cap. 29, not only for the land taken by the railway, but also for
the damages likely to be occasioned to the proprietor during the construction
of the railway. Evans v. A. & N. W. Ry. Co., M. L. R., 6 S.C. 493. Rail-
way companies have the right under The Railway Act to fell and remove
trees which stand within six rods of the railway, and the damage which may
result from the exercise of this right forms pait of the damages to be covered
by the compensation awarded to the person whose land is expropriated, and
he has no action to recover any additional amount for the value of trees within
this limit which maybe cut down and removed by the lailway company. —
(3) Stc-
EMINENT DOMAIN. 155
It has been held in the United States that this increase in
value must be a special benefit or increase peculiar to the prop-
erty in question, and not a general increase in value common to-
all the properties in the neighborhood, (i) It is often the
case that the construction of a railway in a particular locality
will increase the value of land generally within a certain radius,
and this increase, it has been held, cannot be set off against
the loss or damage caused to the property of any particular
proprietor ; (2) but, under the language of our Act, it would
seem as if such increase in value could be set off and must
be set off by the arbitrators. The language is general, cover-
ing all increase in value that may be given to any lands-
through or over which the railway will pass, by reason of the pas-
sage of the railway, or by reason of the construction of the rail-
way. Of course, particular properties might be especially bene-
fited or increased in value by the construction of the railway,
that is, by the works in connection with its building, which might
have a beneficial effect upon the property; as, for instance, giving
the land better drainage; but the passage of the railway could
not benefit one particular property without benefiting and
increasing in value those in its immediate neighborhood, in a
greater or less proportion; and, therefore, under the language of
the Act, which requires the arbitrators to set off the increased
value caused by the passage of the railway, it appears to be
impossible to say that they must not take into consideration a
general increase of value benefiting properties in general in the
vicinity of the road. It would indeed be inequitable to hold that
while the construction and passage of a railway through or over
a property might largely increase its value, yet the railway com-
pany would be compelled to pay damages for the inconvenience
caused to the proprietor, without any consideration being taken
of the increase in value to his land. In other words, the proprie-
tor would not only benefit by the increased value of his pro-
(1) Lewis, Eminent Domain, # 471 ; Mills, $# 152, 153.
(2) Ibid; and see Belts v. Williamsburgh, 15 Barb. 255 ; and as to what
are and are not special benefits, see Shattuck v. Stoneham Branch R. R. Co.,
6 Allen (Mass.) 115 ; Pittsburgh & Lake Erie Ry. Co. v. Kobinson, 95 Pa. St.
426 ; Washburn S- Milwaukee & L. W. R. R. Co., 59 Wis. 364 ; Minn. Cen-
tral R. R. Co. v. Macnamara, 13 Minn. 468 ; Paine v. Woods, 108 Mass.
160 ; Childs v. New Haven & Northampton R. R. Co., 133 Mass. 253.
156 THE RAILWAY LAW OK CANADA.
iperty, in common with his neighbors, whose lands were not taken,
and who yet might suffer inconvenience from the passage of the
railway for which they could not recover indemnity, but he
would also receive indemnity for the particular inconvenience or
loss which he might suffer.
It frequently happens that while the expropriated party may
suffer damages through the inconvenience he is put to by the
passage of the railway through his land, yet the remainder of his
land is increased in value, along with the properties in the vicinity,
by the mere presence of the railway. In the case of Benning
v. The Atlantic & North West Railway Company, (i) the
Court of Appeals in Quebec, confirming the decision of the
Superior Court, held that such increase of value might be taken
into consideration and set off against the damages.
This case was taken to the Supreme Court, where the judgment
was confirmed. (2) In that Court, though, the point was not spe-
cially dwelt upon ; the Court held that the arbitrators had acted
in good faith and fairness in considering the value of the property
before the railway passed through it and its value after the rail-
way had been constructed, and upheld the award.
In Ontario, one of the judges of the Court of Appeals there has
held, in a case of James v. The Ontario & Quebec Railway
Co., (3) that what was intended by a similar section in a pre-
vious Act (4) is a direct and peculiar benefit accruing to the par-
ticular land in question, and not the general benefit to all land
owners resulting from the construction of the railway. This may
be looked upon as an obiter dictum, it having been unne-
cessary for the decision of the particular case; and the other
judges refused to pass upon the point, the Chief Justice (Hagar-
tv> C. J.) saying that the question involved the consideration of
several decisions of Ontario Courts, and that he would prefer to
leave it open till it should arise. (5) In a previous Ontaiiocase,
{6) the principle had been recognized thai when the act pro-
posed to be done gives increased value to the land, such
increased value must be allowed. The dictum of Judge Burton
(i) M. L. R., 6 Q. B. 385. (2) 20 S. C. R. 177.
(3) 15 O. A. R. i. (4) R. S. C., cap. 109, sec. 8, par 2i.
(5) 15 O. A. R. at p. 13.
(6) In re Can. Southern Ry. Co & Noivall, 41 U. C. Q. B. 195.
EMINENT DOMAIN. 157
in the James case may have been influenced by the opinion
which he seems to have held, that the increase in value might be
set off against the value of the land taken, as well as against the
damages, (i) This opinion could not be sustained under sec.
153 of the present Act, which distinctly says that the increased
value is to be set off against '' the inconvenience, loss or dam-
age " that may be suffered. And though the same opinion is
expressed by Mr. Lewis in his work on Eminent Domain, (2)
it is ably combatted by Mr. Mills, (3) who says that the fairest
rule is to set off the benefits against disadvantages, only allowing
the owner to recover any excess of disadvantages over benefits ;.
but not allowing the excess of benfits to reduce the claim for the
actual value of the land and materials taken. If the increased
value could be set off against the land taken, it would be unjust,
as Mr. Lewis argues (4) that one person should be obliged to
pay for general advantages by a contribution of land, while his
neighbor, whose property is not taken, enjoys the same advan-
tages without price. But where, as under our Act, there is no
contribution of land, the full value of the land taken being paid
by the railway company, (5) there could be no injustice in set-
ting off, against the damages suffered by the proprietor, the
increased value of the remainder of his lands, even though such
increase in value were a general one and common to the lands in
the neighborhood.
This question has been considered in two cases in the Exche-
quer Court arising under the provisions of the Government Rail-
ways Act, 1 88 1. (6)
Sec. 1 6 of that Act reads as follows :
" The arbitrators shall consider the advantage as well as the dis-
advantage of any railway, as respects the land or real estate of
any person through which the same passes, or to which it is con-
tiguous, or as regards any claim for compensation for damages
caused thereby ; and the arbitrators shall, in assessing the value
of any land or property taken for the purposes of any railway, or
in estimating the amount of damages to be paid by the depart-
(i) 15 O- A. R. at p. 3. (2) p. 606.
(3) Mills' Eminent Domain, § 158. (4) Lewis, § 471.
(5) Post p. 160. (6) 44 Vic., cap. 25,
158 THE RAILWAY LAW OF CANADA.
ment to any person, take into consideration the advantages ac-
crued or likely to accrue to such person or his estate as well as
the injury or damages occasioned by such work."
Commenting on this section, Mr. Justice Burbridge, in the case
of The Queenv. Carricre^ said : (i) " The language of this pro-
vision is apparently large enough to include not only the special
and direct'benents arising from the position of a property on the
line of a railway, but also the general benefit not arising there-
from, but from the facilities and advantages caused by the rail-
way which affect all the estates in the neighborhood equally, and
which are shared in common with such estates. I apprehend,
however, that the narrower is the true construction of the provi-
sion, and that the advantages accrued or likely to accrue should
be limited to those which are special and direct, (2) and, in a
case like the one under consideration, to such as arise from
increased conveniences for carrying on business, because of the
opportunity of connecting the property with the railway by tracks
and sidings." And, in a subsequent case of Paint v. Ihe Queen,
the same learned judge expressed himself as follows : (3) " It is
not denied that the property as a whole is benefited by the con-
struction of the railway. On this point the witnesses, speaking
generally, agree. But it is said that the advantages accruing
therefrom are common, at least, to all the owners of lots in the
town of Guernsey, and therefore ought not to be considered for
the purpose of cutting down the damages to which the claimant
would otherwise be entitled. It is true, I think, that the enhance-
ment in value resulting from the construction and proposed
operation of the railway is common to all the property in the
town, but such benefits may, nevertheless, fall within the rule as
to special, as contra-distinguished from general, advantages. (4)
Here, again, I think that the unity of the estate should be regard-
ed. The claimant is the founder of the town. He still owns or
is interested in more than two-thirds of the lots into which he has
divided it. The Government makes it the terminus ot the Cape
Breton Railway, and constructs, within its limits, stations, freight-
Ci) 2 Exchq. Rep. at pp. 45-6,
(2) Quoting Sutherland on Damages, Vol. Ill, pp. 452-3-4.
(3) 2 Excheq. Rep. at pp. 155-6.
(4) Sutherland on Damages, Vol. III., p. 454.
EMINENT DOMAIN. 159
sheds, round-houses, wharves and all the works usually found at
a terminus. That certainly is an advantage, and I think a spe-
cial advantage to the claimant and to the property. If the Act
to which I have referred does not apply to such a case, it would,
I think, be difficult to suggest a case to which it would apply."
This last judgment was confirmed on Appeal to the Supreme
Court, (i)
In both these cases, it will be observed, the judge in the
Exchequer Court allowed the set-off of advantages special to the
property, but was of the opinion that if the advantages had been
general (which it was held they were not) then no set-off would
be allowed. This latter opinion, which was hardly necessary for
the decision of the ca?e as the set-off was allowed, would be sup-
portable on the argument of Mr. Lewis above referred to, (2)
inasmuch as the section of the Act cited appears to contem-
plate the set-off of advantages against the value of the land, and
therefore the party expropriated would be in the position of
paying for these advantages by a contribution of land. For
the arbitrators are directed, in assessing " the value of the land "
or the damages to be paid, to take into consideration the advan-
tages accrued, or likely to accrue, as well as the injury or damage.
However, the learned judge in the Exchequer Court seems to
have construed this clause, (3) as allowing a set-off only against
damages. If this construction be correct and applicable to the
Railway Act, then these decisions conflict with that of JBenningv.
The A. & N. W. Ry. Co. (4) already referred to.
In view of these conflicting decisions, and until we have a final
holding by the Supreme Court, the true interpretation to be
placed upon this section of The Railway Act may be said to be
doubtful.
In the event of its being allowed, the increased value must be
set off against any damage which may be caused to the property,
and not against the value of the land. (5) For instance, should
the arbitrators find there was no damage, loss or inconvenience
to the property caused by the railway, and that the proprietor
(i) 18 S. C. R. 718^ (2) Supra p. 157.
(3) 2 Exchq. Rep. at p. 47 and at pp. 155-6.
(4) M. L. R., 6 Q. B. 385 ; 20 S. C. R. 177.
(5) Sec. 153, and see Mills Eminent Domain, § 158.
160 THE RAILWAY LAW OK CANADA.
was only entitled to the actual value of the land taken, they
would not be justified in setting off any increase in value in the
remainder of the land against the value fixed for the land taken
itself. It has been authoritatively held, that the true method of
fixing the compensation is to take the value of the whole pro-
perty as it was at the time of the deposit of the plan, for that is
the date with reference to which the compensation is to be fixed,
and ascertain the value of the remainder of the land, after the
passage of the railway, and the difference is the compensation to
be paid to the proprietor, (i) This seems to be an eminently
fair and equitable method of ascertaining the compensation, and
immediately does away with the many difficult questions which
have arisen as to the different grounds of damage which may be
considered by the arbitrators in fixing the compensation.
Take the instance of a farm of 100 acres. If the arbitrator?
can fairly say that this farm was worth $10,000 at the time of the
deposit of the plan, and that, the railway company having taken
two acres in superficies out of it, the remainder is only worth
$9,400, they at once arrive at a fair compensation to the proprie-
tor, by taking the difference of $600, or whatever difference they
may find to exist in the value of the farm. This principle, how-
ever, is subject to one qualification, namely, that they must
always pay the proprietor the actual value of the land taken. (2)
It might happen that the construction of the railway would in-
crease the value of the remainder of the propeity, even to such an
extent that the remaining portion would be worth more than the
whole property as it originally stood, yet the arbitrators must
award the proprietor the full value of the piece of land taken,but
in such a case they would not be authorized to give him anything
for damages resulting from inconvenience, etc. If this rule, with
the qualification mentioned, were generally adopted, it would
avoid the difficulty under section 153 as to the setting off of the
increased value ; for the arbitrators would simply look at the
difference in value between the whole property as it originally
stood, and the remainder of it after being mutilated by the rail-
way company. (3)
(i) Benning v. A. & N. W. Ry. Co., 20 S. C- R. 177 ; The Queen v.
Carrier, 2 Exch. Rep. at pp. 44-45; Ont. & Que. Ry. Co. v. Taylor, 6.
O. R. 348 ; James v. O. & Q. Ry. Co., 12 O. R. 624 ; 15 Ont. A. R. I ; Par-
adise. The Queen, I Exch. Rep. , per Taschereau J., at pp. 222-23.
(2) Supra, p. 157. (3) O. & Q. Ry. Co. o. Taylor, 6 O. R. at p. 348.
EMINENT DOMAIN. 161
In England there is no provision in the Imperial Acts similar
to that contained in sec. 153 of our Act, nor any provision
allowing benefits or advantages to be set-off against the value of
the land or damages. In the case of Senior v. The Metropolitan
Railway, (i) such a set off was claimed, but refused by the court,
on the ground that the value of the land must be paid for, irres-
pective of any benefit that might accrue to the remainder by the
construction of the railway. It was thus put by Wilde B. : (2)
" I desire to protest against the idea that in assessing compen-
" sation a railway company can claim a set-off by reason of a
" benefit their works may have done the neighborhood. No
" doubt a railway does improve a neighborhood, and everybody
" is entitled to the advantage of that improvement ; but if any
" individual has a portion of his land taken, he is entitled to be
" paid for it." This is in accord with the principle above stated,
that in any event the value of the land taken must be paid ; but
is not applicable to a case where it is sought to set off the en-
hanced value of the remaining land against damages under our
Act.
3O. In arriving at their award, the arbitrators have the right Lands
to take into consideration, in the language of the Act, " the in-
" convenience, loss or damage that may be suffered or sustained the construe-
" by reason of the company taking possession of or using tbe
" lands." (3)
In England, statutory compensation is given to the owner
of lands "injuriously affected by the construction of the rail-
way," to use the language of the English Act. (4) And it
has bee.i held by the Privy Council, in The Corporation of Park
dale v. West, (5) that the Consolidated Ry. Act of 1879 places
(I) 32 L. J. Ex. (N. S.)225- (2) Ibid. at p. 230.
(3) Sec. 153. (4) 8 Vic., Cap. 20, sees. 6 and 16.
(5) 12 App. Cas. 602.
By 46 Vic., ch. 45, provision was made for the construction of a subway
as a means of crossing certain railways entering Toronto, part of which had
to be constructed within the city, and within the municipality of Parkdale ;
the city and village could not agree upon terms, so the latter united with
the railways in obtaining an order-in -council under 46 Vic., cap. 24, author-
izing the companies to execute the work, and by agreement the village
authorities agreed to do the work for the railway company.
In an action against the village by proprietors in the city and village on
II
162 THE RAILWAY LAW OF CANADA.
on the same footing, as far as expropriation proceedings are con-
cerned, the taking of land and the interference with rights over
land ; and includes provisions for compensation in respect of land
injuriously affected though not actually taken ; and that the pay-
ment of compensation by the railway company is a condition pre-
cedent to its right of interfering with the possession of land or
the rights of individuals. This case was followed by that of Pion
v. The N. S. Ry. Co., (i) where, under the Quebec Railway Act
of 1880, the Privy Council held that an owner of land which is
account of damage caused to their properties by the mode of executing the
work, whereby their access to a street was interfered with ;
Held, reversing judgment of Court below, that the work was not done by
the municipality under the special Act, nor merely as agent of the railway
companies, and the municipality was liable as a wrongdoer. West v. The
Corporation of the Village of Parkdale, 12 S.C.R. 250.
In the Privy Council :
Held, that an order of the railway committee under sec. 4 of the Domi-
nion Act, 46 Vic., cap. 24, does not of itself, and apart from the provisions of
law thereby made applicable to the case of land required for the proper car-
rying out of the requirements of the railway committee, authorize or em-
power the railway company on whom the order is made, to take any person's
land, or to interfere with any person's right.
Held, that such provisions of law include all the provisions contained in
the Consolidated Railway Act, 1879, under the headings of " Plans and Sur-
veys,'' and " Lands and their Valuation," which are applicable to the case ;
the taking of land and the inteiference with rights over land being placed
on the same footing in that Act.
Where a railway company, acting under an order of the railway commit-
tee, did not deposit a plan or book of reference relating to the alterations
required by such order.
Held, that it was not entitled to commence operations.
Held, further, that under the Act of 1879, the payment of compensation
by the railway company is a condition precedent to its right of interfering
with the possession of land or the rights of individuals.
(Distinguishing Jones v. Stanstead Ry. Co., L. R., 4 P.C. 98) Corp.
of Parkdale v. West, 12 App. Cas. 602.
(i) 12 L.N. 395 ; 14 App. Cas. 612.
Held, that a railway company, authorized by Parliament to construct its
line along the bank of a navigable river, is not liable in damage to neighbor-
ing proprietors, whose access to the river has thus been cut off. North Shore
Ry. Co. v. Pion, 4 Dorion Q. B. R. 358 ; 9 L. N. 218 ; 12 Q, L. R. 205,
Q.B.
But Held, by Supreme Court (reversing), that a riparian proprietor and
owner on a navigable river is entitled to damages against a railway company,
although no land is taken from him, for the obstruction and interrupted
access between his property and the navigable waters of the river, viz/, for
the injury and diminution in value thereby occasioned to his property ; and
that the railway company in the present case, not having complied with
the provisions of 43-44 Vic., cap. 43, sec. 7, § 3 and 5, Que., the appellant's
EMINENT DOMAIN. 163
injuriously affected by the construction of the railway is entitled
to statutory compensation ; and in default of the company pro-
ceeding, in the manner provided by the Act, to have the damage
remedy by action at law was admissible. Pion v. North Shore Railway
Co., 14 S.C.R. 677.
And Held, by the Privy Council, that the respondents, as riparian pro-
prietors, had the same rights of acces et sortie as they would have had if the
river had not been navigable ; that the obstruction to such rights without
parliamentary authority was an actionable wrong, but the substituted open-
ings were no answer to a claim for indemnity; there is no distinc-ion in
principle between riparian rights on the banks of navigable or tidal rivers
and on those non navigable. In the former case, however, there must be no
interference with the public right of navigation, and in order to give rise to
riparian rights the land must be in actual daily contact with the stream
laterally or vertically. Lyon v. Fishmongers Co., followed, i Appeal Cas.
662, and held applicable to every country in which the same general law
of riparian rights prevails unless excluded by some positive general rule
or binding authority of the lex loci.
Held, that under the Quebec Consolidation Railway Act, 1880, sec. 9, no
authority is given to a railway company to exercise its powers in construct-
ing its works, in such a manner as to inflict substantial damage upon land
not taken without compensation.
Held, further, that as the appellants had not taken the necessary steps
under the Act of 1880, to vest in them the power to exercise the right or do
the things for which compensation would have been due under the Act, an
action by the respondent would lie for damages, and the removal of the ob-
struction ; in which if the obstruction were not ordered to be removed,
damages as for a permanent injury to the land could be recovered. North
Shore Ry. Co. v. Pion, L.R., 14 App. Cas. 612.
Damage to rights of house owners, such as droit cT acces to streets, does
not constitute expropriation and gives no right to preliminary indemnity.
In France, the depreciation caused to a house by stopping one end of the
street on which it fronts is not an interference with a servitude ; nor stand-
ing alone such direct and immediate damage as will give title to indemnity ;
and semble, the law of the Province of Quebec is identical. Mayor of Mont-
real & Drummond, 22 L.C.J. I, Q.B. ; L.R., I App. Cas. 384 ; Ramsay's
Digest 1004.
The lands in question were lots 3, 4 and 6 Clinton avenue, in the town of
Niagara Falls. The defendants had taken, for the purposes of their railway,
a small part of lot 3, and the plaintiff claimed damages for the injury caused
to that lot and lots 4 and 6, by lowering the street in front of these lots, so
as to enable the railway to be carried over the highway, and which was
done in such a manner as to obstruct the plaintiff's access to his land.
Held, affirming the judgment of the Court below : I. That upon the evi-
dence the sum paid for the part of lot No. 3 actually taken included any
damage to that lot but not to lots Nos. 4 and 6.
2. l hat the claim as to lots 4 and 6 was in respect of land injuriously
affected by the exercise of the powers of the railway company within the
meaning of the Con. Ry. Act, 1879, sec. 9, § 10 and 12 D.
Held, that under that Act or under the Con. Stat. of Can., cap. 66, as ap-
plied to these defendants by their special Act, compensation was recover-
able.
Held, also, that there was nothing to exonerate the defendants in the
fact that they had obtained leave from the municipality for doing as they
1 64 THE RAILWAY LAW OF CANADA.
assessed, he may claim it by action. In both these cases it is to
had done, and that the Court could compel an arbitration to which the
plaintiff was entitled under the Act. Eowen v. Can. Southern Ry. Co., 14
O. A. R. i.
To maintain an action of damages against a railway company, because of
the running of the railway over a highway adjoining plaintiff's residence, and,
as alleged, obstructing his ingress and egress, it is necessary for the plaintiff to
prove that the immediate access to the premisfs was affected, and that he
sustained damage particular to himself, and differing in kind from, and beyond
that of, the rest of the public.
That the municipal authorities, having tolerated the laying and using of the
railway as a public highway in the municipality, may be thereby estopped from
urging that the use of the same was unauthorized by them. Brodeur r. The
Corporation of Roxton Falls and The S.E. Ry. Co., n R L. 447 (1882).
Where appellant, the owner of several houses bordering on a street, thiough
which a railway was authorized to pass both by statute and by resolution of
the city council, sued the corporation for damages suffered on account of the
construction and working of the railway ; it was held that the appellant had
no right of action against the corporation, for if the corporation gave the
authorization in compliance with the statute, there was complete justification
of the Acts complained of ; the corporation, moreover, only gave the company
liberty to choose one of the streels, and although the council were subsequently
informed of the choice made, and asked to take steps to legalize the line, they
took no further action.
The recourse of the appellant, if any be had, was not against the corpora
ticn but against the owners of the railway. Lefebvre v. The City of Quebec,
Supreme Court, Cassel's Digest \Tj (New Edit.).
Where the Legislature had granted a corporation leave to construct a
bridge over a river in the Province of Quebec, it was held, that in order to
recover damages for such construction it is necessary to prove that it obstruct-
ed the riparian proprietor's free ingress and egress to the liver, and that in
respect of obstruction to navigation, actual and special damage must be
proved. Bell v. Corporation of Quebec, L. R., 5 App.Cas.84, 7 Q.L.R. 103.
Privy Council.
The privilege of erecting a toll bridge over a river does not confer any right
of property in the waters of that river, which are part of the public domain.
The proprietor of such a bridge cannot demand the demolition of works
erected upon a public river under authority of law, such as a bridge built by a
lailway company to cross passengers and carriages, even if used to convey
them for gain or hire, contrary to a clause in his charter, his recourse being
limited to the indemnity prescribed in his chatter, and in default of payment
thereof, a prohibition of all transport over the railway bridge will be granted.
Jones v. The Stanstead, etc., Ry. Co., 17 L.C. R. 81.
But Held, by the Judicial Commit'.ee of the Privy Council, that assuming
the plaintiff, by \irtue of his special Act, to be entitled to compensation, yet
his action failed inasmuch as giving notice to treat for compensation was
not a condition precedent to the company's right to exercise their powers,
and theiefore that the company were not wrongdoers. L.R., 4 P. C. App.gS.
Corporations in using the power conferred on them of expropriating are
bound to use diligence, and consequently they are liable for the damages
suffered by the expropriated proprietor by reason of unnecessary delays.
Judah v, The City of Montreal, 2 R.C. 470, Q.B.
Held, affirming the judgment of Gwynne, J., 43 U. C. R. 522, that when
a municipality raises a highway in such manner as to cut off ingress and egress
to and from property abutting thereon, the owners of such property are entitled
EMINENT DOMAIN. 165
be observed that the damage complained of was caused by the
to compensation under 36 Vic., c. 48, s. 373 (Ont.). Yeomans v. The Cor-
poration of Co. of Wellington, 4 O. A. R. 301.
Trustees were possessed of a mill, 90 yards from an important thoroughfare
in Glasgow, having parallel accesses on the level from two sides of the mill to
the thoroughfare. A railway company by their special Act cut off entirely one
access, substituting therefor a deviated road over a bridge with steep gradients,
and the other access they diverted and made it less convenient. But none of the
operations were carried on e\' adcerso the premises. The railway company's
powers were contained in the 6th section of the Scotch Railway Clauses Act
of 1845 (similar to the English Act), and which provided that " the railway
company shall make to the owners and occ'ipiers of and all other parties in-
terested in, any lands taken, or injuriously affected by the construction thereof,
full compensation for the value of the lands so taken, and for all damages
sustained by such owners, etc."
Held, affirming the decision of the Court below, that though an agreement
entered into between the parties when the bill was before Pa-liament,
whereby the trustees were induced to withdraw their opposition, provided their
claim to compen»ation (should their lands be injuriously affected) should not
be barred by reason of the company not taking any of that land, gave no right
to compensation, the trustees were entitled to it under the Railways and Lands
Clauses Con. (Scotland) Acts 1845. Per I-°rd Selbourne, L. C. The
obstruction of access to a private property by a public road need not be ex
adverse, but it must be proximate and not remote or indefinite to entitle the
owner of that property to compensation for the loss of it — and it is a question
whether a mere change of gradient alone would be a proper subject for com-
pensation. The Caledonian Railway Co.?;. Walker's Trustees, L. R., 7 A. C.
259-
A's predecessor in title obtained a feu contract from a superior, a build-
ing lot situate at the south side of an estate. The plan of the estate shewed it
divided into fcuing lots with streets running east and west, and one street 24
feet wide connecting the turnpike road on the north to another road on the
south, and forming one side of A's feu. The lot was disposed "together
with free ish and entry thereto by the streets laid down on the said plan, but
in so far only as the same may be opened and not altered in virtue of the
reserved power after mentioned." The reserved power was that "the
superior should have full power and liberty to vary and alter said plan or
streets or roads thereon, in so far as regards the ground not already fenced."
A railway company took a piece of land running fiom east to west through
the estate, and in executing their works cut off all access for carriages by the
street marked on the plan running from south to north 24 feet wide.
None of A's land was taken. A claimed compensation in respect that his
lands were injuriously affected under sec. 6 of the Railway Clauses (Scotland)
Act 1845.
Held, that A was not entitled to compensation, because : I, the access in
question had not been opened in the sense meant in hii feu contract before
the statutory notice ; and 2, there was no obligation in the feu contract cast
upon the superior to pursue his feaing scheme and give the feuers at some
future time access along any of the roads or streets marked on the plan. Also,
when there is an implied obligation by the feuer to prosecute his feuing
scheme for the benefit of the feuers, they have a vested interest de future in
the roads and streets shewn on the feuing plan sufficient to sustain a claim
for compensation under the Railway Clauses Consolidation (Scotland) Act
1845. Fleming d^ Wife v. The Newport Railway Co., L. R., 8 App. Cas. 265.
See London, Brighton & South Coast Ry. Co. v. Truman, L. R , 1 1 App.
Cas. 45.
1 66 THE RAILWAY LAW OF CANADA.
construction of the work. In the one case the owner's access to
a street was cut off, in the other his access to a river.
In the instances cited, however, their Lordships were careful
to confine the right to recover damages to those cases where
lands were injuriously affected by the construction of the railway
as distinct from its operation. That is to say, the lands, or some
real right appertaining to the lands, must be affected by the
actual construction of the work, — such, for instance, as by the
making of a cutting or the construction of an embankment ob-
structing the proprietor's access and egress to and from his pro-
perty ; (i) or by the interruption of view, or the deprivation of
light and air and access to a building. (2) But damages resulting
from the operation of the road would not be admitted where no
land is taken or used and no real right affected ; — such as the
inconvenience which an adjoining proprietor might suffer from
the noise and smoke and vibration caused by the passing of
trains. These are inconveniences which aie necessarily conse-
quent upon the exercise of the powers conferred upon the railway
by Statute, and which individuals, upon whose lands or real
rights the railway company does not encroach, must suffer in
common with the general public, in a greater or less degree, as
their properly may be more or less distant from the railway. (3)
The provisions of the English Act are not so different from
ours, but that the decision of the Courts there would have great
weight in this country ; (4) and several decisions have been given
there which should be specially referred to in this connection.
In the case of Brand v. The Hammersmith Ry. Co., (5)
it was held by the House of Lords that a proprietor, no
(1) See cases cited in Note (i), p. 162.
(2) Kagle v. Charing Cross Ry. Co., L. R., 2 C. P., p. 638.
(3) Reg- v. Chester (Stcckpoit case), 33 L. J. Q. B. 251 ; Rex r. Pease,
4 B. & Ad. 30 ; Vaugan v. TaffVale Ry. Co., 5 H. & N. 679; Brand r.
Hammersmith Ry. Co., L. R., 4 H. L. 171 ; Lon. & Brighton Ry. Co. v.
Truman, II A. C. 45 ; MacWillie v. North Shore Ry. Co.,M. L. R., 5 Q. B.
per Cimon J. , at p. 130 ; Jones v. Stanstead Ry. Co., L. R., 4 P. C. App. 98;
Muir v. Caled. Ry. Co, 17 R. 48, ser. 1026; Atty. Genl. v. Metropolitan
Tramways Co. (C. A. 1893), 9 R. 598.
(4) N. S. Ry. Co. v. lion, 14 App. Cas. 612, supra p. 163 ; Wood v. A. &
N. W. Ry. Co., Q. R , 2 Q. B. at pp. 344 and 354 ; Paradis v- The Queen, I
Exch. Rep. per Taschereau J., at p. 193 ; Trimble v. Hill, 5 App. Cas. 342 ;
City Bank v. Barrow, 5 App. Cas. 664.
(5) L. R., 4 H. 1 . 171 ; supra, note 3.
EMINENT DOMAIN. 167
part of whose land was taken for the purposes of the railway,
could not recover statutory compensation for damage or annoy-
ance arising from vibration, and the smoke and noise of passing
trains, even though the value of his property had been actually
depreciated thereby ; — and that no statutory compensation
having been provided for such damages, there was no right of
action at common law to recover them. This principle, of course,
would only be applied where there was no fault or negligence
on the part 'of the company in the operation and construction of its
railway. As has already been pointed out, where the company
acts in the operation of its railway within the powers given to it by
the Legislature, and without negligence, they are not liable for any
loss or damage which they may occasion thereby to the general
public, unless statutory compensation is expressly provided, (i)
In the case of Jones v. The Stanstead Railway, (2) which was a
railway constructed under 14 and 15 Vic., cap. 51 [containing a
clause (sec. 4) corresponding to sec. 92 of the present Railway
Act], the plaintiff claimed damages for loss of tolls on a bridge
which he had constructed across the Richelieu River at St. Johns,
P.Q., consequent upon the building of a bridge by the railway
company a short distance from his own. There the Privy Coun-
cil held that the damage sought to be recovered was too remote,
not being " a necessary, patent, and obvious consequence of the
construction of the work." But in the case of Fion v. The North
Shore Railway Company, (3) already referred to, their Lordships
said that the case of Jones v. The Stanstead Ry. Co. might
well have been decided upon the same principle as Brand
v. The Hammersmith Ry. Co., viz., that this was a damage
resulting to a proprietor, no part of whose land was
taken, because of the use of the railway under the powers given
to the company by Parliament. In the case of The City of
Glasgow Ry. Co. v. Hunter, (4) where a part of a proprie-
tor's land was taken by the railway, and another section
of the road passed in rear of the same property, over a street or
lane, the House of Lords held that anticipated damage from the
(1) Supra p. 1 66.
(2) 4 P. C. Ap;>. 120 ; 8 Moore N. S. 312.
(3) 14 App. Cas. 612. (4) L. R., 2 S. C. App. 78.
i68 THE RAILWAY LAW OF CANADA.
noise and smoke of the trains passing over the section of the
railway in rear of the property would not appear to be a proper
subject of compensation under the Statute. But in a later case
of the Duke of Bite clench v. The Metropolitan Board of Works,
(i) Lord ( helmsford, who had sat also in the case of The City
of Glasgow Ry. Co. v. Hunttr, said that he saw no reason
why compensation might not be given for actual deterior-
ation in the value of property occasioned by the smoke, noise
and vibration of passing trains, where a portion of the land so
affected had been taken by the railway company ; but this was
not a case of the taking of land by a railway company, but of
the taking of land for the construction of the Thames embank-
ment, and a highway thereon, by the Metropolitan Board of
Works ; and his Lordship was not quite accurate in stating that
in both the cases of Brand v. The Hammersmith Ry.
Co. and The City of Glasgow Ry. Co. v. Hunter, no portion of
the proprietor's land had been taken ; for in the latter case,
according to the report, there was certainly a portion of the
land taken by the railway company, though the damage com-
plained of was not caused by the operation of the railway
upon the part taken, but upon a section of the same road
passing in rear of the property. However, in the case of
Essex v. 2 he Local Board of Acton, (2) the House of Lords, in
1889, definitively and finally decided that where part of land is
taken, the proprietor is entitled to compensation for depreciation
of the remaining land, caused by the use to which the land taken
is put ; although proprietors of adjoining lands, of which no por-
tion is taken, cannot recover. Though this was not the case of
a railway, and though a distinction may be drawn between a
railway and other works permitted by legislative authority, (3)
(i) L. R., 5 II. L. 418. (2) 14 App. C. 153.
(3) "The Railway Acts, treated as a well-known and recognized class of
legislation, were expressly and carefully distinguished from the permissive
character of the legislation which your Lordships were then construing
(referring to Metropolitan District Asylum v. Hill, 6 App. Cas. 193). Broadly
stated, the distinction taken amounted to this, that a smallpox hospital might
be built and maintained if it could be done without creating a nuisance,
whereas the Railway Acts were assumed to establish thj proposition that the
railway might be made and used whether a nuisance were created or not."
Per Lord Halsbury, L. C., in Lon. & Brighton Ry. Co. v. Truman, u App.
Cas. at p. 53 ; and see Shelfer v. City of London Electric Light Co., 12 R.g6.
EMINENT DOMAIN. 169
we may take it that it is now practically settled law, that a pro-
•prietor, a portion of whose land is taken by the railway, is en-
titled to compensation for actual deterioration in value of the
remainder of the property caused by the operation of the rail-
way, (i) This has now been decided by the Quebec Court of
appeals in Wood v. A. & N. W. Ry. Co. (2)
In that case, after a careful review of the jurisprudence in
England, it was held that it is now the settled jurisprudence of
the English courts that in cases where a portion of the pro-
prietor's land has actually been taken for railway purposes, so as
to compel or authorize the adoption of the statutory provisions
for determination of the amount of compensation, the jury are
authorized to take into consideration an estimation of damages
or depreciation resulting from the use of the railway as distin-
guished from its construction. And Hall J., in rendeiing the
judgment of the Court, after pointing out that the principles laid
down by both the old and modern French authors are in the
same sense, but that in France they have no general Railway Act
•corresponding with ours, and iheir method of determining com-
pensation before the "Conseils de Prefecture" differs so much
from our own that no precise authorities can be cited from that
jurisprudence, said that a comparison of the English and Can-
adian Acts would show no intended diminution or curtailment of
the liability of the railway company toward the land owner under
the Canadian Act as compared with the English one ; and that
in his opinion that liability is if anything enlarged under section
89 of our Act, which says, that for all damages caused by the
Act in the exercise of the powers conferred upon them, they shall
make full compensation, in the manner herein provided. (3)
The learned judge went on say that whatever may be the liability
of a railway company for damages to an adjoining proprietor,
none of whose land has been taken, there can be no doubt that
where land or real rights have been actually expropriated the
company is bound to compensate the proprietor, not only for the
land actually taken but for the direct damage to his remaining
(1) See Lon , Tilbury & South End Ry. Co. v. Gower's Walks Schools,
. R., 24Q.B.326.
(2) Que. R., 2 Q. B. 335.
(3) Que. R., 2 Q. B., at pp. 352-354.
1 70 THE RAILWAY LAW OF CANADA.
land, resulting either from construction and severance, or from
the use of the railway line and the operation of the traffic ser-
vice; and the learned judge went on to say : " This is but the
" adoption of the general principle that no one can use his own
" property or rights to the detriment of his neighbor, even if the
" exercise of his right be under the authority of an Act of Parlia-
" ment." (i) This last proposition is directly contrary to the
principles laid down by the English courts in the cases already
referred to, and now firmly established by the very recent cases
of The London v. Brighton Ry. Co. v. Trutnqn, (2) and The
Attorney General v. London Tramways Co., (3) to which refer-
ence has already been made. That is to say, if the learned
judge meant by this proposition that a railway company, in the
proper exercise of its statutory powers, could not, without being
liable in damages, use its property or rights to the detriment of a
neighboring proprietor, none of whose land or real rights had
been expropriated by the railway company. The principle seems
to be too firmly established in England to admit of doubt,
that where the railway company does not expropriate or make
use of the land of an adjoining proprietor, and does not interfere
with any real right appertaining to such property, the proprietor
cannot recover compensation, either under the statutes or the-
common law, for damages caused by the use or operation of the
railway, on the plain ground that what the legislature has
declared to be a right the courts cannot hold to be a wrong. (4)
i) Q. R., 2 Q. B. at p. 355. (2) 1 1 App. Cas. 53.
(3) (Court of Appeals 1893.) 9 R- 598.
(4) Per Blackburn J. in Hammersmith Ry. Co. f. Brand, L, R., 4 H. L.
at p. 197 ; and see Shelfer v. City of London Electric Light Co., 12 R., per
Lord Halsbury, at p. 108; and cases cited in note (3), p. 166.
The Railway Clauses Consolidation Act and the Land Clauses Act do
not contain any provisions under which a person whose land has not been-
taken for the purposes of a railway can recover statutory compensation
from the railway company in respect of damage or annoyance arising from
vibration occasioned (without negligence) by the passing of trains after the
railway is brought into use, even though the value of the property has been
actually depreciated thereby.
The right of action for such damages is taken away. Hammersmith, etc.
Ry. v. Brand, I . R., 4 H. L. 171.
Though compensation may not be granted to a person annoyed by the
smoke and vibration occasioned by trains passing along a railway constructed
under the authority of an Act of Parliament where no part of his land
had been taken, compensation may be given for deterioration in the value
EMINENT DOMAIN. 171
A careful examination of the various sections of our Railway
Act would lead one to the conclusion that no compensation is
intended to be given, for damages caused by the operation of the
railway, to the proprietor of a neighboring property, where no
part of such property has been expropriated or interfered with ;
but that such compensation would be due to a proprietor, even
though no part of his land was taken from him, if the company
made any use of any part of his land or interfered with any real
right appertaining thereto, such, for instance, as a right of way
or passage, (r)
As already pointed out, section 92 provides that the company
shall make compensation in the manner provided by the general
and the special Act to all parties interested for all damage
sustained by reason of the exercise of their powers ; but the
only manner provided for making such compensation is that con-
occasionecl in a similar manner, where a part of his land has been taken
for the construction of a work authorized by an Act.
In this question of compensation may be considered his particular and
individual use of that in which he had no proprietary right, such as the shore
of a tidal river, and where B was riparian proprietor, having a right to
the undisturbed flow of the river along the whole frontage of his property,
he was entitled to damages for being deprived of that right. Duke of
Buccleuch v. Metropolitan Board of Works, L. R., 5 H. L. 418.
Where several pieces of ground owned by the same person are, though
not adjoining, so near to each other and so situated that the possession and
control of each gives an enhanced value to all of them, they are lands held
together within the meaning of the Lands Clauses Consolidation Act 1845,
§§ 49 to 63, so that if one piece is compulsorily taken and converted to uses
which depreciate the value of the rest, the owner has a right to compensation
for the depreciation. Cowper Essex v. The Local Board for Acton, L. R.,
14 App. Cas. 153.
No claim can be made in respect of a damage for which the claimant
would not have had an action supposing the Railway Act had never been
passed. The damage must be done by the construction of the works, and
not afterwards when the works have been completed.
Held (reversing), that statutory compensation cannot be claimed by
reason of the noise and smoke of trains, whether part of the claimant's land
be taken or not, anticipated damage from the noise and smoke of trains does
not appear to be a proper subject of estimate of compensation under the
Railway Statutes.
Ihe Legislature having given the promoters no power to annoy the occu-
piers of neighboring property with smoke, an injury from this cause is not
the subject of compensation but a ground of action. A man may have a
right of action and a right of indictment where he cannot claim statutory
compensation. City of Glasgow Linion Ry. Co. v. Hunter, L. R., 2 Sc.
App. 78.
(i) Wood v. A. & N. W. Ry. Co., Q. R., 2 Q. B. 335.
i72 THE RAILWAY LAW OF CANADA.
tained in sections 136 to 172 inclusive, which sections are con-
tained in that portion of the Act headed " Lands and their
Valuation."
Section 144 provides for making compensation by agreement,
with the owners of the lands, which may suffer damage from the
taking of materials or the exercise of any of the powers granted
for the railway. But these lands, as has already been pointed
out, are to be shown upon the location plan and book of refer-
ence of Uie railway. Certainly it would not appear that the
company are bound to show on such plan any land which they
did not intend to take or use or interfere with in some way in
the construction of the road. Then the provisions with regard
to compulsory expropriation require that the party to be expro-
priated shall be served with a notice containing a description of
the lands to be taken, or " of the powers intended to be exer-
cised with regard to any lands, and describing the knds ; " (i)
and the compensation which the arbitrators are authorized to
grant is for the taking of the lands, or the damages caused by
the exercise of the company's powers with regard to the lands,
as described in this notice. As was said by Lord Chelmsford,
in Hammei smith Ry. Co. v. Brand: (2) " To say that the use
" of the railway after its construction is one of the powers
•«' vested in the company in regard to the lands, conveys to my
41 mind no intelligible meaning."
It can hardly be contended that the railway company could
be compelled to give notice to a proprietor of land, which was
not in any way touched or interfered with by the construction of
the railway, that they intended to exercise with regard to such
land the power of running and operating their railway in its
vicinity, and that they were willing to pay a certain sum as
compensation for the damage which might be caused to his land
by the opera* ion of the road, such, for instance, as those caused
by the smoke and noise of passing trains.
It would be impossible, in the first place, to accurately deter-
mine at what distance from the railway lands would be inju-
riously affected by such causes, and, in the second place, to
estimate the extent of the injury and the amount of compensa-
tion which should be given in any particular case.
i) Sec. i ;6. (2) L. R., 4. H. L. 171.
EMINENT DOMAIN. 173
The public generally, having property within sight, and
hearing of a railway, must suffer inconvenience, more or less in
degree but the same in kind, as they may happen to be more or
less distant from the railway, caused by the smoke and noise of
passing trains. But there does not seem to be provided by the
Act any manner in which such persons should be compensated.
And section 153 would seem to point in the same direction, inas-
much as it refers only to such inconvenience, loss or damage as
might be sustained by reason of a company taking possession of
or using lands.
A reference to section 101 would also seem to confirm this
view. There provision is made for compensation in the case of
the taking of Indian lands injuriously affected by the construc-
tion of the railway, the language of the section being as fol-
lows : " When any portion of such lands is taken possession of,
" used or occupied by any company, or when the sarre is in-
" juriously affected by the construction of any railway, compen-
" salion shall be made therefor as in other cases.''
It does not sef.m reasonable to suppose that the legisla-
ture intended to make a distinction, as to the compensation to be
given, between the case of Indian lands injuriously affected by
the railway and any other lands. And as it is provided by that
section that in the case of Indian lands compensation shall only
be made for lands taken 'and lands injuriously affected by the
" construction " of the railway, and that such compensation should
be made therefor " as in other cases," it would seem a fair in-
ference that in other cases compensation was intended to be
given only where the lands were injuriously affected by the con-
struction of the railway, as distinguished from its operation, that
is, where no land is actually taken ; unless it can be shown that
special piovision is made in other cases for lands injuriously
affected by the operation of the railway, and such would not
seem to be the case.
31- As to what kind of damage it is within the powers of the Nature of
arbitrators to allow in assessing the compensation apart from the damages that
value of the land taken, it may be said that as a general rule they ™ay-~|e. (t b
may take into consideration any direct, tangible and appreciable arbitrators,
injury or damage, particularly affecting the property in question
174 THE RAILWAY LAW OF CANADA.
which can reasonably be foreseen, (i) As instances, might be
mentioned, the injury caused to a farm, or such like property, by
the severance of one portion from another, as where a railway
crosses a farm property, separating the farm buildings from the
house or from some other part of the farm, increasing the diffi-
culties of access frcm one portion of the farm to another; and
the inconvenience caused by the necessity of crossing the railway
with carts, horses and cattle ; and the trouble and loss of time in
having to open and close the gates on each occasion. Again,
the manner in which a railway crosses a particular property
may cause loss, as, for instance, if it cuts through the property
in a diagonal line, instead of at right angles, thus cutting up
fields or lots, and rendering them unavailable or less available
for the purposes for which they were intended.
The danger arising from sudden emerging of trains from
a snowshed without warning, having the effect of frightening
horses, etc.. is a subject of compensation. (2) Also damage result-
ng from an increased risk of fire. (3) So held, where the plain-
tiffs were owners of a waterside property, upon which they oper-
ated two marine railways. A portion of this property was
expropriated for the right of way of a Government railway, the
latter being situated in such close proximity to the plaintiff's
works, that the works, as well as ships in course of repair upon
them, would be in danger of taking fire from locomotives when
the Government railway was put in operation. In consequence
of this increased risk from fire, it was shewn that plaintiffs would
have to pay higher rates of insurance upon their works than they
had hitherto paid, and that ships might be deterred from using
the marine railway. For these causes it was held compensation
was properly allowed. (4) But the possible damage to bush
land from greater exposure to winds and storms, and the greater
liability to injury by fire., by reason of the working of the railway,
(1) Wood v. A. &N. W. Ry. Co., Q. R., 2 Q. 6.335 ! Lawrence v. G.
N. W. Ry. Co., 16 Q. B. 643; and see Great Laxey Mining Co. v. Clagis,
4 App. Cas. 115.
(2) Vezina v. The Queen, 2 Exch. n. Confirmed in Supreme Court, 17
S. C. R. i.
(3) Straits of Canseau Marine Ry. Co. v. The Queen, 2 Ex. 113 ; and see
Stockport case, 33 L. J. Q. B. 251.
(4) Straits of Canseau Marine Ry. Co. v. The Queen, 2 Ex. 113.
EMINENT DOMAIN. 175
are contingencies too remote to be considered in estimating the
amount of compensation where, there are no buildings to be
endangered, (i) And danger to persons and animals should not
be included. (2)
In assessing damages, regard should be had to the prospec-
tive capabilities of the property arising from its situation and
character. (3) But while the remote probability that land
would become available for building purposes upon the extension
of the limits of an adjoining town may add something to the
value which the property would otherwise have had, compensation
should not be based upon any supposed value of the land for
building purposes at the time of the expropriation. (4) But held
in England, that where agricultural land, which might have
become valuable for building, is severed, so as to be useless for
building, this depreciation may be taken into consideration. (5)
Where lands possess a certain value for building purposes at the
time of the expropriation, but that value cannot be ascertained
from the actual sale of any lot or part thereof, the sales of similar
and similarly situated properties constitute the best test of such
value. (6)
32. The value of the land to be estimated is the value it has Value of
in the hands of the owner, subject to such restrictions as there lan.d» how
may exist upon its use, and not the value it will have in the hands6
of the company freed from all restrictions. (7) And this value
must be the value at the time of the expropriation. (8) Where
claimant sought to recover damages in respect of a portion of his
farm as a gravel pit, but failed to show that it had a value quoad
(1) In re Arbitration between Ont. & Que. Ry. Co. and Gen. Taylor, 6 O.
R. 338.
(2) Re Scott v. Railway Commisrs., 6 Man. 194 ; A. & N. W. Ry. Co. v.
Descarie, 21 R. I.. 194.
(3) Paint v. The Queen, 2 Ex. R. 149. Confirmed by Supreme Court, 18 S.
C. R. 718 ; but see Re Nicholson v. Ry. Commrs., 7 Man. 400.
(4) Kearney v. The Queen, 2 Ex. 21. Supreme Court, 3Oth April, 1889.
Cassels Dig. 313.
(5) Reg. v. Brown, L. R., 2 Q-. B. 630.
(6) Falconer v. The Queen, 2 Ex. R. 82.
(7) Stibbing v. Metropolitan Ry. Co., L. R., 6 Q. B. 37 ; Paint v.
The Queen, 2 Ex. R. 149.
(8) Vezina v. The Queen, 2 Ex. R. n ; and see sec. 145 Ry. Act.
176 THE RAILWAY LAW OF CANADA.
hoc at the time of the taking, the Court declined to assess its
value otheiwise than as farm land, (i)
Where certain land remaining to the owner was not appre-
ciably affected in respect of the value it had to him for the pur-
poses of occupation, the damages were ascertained and assessed
in respect of its depreciation in market value. (2)
Although the claimant has the right to sell his property,
and should, therefore, be indemnified in respect of any loss which
in consequence of the expropriation he nvghtmake on such sale,,
he is not bound to sell, and may reasonably prefer to keep his
property for the purposes of his business ; and in that case should
be indemnified for any depreciation in its value to him for the
purposes for which he has been accustomed, and still desires, to-
use it. (3) The nature of the title to the land is also a criterion
of its value. (4)
Where the claimant, for the purpose of effecting a settlement
without litigation, had offered to settle his claim for a sum
very much below that demanded in his pleading?, the Court, while
declining to limit the damages to the amount of such offer, relied
upon it as a sufficient ground for not adopting the extravagant
estimates made by claimant's witnesse?. (5)
Where a wharf in course of construction, and materials to
be used in completing it, had been taken by the Crown, the
Court allowed the claimants a sum representing the value of the
wharf as it stood, together with that of the materials ; and to this
amount added a reasonable sum for the superintendence of the
work by the builder, who was one of the claimants, for the use
of the money advanced, and for the risks incurred by him during
the construction thereof, — in other w.ords, a sum to cover a fair
profit to the builder on the works so far as completed. (6)
In assessing damages where land has been expropriated, the
unity of the estate must be considered ; and if by the severance
of one of several lots, so situated that the possession and control
of each give an enhanced value to them all, the remainder is
(I) Ibid. (2) Ibid.
(3) Reg- v- Carrier, 2 Ex. R. 36. (4) Ibid.
(5) Falconer r. The Queen, 2 Ex. R. 82 ; and see Cardinal v. La Cie. de
Ch. de Fer de Beauharnois, 20 R. L. 648.
(6) Samson v. The Queen, 2 Ex. R. 94.
EMINENT DOMAIN. 177
depreciated in value, such depreciation is a substantive ground
for compensation, (t)
It was said by Taschereau J. in Paradis v. 1 he Queen, (2) that
it is not merely the depreciation in the actual market value of the
land that a claimant has to be indemnified for, it is the depre-
ciation in such value as it had to him that should be the basis of
compensation. Also, that the valuation of a property appearing
upon the municipal assessment roll does not constitute a test of
the actual value upon which compensation should be based,
where such valuation is made arbitrarily and without consider-
ation of the trade carried on upon "the property or the profits
derivable therefrom.
In a case of expropriation, the claimant is not obliged to prove
by costly tests or experiments the mineral contents of his land.
(3) Where, however, such tests or experiments have not been
resorted to, the Court or jury must find the facts as best it can
from the indications and probabilities as disclosed by the evi-
dence. (4)
(1) Paint v. The Queen, 2 Ex. R. 149.
(2) I Ex. R. 191.
(3) Brown v. The Commissioners for Railways, 15 App. Cas. 240.
(4) Regina v. McCurdy, 2 Ex. R. 211. "No company shall, without
the authority of the Railway Committee, locate the line of its proposed rail-
way, or any branch thereof, so as to obstruct or interfere with or injuriously
affect the working of, or the access or adit to, any mine then open or for
opening which preparations are, at the time of such location, being lawfully
and openly made." Sec. 119.
The "mines of coal, ironstone and other minerals," which sec. 77 of the
Railway Clauses Act 1845 except out of the conveyance of the railway com-
pany, and the "mines and minerals " under the railway, or within the specified
distance which sec. 78 empowers the owner to give notice of his intention to
work, include not only beds and seams of minerals got by underground working,
but also such as can only be worked and according to the custom of the district
would be properly worked by open or surface operations.
So Held, by Lords Herschell and Watson (Lord MacNaughton dissenting, and
retaining the opinion expressed in Lord Provost of Glasgow v. Farie, 13
App. Cas. 657^. M dland Ry. Co. et al. v. Rev. Sir F. L. Robinson, 15 App.
Cas. 19.
That to justify an owner giving such a notice, it is not necessary that he
should intend to work the minerals himself, but there must be a real and botta
fide desire to work either by himself or by his lessees or licensees. Ibid.
Limestone is a mineral within the meaning of the above sections . Ibid.
This case raised a question concerning land taken— with portions of mineral
under it — by the railway company as to the owner's right to compensation in
respect of his inability to get the coal under or near the railway. Lord Gerard
was the owner of land near Wigan — having coal and other minerals under it
through which the railway ran. The company gave notice lo take not only
12
1 78 THE RAILWAY LAW OF CANADA.
Finally, in assessing the value of lands taken or injuriously
affected by a public work, the owner should be allowed a liberal
not a bare indemnity.
Access to 33. The owner of land fronting upon a highway, whether it
landways and jg a jan(jway or a waterway, has a right of access to the highway,
and is entitled to compensation if his access is cut off. (i) So a
person whose land abuts on the foreshore is entitled to corn-
surface land but also the minerals under it, except seams of coal which ran
under parts of the land, and were not then worked. Lord Gerard claimed under
these notices to be entitled to receive present compensation in consequence o f
being bound in law to leave unworked large quantities of coal, either subjacent
or adjacent, in order to afford necessary support to the other strata, and
because it was impossible to work it without taking away part of the land and
minerals sold to the company. The effect of this claim would have been to
make the company pay at once, not only the price of the land taken, but also
for all the subjacent and adjacent coal, and the ground of the claim was that
the company were not only taking tlie land, but also the minerals under it.
It was contended on behalf of Lord Gerard that the railway running through
the land, and the company having taken not only the land under the railway,
but the minerals under the land (except the coal), the owner was unable to
work his coal on either side up to or near the railway, because so working
would interfere with the minerals under the railway. The matter had gone to
arbitration under the Lands Clauses Act 1845, and evidence had been received
by the arbitrator to support the claims thus set up by Lord Gerard. The
company had thereupon obtained a rule nisi, allowing them to revoke their
submission, on the ground that these claims were not maintainable, and that
though, if Lord Gerard sustained any injury or increased expense in working
his coa! in consequence of the railway, he might set up a future claim for
compensation, there was no ground for entertaining the claims now to enhance
the price to be paid for the land and minerals. The court thought the conten-
tion of Lord Gerard was not well founded, and that his rights were governed
by section 77 and the following sections in the Railway Clauses Act 1845.
Those sections applied not only to cases where no mines or minerals were
taken, but in every case in which mines or minerals were taken, and they were
applicable to a case where a company had purchased with the land certain
subjacent minerals, but had left others to the land owner. There was nothing
in the Act to confine it to cases of the purchase of surface land only. The
claims not being, therefore, maintainable, and the evidence offered not being
admissible, the rule giving the railway company leave to revoke the submis-
sion would be made absolute with costs, the company undertaking not to revoke
unless the arbitrator continued to receive the evidence objected to. Lord
Gerard v. The London & North Western Railway Co., Times Law Rep.,
Vol. X, p. 657 ; confirmed in appeal, ibid. Vol. XI , p. 170.
(i) Lyon v. Fishmongers Co., I App. Cas. 662 ; Chamberlain v. West
End of London & Crystal Palace Ry. Co., 31 L. J. Q. B. 201, 32 L. J.
Q. B. 173 ; Caledonian Ry. Co. v. Walker's Trustees, 7 App. Cas. 259 ;
Duke of Buccleugh v. Met. Board of Works, 5 H. L. 418; Pion v. North
Shore Ry. Co., 14 App. Cas. 612 ; [Corp. of Parkdale zr. West, 12 App.
Cas. 602.
EMINENT DOMAIN. 179
pensation if his access to the sea or a navigable river is cut
off. (i)
And in the same way the right to compensation arises, if by
lowering or raising the highway the access is impeded, or
additional fences or earthworks become necessary ; (2) also the
construction of a railway along the sidewalk contiguous to lands
whereby access to such lands is interfered with, and the frontage
of the property destroyed for the uses for which it is held. (3)
Where the right, in respect of which the owner claims com-
pensation, is a public right, common to himself and the public
generally, the following rule may be laid down to determine the
right to compensation. Where the right is entirely taken away,
or so interfered with as to reduce or depreciate the market value
of the property apart from the uses to which any particular owner
may put the property, there is a right to compensation. (4)
Thus, for instance, if the access to a house is cut off by the
blocking up of a road giving access to the house, this is a clear
injury to the house as a property. (5) So where a house fronting
on a highway is depreciated in value by the narrowing of the
road, a right to compensation arises. (6)
But where, by the construction of the railway, the use of a street
as a highway is merely rendered less convenient, with consequent
personal inconvenience, or damage to trade, of persons living on
the street, the owner or occupants of property abutting on the
street are not entitled to compensation ; on the ground that the
(1) A riparian proprietor on a navigable river is entitled to damages
against a railway company, for any obstruction to his rights of acces et sor-
tie ; and such obstruction without Parliamentary authority is an actionable
wrong. Pion v. N. S. Ry. Co., 14 A pp. Gas. 612 followed ; Bigaouette v.
North Shore Ry. Co., 17 S. C. R. 363 ; and see Bowen v. Can. Southern Ry
Co., 14 O. A. R. i.
(2) Regina v. St. Luke's, L. R., 7 Q. B. 148 ; Moore v. Great S & W
Ry. Co., 10 Ir. C. L. 46 ; Twohey v. G. S. & W. Ry. Co., lo Ir. C. L. 98 j
Reg. v. Eastern Counties Ry. Co., 2 Q. B. 347.
(3) Reg. v. Barry, 2 Ex. 333 ; Reg. v. Malcolm, 2 Ex. 357.
(4) Metropolitan Board of Works v. McCarthy, L. R., 7 H. L. 243 ; Wad-
ham v. N. E. Ry, Co. ( 14 Q. B. D. 747.
t 16 ib. 257.
(5) Caledonian Ry. Co. v. Walker's Trustees, 7 App. Cas. 259.
(6) Beckett v. Midland Ry. Co., L. R., 3 C. P. 82 ; Metropolitan Board
of Works v. McCarthy, L. R., 7 H. L. 243 ; Wood v. Stourbridge Ry. Co.
16 C. B., N. S., 222.
i8o THE RAILWAY LAW OF CANADA.
inconvenience is one which they suffer in common with, though
to a greater degree than, the public generally, (r)
A temporary obstruction of a highway, for the purpose of a
public work, does not entitle the owner of property on the high-
way to' compensation. (2)
34. The law of Quebec allows to the owners of houses adjoining
streets rights over them, which, if not servitudes, are in the nature
of servitudes. Such are the rights d'acces et de sortie des rues
ou dugouts.
(i) Brodeur i-. Corpn. of Roxton Falls, II R. L. 447.
R. was occupier of a public house situated by the side of a public foot-
way. A company obtained powers under certain Acts of Parliament (with
which the provisions of the Lands Clauses Acts and Railway Clauses Acts
were declared to be incorporated) to make a railway.
The company obstructed streets leading to this foot -way so as to make
the access to the public house inconvenient. The obstructions were not
permanent, and after some time the streets were restored to their original
condition.
It was found by the jury that there were no structural damages to the
premises, but that R. had sustained damage in respect of the interruption of
his business.
Held (diss. Lord Westbury), that R. was not entitled under the 68th
section of the Lands Clauses Act, nor the 6th or the i6th Sections of the
Railway Clauses Act, to receive compensation for injury to his trade conse-
quent upon these obstructions.
Ricket v. The Metropolitan Ry. Co., L. R., 2 H. L. 175.
Per Lord Westbury: — At p. 203. " I entirely concur with the doctrine that
compensation cannot be claimed by an individual for damage which is sus-
tained in common by all the subjects of the realm. Thus, if a public highway
be diverted, or crossed on the level, by a railway, the inconveniences of having
to wait whilst trains pass is common to all the public ; and the benefit which
it is considered results to the public from the railway is the only compensation.
Persons dwelling in the neighborhood may sustain this inconvenience more
frequently than the rest of the public ; but if the inconvenience is to be re-
garded as compensated by the public convenience, it cannot be converted into
a ground of compensation by reason of certain persons having to sustain the
inconvenience more frequently than the rest of their fellow-subjects. "J
In order to found a claim to compensation under the 68th section of the
Lands Clauses Consolidation Act 1845, f°r an interest in land, " injuriously
affected," there must be an injury and damage not temporary but permanent,
peculiarly affecting the house or land itself in which the person claiming
compensation has an interest. A mere personal inconvenience, obstruction
or damage to a man's trade or the good will of his business will not be suffi-
cient, although any one of them might, but for Act of Parliament which
authorizes the doing of the thing which causes the injury, have been the
subject of an action against the person occasioning it. Chamberlain r. The
West of London Ry. Co. (2 B. & S. 605-617), and Beckett v. The Midland
Ry. Co. (L. R., 3 C. P. 82), approved. Ricket v. The Metropolitan Ry.
Co. (L. R., 2 H. L. 175), explained and affirmed. Metropolitan Board of
Works v. McCarthy, L. R., 7 H. L. 243 ; and see Sanche v. C. P. R. Co,
16 R. L. 296.
(2) Herring v. Metropolitan Board of Woiks, 34 L/. J. M. C. 224.
EMINENT DOMAIN. . 181
There is a clear distinction in the law of Quebec between
rights of immediate access from a man's property to a highway,
and the power to complain of a mere obstruction in it. The
French law recognizes Adroit cfacces et de sortie" as rights
belonging to a house in a street. It is evident that this right of
access is different from the right of passage which the owner has
in common with the public.
The right of access to a house is of course essential to its
enjoyment; and if by reason of alterations in the stieet the
owner cannot get into or out of it, or is seriously obstructed in
doing so, he can recover indemnity for the damage he sustains,
(i) But the stopping of a street at one of its ends only does not
produce these consequences. (2)
In Quebec also, a distinction is made between direct damage,
which gives the sufferer a right to compensation, and indirect
damage which does not. (3)
There may be droit d'acces (t de sortie to and from a river or
stream belonging to riparian land, which, if interfered with,
would at once give the proprietor a right of action. But this
right appears to be confined to what it is expressed to be, the
power of getting from the waierway to and upon the land (and
the converse) in a free and uninterrupted manner. When this
right of access is not interfered with, although the navigation of
the ri^er be somewhat obstructed, the riparian proprietor is not
entitled to compensation, unless actual and special damages
peculiar to himself, and different in kind from those suffered by
the public generally, are proved. (4)
A distinction is thus drawn between the right of access from
the river to a riparian frontage, and the right of navigation when
upon it. When this access is not interrupted, and the waterway
of the river is open to the riparian land, the question arises
whether the right of action of the riparian proprietor, for a distant
obstruction in the river, can be based on higher or other ground
than would be that of any one of the public using the river and
(1) Morrison v. Mayor of Montreal, 4 L. N. 25 (Q. R. Que. 1880).
(2) Mayor of Montreal v. Drummor.d, I App. Cas. 406.
(3) Ibid.
(4) Bell v. Corpn. of the City of Quebec, 5 App. Cas. 97-98 ; and vide Bro-
deur t-. Corpn. of Roxton Falls, 11 R. L. 447.
182 THE RAILWAY LAW OF CANADA.
sustaining special damage. The right of access to the waterway
from riparian land is a private right which the owner of such
land enjoys qua owner; this right is analogous to the droit
d'acces et de sortie recognized by the law of Quebec. If the
English law attributes larger rights than these to riparian pro-
prietors on navigable rivers, it goes further in this direction than
the law of Quebec. But it would not seem to.
Thus, where the construction of a bridge does not interfere
with the riparian proprietor's right of access to the river, it has
been held that the latter has no right to compensation, excepting
he can prove actual and special damages peculiar to himself and
not suffered by him in common with the rest of the public, and
that the Quebec and the English law in this respect is the same,
(i) Whether an obstruction amounts to an interference with a
riparian proprietor's access to his frontage, which is a private
right by English as by Quebec law, is a question of fact to be
determined by the circumstances of each particular case. (2)
According to Quebec law, the beds of navigable and floatable
rivers are the property of the Crown. (3) The test as to whether
a river is navigable or floatable is its possible use for transport
in some practical and profitable manner, (4) which would in
Quebec include the floating of logs and timber.
When the right of navigation on a river is connected with an
exclusive access to and from a particular wharf, it assumes a
different character. It ceases to be a right held in common with
the rest of the public, for other members of the public have no
access to or from the river at the particular place, and it becomes
a form of enjoyment of the land and of the river in connection
with the land, the disturbance of which may be vindicated in dam-
ages by an action, or restrained by an injunction. (5) It was held
in Miner v. Gilmoiir (6) that the rights of riparian proprietors in
non-navigable and non-tidal water-course are the same under the
English as under the Lower Canada law ; and that by the general
law applicable to running streams, every riparian proprietor has a
(1) Bell v. Corpn. of the City of Quebec, 5 App. Cas. 85.
(2) Ibid. 85. (3) C. C. Ait. 400.
(4) Bell ?'. Corpn, of Quebec, 5 App. Cas. 85.
(5) The N. S. Ry. Co. r. Pion, 14 App. Cas. 619.
CM T2 Moore. P.C.. TII (iScSK
(6) 12 Moore, P.C., 131
EMINENT DOMAIN. 183
right to what may be called the ordinary use of the water flowing
past his land, — for instance, to the reasonable use of the water for
his domestic purposes, and for his cattle. But, further, he has a
right to the use of it for any purpose, or what may be deemed the
extraordinary use of it, provided he does not interfere thereby with
the rights of other proprietors either above or below him. This
general principle is, in England, applicable to navigable and tidal
rivers saving the right of the public to un'obstructed navigation. ( i )
The only ground of distinction between a non-navigable river
and a navigable or tidal river, forming at high water the boundary
of riparian land, is that in the case of a non-navigable river the
riparian owner is proprietor of the bed of a river ad medium filum
aqua, whereas, in the case of a navigable river, it belongs to the
Crown. The right of a riparian owner to the use of a stream
does not depend on the use of the soil of the stream.
The right to the enjoyment of a natural stream of water on
the surface belongs, ex jure natures, to the proprietor of the ad-
joining lands, as a natural incident to the right to the soil itself,
and he is entitled to the benefit of it, as he is to all the other
natural advantages belonging to the land of which he is the
owner. He has the right to have it come to him in its natural
state, in flow, quantity, and quality; and to go from him without
obstruction upon the same principle that he is entitled to the
support of his neighbor's soil for his own in its natural state. (2)
It is necessary for the existence of a riparian right that the
land should be in contact with the flow of the stream, but it is
sufficient that this contact should exist daily, in the ordinary and
regular course of nature, though it may not continue during the
whole of any day. (3)
Such land should not be valued as if it had no river frontage,
or as if the owner had no riparian rights.
The construction of its road by a railway company upon the
foreshore of a navigable and tidal river, thereby obstructing by
means of an embankment extending along the entire length of
plaintiffs land his access to the water, gives him a right of action,
(1) Lyon v. Fishmongers Co., I App. Cas. 683.
(2) Chassmore v. Richards, 7 H. L. Cas. 349.
(3) Ibid, and Miner v. Gilmour, 12 Moore, P.C., 131.
1 84
THE RAILWAY LAW OF CANADA.
Loss of
business.
Injury to
business.
Loss of
privacy .
Injury to
franchises,
ferries.
even though the company leaves one opening in the embankment
and another opening just outside the plaintiff's property, (i)
35. The owner of land is entitled to put it to what uses he
pleases; no right of compensation therefore arises if a railway
company, having purchased land, pulls down the houses upon it,
and thereby destroys the custom of a neighboring shop. (2)
The owner of a house may pull it down and rebuild it, or rebuild
the common walls, if he is careful to, do no avoidable injury to
the adjoining house, and the adjoining owner has no claim to
compensation for noise, discomfort, loss of trade, etc., provided the
work be done with care and skill and according to the rules of
art. (3)
36. If injury is caused by the railway not to the properly
as such but merely to the property as used for a particular pur-
pose, such as a business, or, in other words, to the business
carried on upon the property, no compensation can be recov-
ered. (4)
37. A landowner has no right of action because buildings on
neighboring lands oveilook his land, and thereby interfere with
its privacy ; (5) provided that they are built at such distance
from his land as the law or custom of the locality requires. (6)
38. It is clear that an actionable injury to an incorporeal
hereditament, such as a franchise, is a subject matter of com-
pensation. Thus the obstruction of access to a ferry appurte-
nant to the claimant's house is matter for compensation. (7)
A ferry is the exclusive right of taking passengers across a
stream by means of boats. It is no infringement of a ferry to
(1) North Shore Ry. r. Pion, 14 App. Cas. 612 ; Bigaouette v. North
Shore Ry. Co., 17 S. C. R. 363.
(2) Regina v. London Dock Co., 5 A. & E. 163 ; Regina r . Vaugan, L. R.,
4 Q. B. 190; Faradis v. The Queen, I Ex. R. 191.
(3) Regina v. Hungerford Market, I A. & E. 668, 676 ; Feck v. Harris, 12
L. C. R. 355 ; Lyman v. Peck, 12 L. C. R. 368 ; Moynaugh v. Angus, Q. R.
S. C. not yel reported.
(4) Rex v. l.on. Dock Co., 5 A. & E. 165 ; Rickett v. Metropolitan
Ry. Co., L. R., 2 H. L. 175 ; Herring v. Metropolitan Board of Works, 34
L. J. M. C. 224; Wadham z ,. N. E. Ry. Co., 14 Q. B. D. 747. .
(5) Re Penny, 7 E. & B. 660 ; Sirey (V.) 80, 2, 308.
(6) C. C. 534-538.
(7) Regina v. G. N. W. Ry. Co., 14 Q. B. 25.
EMINENT DOMAIN. 185
provide fresh means of passage for a new kind of traffic. Thus
a railway bridge, though in the line of a ferry, inasmuch as it
does not connect the highways connected by the ferry, but pro-
vides means of transit for the traffic brought along the railway,
is no infringement of the ferry. And if the use of the railway
bridge is allowed to foot passengers free of toll, to enable them
to get to and from the station of the company, the case is within
the same principle, (i)
39. Any interference with an easement or servitude appurte- injury to
nant to land entitles the owner to compensation. This has easements,
been decided with reference to a private right of way and to an
easement of light (2) and to a subway. (3) And such inter-
ference would seem to open the door to compensation for all
damages to the land to which the servitude or easement is
attached, it being looked upon as being an expropriation of a
.real right. (4)
40. In addition to the grounds of damage already specified, injury to
the arbitrators have the right to take into consideration the value trees-
of trees upon the property taken or those which may be dam-
aged by the exercise of the powers of the company. Fruit
trees, or trees valuable for other reasons, may be valued, and
their value taken into consideration by the arbitrators as an
element in arriving at the compensation to be paid to the pro-
prietor. It has so been held by the Courts of the Province of
Quebec in several cases arising under the Railway Acts, (5) but
it may be strongly doubted whether the arbitrators have the
right to give the value of the trees, in addition to the full value
of the land, for in most cases the full value of the land would
include the trees growing upon it. For instance, applying the
(1) Hopkins v. G N. \V. Ry. Co., L. R., 2 Q. B. D. 224, over-ruling
Reg. v. Cambrian Ry. Co., L. R., 6 Q. B. 422; and see Jones v. Stanstead
Ry. Co., 4 P. C. App. p. 98.
(2) Glover v. Noith Staffordshire Ry. Co., 16 Q. B. 912 ; Eagle v.
Charing Cross Ry. Co , L. R., 2 C. P. 638 ; Clarke v. London School
Board, 9 Ch. 120 ; Ford v. Metropolitan Ry. Co., 17 Q. B. D. 12 ; Regina
v. Poulter, 56 L. J. Q. B. 581 ; Wood v. A. & N. W. Ry. Co., Que. R.,
2 Q. B. 335.
(3) Wells v. The Northern Ry. Co., 14 O R. 594.
(4) Wood v. A. & N. W. Ry. Co., Que. R., 2 Q. B 335.
(5) See Evans v. Att. & N. West Ry. Co.'s M. L. R., 6 S. C. 493.
1 86 THE RAILWAY LAW OF CANADA.
rule which is now recognized as the proper one, that the amoiint
of compensation should be equivalent to the difference between
the value of the whole property at the date of the deposit of the
plan and the value of the portion remaining from that taken by
the Railway Company, (i) naturally the value of the whole
would be governed by the state of cultivation in which it was at
that time, including the value of the trees upon it. In other
words, the value of the property may or may not be increased
by the trees growing upon it ; and if the above mentioned rule
were adopted by the arbitrators, they would consider the addi-
tional value of the trees growing upon the property, and their
value would be included in the valuation put upon the land. It
may be said, in general terms, that the value of the land ought
to include the value of the trees growing upon it, and therefore
the arbitrators ought to include that value in arriving at their
award, and it would be paying the proprietor twice to give him
the value of the land and an additional sum for the value of
each particular tree growing thereon.
It would be different in the case of crops growing upon the
property which the construction of the railway would destroy
before they could be reaped ; in such a case the proprietor
would be entitled to receive, in addition to the actual value of
the land, the price of the crop which he would have been enabled
to realize if the railway had not destroyed the crop. It has
also been held by the Court of Appeals in Quebec, that the arbi-
trators may allow compensation for loss of land on each side of
railway rendered unfit for cultivation. (2)
Compensation 41. The instances given are sufficient to show the general
a bar to all grounds upon which compensation by the arbitrators should be
im' based, and it may be laid down that once this compensation
has been assessed by the arbitrators and accepted by the pro-
(1) Supra p. 160. Compensation by a railway company is most readily and
fairly ascertained by determining the value ot the land without the railway,
and of the portion remaining after the railway is built. The difference is the
compensation to which the party is entitled. Troy & Boston Ry. Co. v.
Lee, 13 Barb. 169, 171, in re F Street, 17 Wend. 649 ; Canal Co. v. Archer,
9 Gill & J. 480; Parks v. City of Boston, 15 Pick 198 ; Somerville Ry.
Co. v. Doughty, 2 Znb 495.
(2) Matlutu i'. Q M. & O. Ry. Co., 15 Q L. R. 300. Confirmed in
Supreme Court, 19 S. C. R. 426.
EMINENT DOMAIN. 187
prietor, he has no further claim against the company by action
for any damages which may rise from the exeicise of the com-
pany's powers, provided that they are exeicised in a careful and
proper manner, and without negligence, even though special
damages may result from the exercise of these powers which
were not considered by the arbitrators. So long as it was with-
in the jurisdiction of the arbitrators to assess such damages, the
proprietor would be precluded from afterwards taking an action
to recover damages which could be reasonably foreseen as
resulting from a proper and careful exercise of the powers of the
railway. In other words, the arbitrators are presumed to have
awarded compensation to the proprietor for all damage they
could reasonably foresee as the possible result of the lawful
and proper execution of the works by the railway company,
under the powers conferred upon them by Parliament, and the
proprietor is presumed to have placed before the arbitrators
all the possible grounds of damage which he might suffer by
such exercise of the company's powers ; and he would be
estopped and precluded from afterwards taking an action to-
recover further damages resulting from such exercise of their
powers beyond those included in the award, (i)
As it was said by Baron Cleasby in Buccleuch v. Met. Bd. of
Works : " The award cannot be explained, or varied, or extend-
" ed, by extrinsic evidence of the intention of the person making
" it ; " (2) and by Lord Blackburn in the Exchequer Chamber :
"Though the judgment of a limited tribunal is not final on a
" question of jurisdiction, yet if that tribunal has jurisd:ction,,
" the decision of a point within its jurisdiction, whether on the
(1) Duke of Buccleuch v. Metropolitan Board of Works, L. R., 5 H. L,
418; Crofts L. & N. W. Ry. Co., 32 L. J. Q. B. 113 3 B. & 8.436 ;
Todd v. Met. Dist. Ry.Co., 19 W. R. 720; Dar.ey Main Colliery Co. v.
Mitchell, II App. Cas. 127 ; and see per Erie, C. J.,in Chamberlain v. West
of London & Crystal Palace Ry. Co., 2 B. & S. 617-638 ; and also Knapp
v. G. W. R. Co., 6U. C. C. P. 187; Vanhornz>. G.T.R. Co., gU.C.C.P.
264 ; Lesperance v G. W. R. Co., 14 U. C. Q. B. 187 ; Wallace v. G.T.R.
Co., 16 U. C. Q. B. 551; Utter v. G. W. R. Co., 17 U. C. Q. B. 392;
McGillivray v. G. W. R. Co., 25 U. C. Q. B. 69 ; Crewson v. G. T. R. Co.,
27 U. C. Q. B. 68 ; Nichol v. Can. Southern Ry. Co., 40 U C. Q . B. 583 ;
Tolton v. C. P. R. Co , 22 O. R 204 ; and Lan. & York Ry. Co. v. Evans,.
15 Beav. 322 ; Lawrence v. Great Northern Ry. Co., 16 Q. B. 643.
(2) L. R.,sH. L. 434.
i88 THE RAILWAY LAW OF CANADA.
" law or the fact, cannot be received except in a Court having
" jurisdiction to sit as a Court of Appeal from that decision
" Now, in cases where an award is good on the face of it, but
" the arbitrator has made a mistake either of law or fact, if that
" mistake had been as to a matter within the arbitrator's author-
" ity, then, inasmuch as there is no Court of Appeal from the
" arbitrator, the mistake cannot be remedied, nor can the Court,
" even in the exercise of its equitable jurisdiction, set aside the
•" award, unless it can be shewn that there was misconduct or
" some other equitable ground of interference. But if the mis-
" take has been as to the extent or nature of the arbitrator's
" authority, leading him to exceed it, then, ... the award may be
" impeached as being made without jurisdiction." (i)
Under our Act the party would have an appeal to the Courts
upon any question of law or fact, such appeal to be decided
upon the evidence taken before the arbitrators. (2)
To summarize, it may be said that, apart from this right of
appeal, where a proprietor's lands have been taken under the
authority of the Act, and his damages have been assessed by
the arbitrators, he cannot afterwards recover by action any
damages caused by the exercise of the company's powers which
it was within the jurisdiction of the arbitrators to give compen-
sation for, and which they could reasonably foresee, unless they
arise from a negligent or improper exercise of those powers,
inasmuch as such damages are deemed to be covered by the
award. (3)
In a recent case, however, (4) these principles were departed
from by the Court of Appeals of Quebec, where it was held that
a proprietor might recover, by action, interest on the amount of
an award from the date of the taking possession of his land by
the railway company, though it was admitted by the Court that the
awarding of such interest was within the jurisdiction of the arbi-
trators. In face of the decision of the highest Court in England,
(i) L. R., 5 Ex. at pp. 231-232.
O) Sec. 161.
(3) Ubi supra p. 186, and as to statutory remedy being exclusive and not
merely cumulative, see East & West India Dock & Birmingham Junction
Ry. Co. v Gattke, 3 Mac. & Gor. 155, 3 Eng. L. & Eq. 59 ; Watkins v.
~Great Northern Ry. Co., 16 Q. B. 961, 6 Eng. L. & Eq. 179.
(4) A. & N. W. Ry. Co. v. Learning, Que. R., 3 Q. B. 165.
EMINENT DOMAIN. 189.
it is difficult to see how this decision can be supported in prin-
ciple. The awarding of interest upon the value of the land, as com-
pensation to the proprietor for the damage resulting to him from
his being deprived of the use of it from the time the company
took possession, was clearly within the jurisdiction of the arbi-
trators, and the damage could not only be foreseen, but was
patent. While the proprietor might upon appeal under section
161 have had the award increased by the amount of the interest,
representing the loss of enjoyment of his land, it would seem
clear, upon the principle laid down in the cases cited, that he
could not maintain an action to recover it in excess of the
amount of the award.
4:2. The form in which the award is to be made is not specified Form of
in the Act, except in so far that it is required by section i6i,award-
that it shall stale clearly the sum awarded, and the lands or
other property, right or thing for which such sum is to be the
compensation ;
43. But before considering the form of the award and tie Desistment
essentials to its validity and on what grounds it may b.- from notice,
attacked, it may be well to point out that the company have the
power of desisting from and abandoning the notice of ex-
propriation, and all proceedings had under it in certain specified
cases under section 158 of the Act. It is there provided that in
any case where the notice improperly describes the land or mate-
rials intended lo be taken, or where the Company decides not to
take the land or materials mentioned in the notice, it may abandon
the notice and all proceedings thereunder ; but in such case the
company is liable to the proprietor notified for all damages or
costs incurred by him in consequence of the notice and abandon-
ment. After such desistment the company may give a new notice,
to the same proprietor or any other proprietor, for other lands or
material, or for the same lands or materials differently described.
Under the conditions of the previously existing Act, (i) the cases
in which such abandonment might be made were not specified;
it was simply provided that the company might abandon the
(i) R. S C., cap. 109, s. 8, § 26 ; the provisions of the present Provincial
Acts are similar to those of the old Federal Act, see Appendix, sec. 158.
i go THE RAILWAY LAW OF CANADA.
notice, and give a new notice as already mentioned. It was
held, under the old Act, by the Quebec Court of Appeals, in the
case of 7 he Seminary of Ste. Therese v. C. P. Ry. Co., that
once the company had given notice of expropriation, and had
taken possession of the lands, they could not discontinue the
proceedings, even on payment of the damages incurred.
This decision was practically confirmed by the Supreme
Court, (i) though not expressly, for the Court there decided
that there was no appeal to that Court ; but some of the judges
expressed themselves as strongly of the view adopted by the
Court of Appeals, namely, that once the notice of expropriation
had been given and the company had taken possession of the
lands, they could not retreat from that position, but must take
the lands and make such compensation as the arbitrators might
assess, — in other words, that the abandonment must take place
while the notice is still a notice, and before the intention- has
been exercised by taking the lands.
The same view was taken in an early Ontario case. (2) In
later cases, however, it was held that the company could desist
from their notice at any stage of the arbitration proceedings
before the award was rendered ; (3) but that, having once desist-
ed and given a new notice, the company could not desist from
the second notice after the arbitration proceedings had begun.
(4) But where the land owner had objected to two successive
notices of expropriation, on the ground that the company had
no right to take any part of his land, and the company desisted
from both notices, and gave a third from which also they
desisted, it was held that the company had not exhausted their
powers of desistment, and that the land owner could not validly
object to the abandonment of proceedings which he had pre-
viously contended the company had no power to take. (5) It
has also been held in Ontario that a new notice must be given
with the desistment, and that without it the old notice remains
in force to uphold an award under it. (6)
(1) T2 L. N. 338, S. C. R. 1889, 16 S. C. R. 606.
(2) G. W. R. Co. v. Miller, 12 U. C. Q. B. 654.
(3) Grimshaw v. G. T. R. Co., 15 U . C. Q. B. 224 and 19 Q. B. 493 ;
Cawthra et al. v. Hamilton and L. E. Ry. Co., 35 Q. 'B. 581.
(4) Moore^. Central Ont. Ry. Co., 2 O. R. 647.
(5) Re Hooper & The Erie & Huron Ry. Co., 12 P. R. 408.
(6) Widder v. Buffalo & Lake Huron Ry. Co., 24 U. C. Q. B. 222.
EMINENT DOMAIN. 191
Under the Act as it stands to-day, however, it would appear
that the company could abandon their notice, and in the lan-
guage of the Act " all proceedings thereunder," at any time, in
the cases specified, even after possession had been'taken.
The Company's engineers or surveyors may often make mis-
takes in the description of the lands in the notice given to the
proprietor, or in the laying out of the line, and it would seem
unjust in such a case that the company could not have the power
to desist from their expropriation proceedings, when they discov-
ered the mistake, which might be only after they had begun
work.
In such cases it would appear that under the Act as it now
stands, the . company would be entitled to desist from their
notice, and the proceedings had under it at any time. The lan-
guage of the Act is now broader than it was before, inasmuch as
it includes not only the abandonment of the notice but of all
proceedings had thereunder; and it would therefore seem to
give the company the right to* desist from the expropriation of
any land, and to take other land in its place, either from the
same proprietors or others, at any stage of the proceedings, (i)
At the same time, it must always be remembered that the com-
pany must pay for their mistakes, and are liable to the proprietor
for all damages and costs which they have caused either by the
giving of the notice or the execution of its works, or any pro-
ceedings which may have been taken under the notice.
These damages and costs may be of various kinds. If the
company has commenced operations upon the land, and made
excavations, or built embankments, or done other work upon
the property which would disfigure it or damage it in any way,
they must pay for such damages, if they abandon the property
or any part of it ; (2) and it might be that even though they had
done no works upon the property, yet if, by the deposit of the
plan and giving the notice, they had prevented the proprietor
from using the land, or from selling or otherwise disposing of it,
he would be entitled to any damage which he could prove result-
ing therefrom.
(1) See Nehan v. St. Catharines & N. C. Ry. Co., 16 O. R. 459.
(2) Wilkesx'. Gzowski, 13 U. C. Q. B. 308.
192 THE RAILWAY LAW OF CANADA.
Form of 44. To return to the form of the award, it must of necessity be
award. m vvriting, (i) and it should be signed by the three arbitrators or
by the majority of the arbitrators, at a meeting held at a time
and place of which the three arbitrators had at least two clear
days notice, or which had been fixed at a previous meeting (2)
when the three arbitrators were present.
According to section 161 of the Act, (3) as already pointed
out, the award must state clearly the sum awarded and the lands
or other property, right or thing for which such sum is to be the
compensation, but the person to whom the same is to be paid
need not be named in the award.
The award must be final ; (4) the compensation must consist
of a fixed or capital sum of money, and not of future periodical
payments dependent upon future events, such as the completion
of a certain work. Such an award would be void for uncertainty.
(5)
The lands or the right or thing for which the compensation is
awarded must be not only clearly but correctly described in the
award, and the award must show in a clear and precise manner
that the lands are those described in the notice of expropriation,
without its being necessary to have recourse to extrinsic proof
to establish that fact. (6) But where arbitrators have valued
the land as a whole, and not at so much by the admeasurement,
an error in the extent will not invalidate the award. (7) And
where the notice of expropriation and the award both described
the lands expropriated as lot number i, on the plan of the railway
company deposited according to law, but in another part of the
notice the lands were described as part of a cadastral lot No.
2345, and in the award as forming part of the lots 2344 and 2345,
it was held by the Supreme Court that there was no uncertainty,
as the wording of the notice and the award was sufficient in
(1) In the Province of Quebec it should be in notarial form, C. C. P.,
art. 1352 ; and see Benning v. A. d^ N. W. Ry. Co., M.L. R., 5 S. C. 136,
6Q.13. 385.
(2) Sec. 152.
(3) Supra p. 189.
(4) G. W. R. Co. v. Laderonte, I P. R. (Ont.) 243.
(5) Bourgouin v. M. O. & O. Ry. Co., 23 L. C. J. 96, 5 App. Cases 381.
(6) N. S. Ry. Co. v. Beaudet, n Q. L. R. 239.
(7) N. S. Ry. Co. v. Ursulines of Quebec, Ram. Dig., 60 Q. B.
EMINENT DOMAIN. 193
itself to describe the property intended to be expropriated and
for the taking of which the compensation was awarded, (i )
In another Quebec case it was held that when the award is
obscure, and does not indicate sufficiently whether the lands for
which the compensation was awarded are the same as those des-
cribed on the railway company's plan, the Court can demand
explanations of the award, but cannot change nor modify the
conclusion to which the arbitrators have come. (2) The sound-
ness of this decision may be doubted in view of the decision of
the Court of Appeals of Quebec in the case of the North Shore
Railway Co. v. Beaudett above referred to. (3) Where there is
an adequate and sufficient description with convenientcertainty of
the land intended to be valued and of the land actually valued,
such award cannot afterwards be set aside on the ground that
there is variation between the description of the land in the notice
of expropriation and in the award, (4) and it is not necessary
to set out the lands by metes and bounds. (5)
As to what the award should and should not contain, some
very clear and pertinent suggestions were made by the late Chief
Justice Robinson in the Ontario case of Great Western Ry. Co.
v. Baby, (6) where that learned judge said : " It should be clearly
" expressed in the first place that the sum awarded is given for
" the value of the lands and tenements or private privileges pro-
" posed to be purchased, (and) or the amount of damages which
" the claimant is entitled to receive in consequence of the in-
" tended railroad in and upon his lands (as the case may be) ; and
" that the award should either be silent in regard to any other
" matter on which the Statute gives any authority to the arbitra-
" tors to give a direction, or that, if the estimate has been in-
" fluenced by anything which the company has engaged to do in
" order to lessen the inconvenience, it should be plainly expressed
" that the company have undertaken to do it, and the particular
" thing should be so denned as to leave no uncertainty and no
(1) Beaudett. N. S. Ry. Co., 15 S. C. R. 44.
(2) N. S. Ry Co. v. 1'Hopital du Sacr€ Cceur, 15 R. L. 599, Q. B.
(3) iiQ.L. R., 239.
(4) Bigaouette v. The N. S. Ry. Co., 17 S. C. R. 363, and see Miller r..
G. W. Ry. Co., 13 U. C. Q. B. 582.
(5) G. W. R. Co. v. Rolph, i P. R. 50.
(6) 12 W. C. Q. B. 106.
194 THE RAILWAY LAW OF CANADA.
" room for future litigation about what is to be done or allowed
" by the company, and at what particular point in their work
"and in what manner it is to be done. It would be better, too,
" that an undertaking under the seal of the company, securing
" the advantage or privilege in precise terms, should be taken,
" and if they will not give such undertaking, there shall be no
" allowance made for such proposed advantages or privileges in
" estimating the value or damages to be paid by the company."
The wisdom of the suggestion of the learned judge as to un-
dertakings by the company is illustrated by several Ontario
cases. For instance, where the evidence before the arbitrators
had been closed, the construction committee of the railway com-
pany wrote a letter, addressed to the party to be expropriated,
agreeing to certain things whereby the damage to his property
would be lessened, and this letter was communicated to the com-
pany's arbitrator and the umpire, but not to the* party expro-
priated himself until the award was rendered, which contained
recitals of the benefits proposed by this letter, and assessed the
compensation at the sum originally offered by the company. The
award was held bad. (i)
Again, where the arbitrators stated in their award that " we
"have taken it for granted in making this award that the said
" C. H. shall have the right to cross the railway track from one
" part of his property to another," the award was held not to be
sufficiently definite or certain. (2) For the same reason, an
award containing a reservaiion in the following words, " preserving
to Dods the right to cross the railway line from one portion of
the said land to the other," was held bad, as far at least as the
reservation was concerned, on the ground that such an absolute
reservation was unauthorized, and if not was so indefinite as to
be invalid.
Remedies 45. Ail appeal lies from the award under section 161, where
against t >-' the amount exceeds $400 to a Superior Court of the Province in
which the lands are situated, upon any question of law or fact ',
questions of fact to be decided upon the evidence taken before
(1) Herring v. Napanee etc. Ry. Co., 5 O. R. 349.
(2) G. W. Ry. Co. v. Hunt, 12 U. C. Q. B. 124; and see Starnes v.
Molson, 29 L. C. J. 278.
EMINENT DOMAIN. 195
the arbitrators as in a case of original jurisdiction. This right
of appeal, however, does not affect the existing law or practice
in any province as to setting aside awards, (i) Under this sec-
tion it would appear that where there is clearly an error of law
or fact on the part of the arbitrators apparent on the face of the
award, or so appearing from the evidence and documents of
record, an appeal would lie, and where the arbitrators have ex-
ceeded their jurisdiction and taken into consideration matters
which they had no right to consider in assessing the amount of
the compensation, or have neglected to take into consideration
matters within their jurisdiction. But if these facts could only
be established by extrinsic evidence outside of the award or of
the record, the proper recourse would seem to be by an action
to set aside the award, as also where the award contains nulli-
ties in itself, or the arbitrators have not complied with the require-
ments of the Act. (2) Where the arbitrators have omitted some
ground of damage within their jurisdiction, it would seem that
the proper course would be by appeal, and it is doubtful whether
an action to set aside would lie in such case, and as to whether
the arbitrators could be examined in such an action to establish
such omission. (3) Where, however, the arbitrators have
awarded a sum as a part of the compensation for a matter with-
out their jurisdiction, they may be examined to establish the
fact. (4)
Where the amount of the compensation is alone in question,
the proper remedy would be by way of appeal, and not by
action ; and it has been held by the Privy Council, that in an
action to set aside the award, the Court will not look at the amount
of the compensation, so long as in fixing that amount the arbi-
trators were acting within their jurisdiction. (5) But the
Superior Court of Quebec, in a later case, while holding that
when all the requirements of the law have been observed, the
award is final and conclusive, and the amount of the compensa-
(1) Ibid, par. 4.
(2) But see M. O. & O. Ry. Co. v. St. Denis, Que. R., 2 Q. B. 532.
(3) Duke of Buccleuch v. Met. Brd. of Works, L. R., 5 H. L. 418;
Wood v. A. & N. W. Ry. Co., Que. R., 2 Q. B. 333.
"(4) Duke of Buccleuch v. Met. Brd. of Works, supra .
(5) Bourgoin v, M. O. & O. Ry. Co., 5 App. Cases 381.
196 THE RAILWAY LAW OF CANADA.
tion entirely within the discretion of the arbitrators, and in the
absence of fraud or other particulars not subject to icview by the
Court, nevertheless held, that inadequacy in the sum awarded
may be such as in itself to constitute proof of legal fraud on the
part of the arbitrators, and in such case the Court may annul and
set aside the award by reason of such fraud ; but to justify such
action by the Court, the sum awarded must be so grossly and
scandalously inadequate as to shock the sense of justice, (i)
It may be observed with regard to this case, that the holding
referred to was a dictum of the learned judge not necessary for
the decision of the case, inasmuch as the award was maintained.
While it may be that such scandalous inadequacy or gross exag-
geration in the amount of an award as to amount to a presump-
tion of fraud may justify the Court in setting it aside, (2) the pi oof
would have to be of the strongest, (3) and it may be well doubted
whether anything short of actual fraud would justify the Court
in so doing. (4) The more proper recourse would now seem to
be by an appeal upon the evidence taken before the arbitrators.
There are many grounds on which awards may be set aside
by action besides those which have been already referred to.
Section 161 provides that the award shall not be invalidated by
reason of any want of form or other technical objection if the re-
quirements of the Act have been substantially complied with. As
to what are the requirements of the Act which must be com-
plied with on pain of nullity, in the first place the arbitrators must
be properly appointed, and though the method of the appointment
of the arbitrators could be shown by any legal proof outside of the
award, it is better that the method of their appointment should be
shown upon the face of the award. In the case of Atlantic & N.
W. JRy. Co. v.Johnson, (5) the judge refused to grant an order
for the payment of money in accordance with the award, where it
was not stated on its face in what manner the third arbitrator
had been appointed.
(1) Benning v. The A. & N. W. Ry. Co., M. L. R., 5 S. C. 136, 6 Q. B.
3S5-
(2) Norvall v. C. S. Ry. Co., 5 O. A. R. 13 ; G. W. R. Co. v. Baby.
12 U. C. Q. B. 106 ; G. W. R. Co. v. Dodds, ibid. 133.
(3) In re G. W. R. Co. & Chauvin, I P. R. (Ont.) 288; Widder v, Buf-
falo & Lake Huron Ry, Co., 24 U. C. Q. B 520, and 27 Q. B. 425.
(4) Ibid. (5) 10 L. N. 228.
EMINENT DOMAIN. 197
Then the arbitrators and the witnesses must be sworn ; and
it is better that this also should be stated in the award, for it has
been held that such statement on the face of the award makes
sufficient proof of the fact of their having been sworn ; (i)
though if it does not so appear by the award itself, the fact of
their having been sworn can be established by any other valid
proof. The omission to swear the arbitrators, this being one
of the requirements of the Act, will invalidate the award. (2)
The evidence must be taken down in writing, and as this is a
requirement of the Act, failure to do so would be a ground for
invalidating the award. (3) The award must be rendered within
the time fixed by the arbitrators, and it is provided in the Act,
as already pointed out, (4) that if it is not rendered on the day
fix-d, or on some other day to which the time for making it has
been extended, either by consent of the parties or by resolution
of the arbitrators, the amount offered by the company is to be
the compensation paid. This provision of the Act is express,
and it appears to be inevitable that an award rendered after the
delay had expired would be a nullity, and would be set aside on
action, and the amount offered by the company declared by
the Court to be the only amount to which the proprietor would
be entitled. The Act further requires that this day should be
fixed at the first meeting of the arbitrators after their appoint-
ment, and an award was set aside by the Court of Appeals in the
case of Beaudet v. The North Shore Ry. Co., (5) where the arbi-
trators had failed to fix a day at their first meeting. The judg-
ment, however, went on other grounds also, holding that the
property was not clearly described, and that the award was un-
certain. The case went to the Supreme Court, where the award
was restored, the Court holding that the property was sufficiently
described for the purposes of identification, and that there was
no uncertainty. (6) It does not appear from the report what was
the decision of the Supreme Court on the other point, but it
(1) Mills v, A. & N. W. Ry. Co., M. L. R., 4 S. C. 302.
(2) Whiifieki v. A. & N. W. Ry. Co., 33 L. C. J. 25,
(3) The evidence may be taken by stenography if required by either
party, 54-55 Vic., cap. 51.
(4) Sec. 156, and supra, p 148.
(5) iiQ.L. R.239. (6) 158. C.R. 44.
198 THE RAILWAY LAW OF CANADA.
must have been adverse to the holding of the Court of Appeals,
as otherwise the award could not have been upheld. Probably the
Court looked upon this provision of the Act as merely directory
and not imperative, and that the provision had been substantially
complied with by the arbitrators having fixed a day at a subse-
quent meeting to the first meeting. This would appear to be a
correct view to take of the matter. It is a mere matter of form
whether the arbitrators fix a delay at their first meeting or at
some subsequent meeting, and where tht parties have proceeded
with a knowledge of the fact, no doubt they would be estopped
from raising this want of form in an action to set aside.
The delay for rendering the award may be prolonged either
by the consent of the parties or by resolution of the arbitra-
tors, (i) As to the manner of extending the delay, it has been
held by the Superior Court of Quebec in the case of The Ctire,
etc., of St. Anne v. The O. & Q. Ry. Co., (2) and confirmed in
Appeal, (3) that where an award has been rendered long after
the day fixed at the first meeting of arbitrators, and though there
was no written consent of the parties and no resolution of the
arbitrators fixing another day, yet the consent would be pre-
sumed from the fact that meetings had been regularly adjourned
from time to time, and notice of such adjournment given to the
company's arbitrator. This case would appear to be of doubtful
authority, inasmuch as the consent of the party could only be
presumed where he knew that the day fixed had been passed,
and there was no evidence in this case to show that the com-
pany had any knowledge of what day had been fixed for the ren-
dering of the award, and as a matter of fact, it appeared that
they were not represented at the first meeting, when the day was
determined on by the arbitrators. It would be different in the
case of a submission in writing, signed by the parties, in which
the delay for rendering the award was fixed. If the parties con-
tinued after that date to bring up witnesses, attend the meetings of
the arbitrators, etc., this might imply a consent to the extension
of the delay, (4) or a recognition that the arbitrators' authority
had not expired.
(I) Sec. 156. (2) M. L. R., 5 S. C. 51.
(3) M. L. R., 7 Q. B. no.
(4) See Earl of Darnley r. Lon., Chat. & Dover Ry. Co., L. R., 2 H. of
L-43-
EMINENT DOMAIN.
199
Both parties are entitled to the opinion of the arbitrators, on
one side or the other, up to the moment that the award is ren-
dered, (i) The Act very particularly provides that the award
shall not be rendered without two days' notice to all the arbitra-
tors. This provision of the Act is in accordance with the princi-
ple that each party is entitled to the opinion, and the counsel
and advice, of each arbitrator, up to the moment the award is
rendered ; and an award rendered in the absence of one of the
arbitrators, without such notice to him, would be bad. (2)
The award in the province of Quebec is, under the provisions
of the Code of Civil Procedure, (3) generally made before a
notary ; and even though the three arbitrators may have agreed
upon the amount of the award among themselves, still, either
party being entitled to have the advice and opinion of all the
arbitrators up to the moment that the formal award is made
before the notary, if the award is so made without the notice
required by the Act, it might be properly set aside by the courts.
For instance, the three arbitrators, after having heard the evi-
dence on both sides, and having examined the property and
deliberated, cannot agree unanimously, but two of them are
agreed to award a certain amount. The third arbitrator does not
agree, but differs in opinion from his brother arbitrators, and,
after discussion, the two arbitrators agree to award a certain
amount. It is necessary for a valid award that the arbitrators
should meet in a notary's office, and make a formal award, assess-
ing the damage at the amount they have agreed upon. The dis-
senting arbitrator is entitled to a notice of that meeting, that is to
say, the notice required by the Act of two days ; and even though
he may have said to his brother arbitrators that he could not
agree with them, and even though they two after discussion had
settled the amount of the award, still the opposite party would be
entitled to his opinion up to the moment that the formal award
was actually signed, because he might by argument or otherwise
(1) Herring v. Napanee, T. & Q. l\y. Co., 5 O. R. 349; Norvall v.
Can. Southern Ry. Co., 9 A. R. (Ont.) 310.
(2) Can. Southern Ry. Co. v. Cunningham et al., CassePs Dig. 34; St.
Denis i\ M. & O. Ry. Co., M. L. R , 6 S. C. 484 ; confirmed in Appeal
Que. R, 2Q. B. 532.
(3) C. C. i'., Art. 1352; Benning v. A. & N. W. Ry. Co., M. L. R., 6
Q. B.38S.
200 THE RAILWAY LAW OF CANADA.
change the opinion of the other arbitrators, and the party whom
he represented would be entitled to the benefit of his opinion,
(i) The principle has been very strongly upheld in Ontario.
It has been invariably held there that both parties to the arbi-
tration are entitled to the benefit of the opinion of each arbitra-
tor up to the moment that the award is rendered. (2) And in
the case of Norvall v. Canada Southern Ry. Co., (3) the doc-
trine was carried to the furthest extent. The arbitrator for the
party complaining against the award had, in that case, refused to
attend a meeting for the purpose of signing a formal award :
that is to say, all the parties having met after hearing the
evidence, etc., and it being found that this arbitrator could not
agree with the others, and two of them having come to an agree-
ment as to the amount to be awarded, it was suggested that they
should meet and render a formal award ; thereupon the dissent-
ing arbitrator stated that he would not meet them again, that it
was impossible for him to come to any agreement, and that
there was no practical object to bs served by meeting again, and
he declined to meet the two arbitrators thereafter. The
other two arbitrators rendered their award without having given
notice to the third of the day on which the formal award was to
be rendered ; and it was held that inasmuch as The Railway Act
required that notice must be given to the dissenting arbitrator,
in order to give validity to the decision of the majority, the
(1) St. Dents v. M. & O. Ry. Co., Que. R., 2 Q. B. 532. But see Cure'
of Ste. Anne v, O. & Q. Ry. Co., M. L. R., 7 Q. B. no, where it was held
that, where the amount of compensation was entered in the minutes of the
arbitrators, and on a subsequent day the award was made out in notarial form
and signed by two of the arbitr.itors, the third not being present o: notified,
this did not invalidate the award previously made and entered in fie minutes.
This decision is in conflict with that of the same Court previously rendered in
Banning r. A. & N. \V. Ry. Co., M. L. R., 6 Q. B. 385, wherein it wasdis-
tinctly held that the notarial award, and not that entered in the minutes, is
the true award ; and with the subsequent decision in St. Dents v. M. & O.
Ry. Co. (supra), that the person selecting an arbitrator is entitled to all the
benefit which results from his presence, in correcting errors of fact and pre-
senting by argument the merits of the claim, and that the formal award ren-
dered before a notary in the absence of one arbitrator without notice to him
was n.ill.
(2) Herring T. Nap. T. & Q. Ry. Co., 5 O. R. 349; Norvall v. Can.
Southern Ry. Co., 9 A. R. 310; City of Toronto v. Leak, 23 Q. B. 223 ;
MacDonald^. Presant, 16 Q. B. 84.
(3) 9 A. R. 3'°-
EMINENT DOMAIN. 201
Court, in the presence of such a direct and absolute provision of
the Statute, must annul the award, (i)
Where, however, there has been a proper adjournment, the
absence of one of the arbitrators at the adjourned meeting would
not invalidate the award. (2) So where the argument closed on
a certain day, and the arbitrators adjourned to the next day,
when after discussion one of them refused to concur with the
others as to the amount of compensation, and withdrew, and the
other two then signed the award, and three days afterwards
acknowledged it in the presence of a witness, it was held that the
award was valid both under the statute and at common law. (3)
The grounds stated hitherto have been practically matters of
form, though formalities required by the Act to be observed ; but
there may be grounds urged which are personal to those who
have rendered the award. The arbitrators themselves, the
judges who assess the amount of compensation, may be recused
on proper grounds. Grounds of disqualification against an
arbitrator could not be urged upon an action to set aside an
award, because, under the Act, these grounds must be urged
before the appointment of the third arbitrator, or in the case of
a third arbitrator, at the time of his appointment by the judge.
(4) But if it could be shown that, at a subsequent stage of the pro-
ceedings, any of the arbitrators had been influenced by improper
motives, it would be a good ground for setting aside the award*
The party aggrieved by an unjust award cannot be deprived of
his right to have it set aside if he can show unfair conduct or
partiality, (5) fraud, collusion with the opposite party, undue in-
fluence, or incapacity on the part of the arbitrators. (6) And in
fact, in practice, these have been the grounds upon which many
awards hive been contested, whether well founded or not; but
there is no doubt that if the fact could be established, that even
(1) See also Anglin -v. Nickle, 30 U. C. C. P. 87; Nott v. Nolt, 5 O.
R. 283.
(2) Freeman v. O. & Q. Ry. Co., 6 O. R. 413.
(3) Freeman v. O. & Q. Ry. Co., 6 O. R. 4(3.
(4) Sec. 1 60, supra p. 153.
(5) Hamilton v. Wilsm, 40.8. 1 6. In re McMullen & Cayley,2 U. C.
Q. B. 175 ; Bull & Bull, 6 U. C. Q. B. 357; Hotckiss & Hall, 7 L. J.
N. S. 320; Burr v. Gamble, 4 Grant's Chy. 626.
(6) Williams v. Roblin, 2 Ont. P. R. 234 ; Lawson v. Hutchinson, 19
Grant's Chy. 84.
2O2
THE RAILWAY LAW OF CANADA.
award.
Practice.
one of the arbitrators, whether the arbitrator of the successful
party or of the losing party, had been so incapacitated, by
drink or otherwise, as not to be capable of giving an independent
and sensible proper opinion, or had been influenced in any way,
or even had accepted refreshments of any kind from any of the
parties, it would be a ground for setting aside the award, (i)
Appeals from 46- With regard to the right of appeal given under The
Railway Act by section 1 6 1, paragraph 3 provides that the pro-
ceedings upon such an appeal shall be as nearly as may be the
same as upon an appeal from a decision of an inferior court to
the Superior Court, subject to any rules or orders which may be
made from time to time by the Courts. No rules of practice affect-
ing such appeals have as yet been passed by our judges, so far
as the author is aware. But in the Province of Quebec the
practice adoped from the existing procedure in cases of appeals
to the Superior Courts from Courts of inferior jurisdiction has
been generally followed, and may be now considered as establish-
ed. That practice is to apply to the court by a petition, setting
forth briefly the appointment of arbitrators, the award, including
a short description of the property or right expropriated, and the
reasons or grounds upon which the appeal is asked for. Notice
of this petition is generally given to the opposite party, though it
is not essential, and a writ is then issued, and the proceedings
go on summarily, before a judge of the Superior Court.
The practice in Ontario is by simple notice of motion, which is
proceeded with summarily, without the issue of a summons, and
without a written answer.
47. In order to bring the papers before the Court, the arbi-
trators are required, at the request of either party, to transmit to
the clerk of the Superior Court, by registered letter, the deposi-
tions taken before them, together with all exhibits and papers
connected with the arbitration, except the award itself. (2) If they
should fail to do so, a writ of mandamus or certiorari would
doubtless lie to compel them to bring the papers before the
Court ; but the usual practice is to make the arbitrators parties
{mis en cause}, and they are thus subject to the orders of the
(I) A. &N. W. Ry. Co v. Bronsden, 1893, Q- R-> 2 Q- B- 47°- A
similar judgment was tendered ihe same day in an action by the same appel-
lant against Trudel respon lent.
(>} Sec. 155, s<. 2.
Bringing the
arbitration
record into
court.
EMINENT DOMAIN. 203
Court in the case. In Ontario they may be ordered to produce
the paper on motion.
48. As to the grounds upon which an appeal may be taken, Grounds of
of course if it can be shown that the arbitrators have been led aPPea •
into error on a question of law, their award could be set aside
entirely, or modified as the case might require. For instance, if
they had erroneously awarded a specific sum for damages,
which the Court found they had no jurisdiction or right by law
to assess, the award might be reduced by that amount, and judg-
ment entered up for the balance, if any, appearing by the award ;
or if, on the contrary, they had refused to allow compensation to
which the party expropriated was entitled, the Couit might
increase the amount accordingly.
49. But the Court has not only power to decide questions of Questions
law, but to decide the facts upon the evidence taken before the of facts,
arbitrators, " as in a case of original jurisdiction."
50. There has been a considerable amount of doubt as to the Principles
principle which should govern courts in adjudicating upon ques- "Pon whicl1
tions of fact upon these appeals, especially as to the grounds interfere upon
on which the courts would interfere with the discretion of the questions of
f ICt
arbitrators as to the amount of the award, either in reducing or
increasing it. In several instances, the judges of the Superior
Court in Quebec have increased the amount of the award on
such appeals by the proprietor, purely on the ground that the
figures given by the witnesses, as being in their opinion the true
amount of compensation, showed a greater amount than that
which the arbitrators had awarded, (i) And in one case, the
judge went so far as to take an average of the amounts sworn to
by the different witnesses for each side, and arriving at his judg-
ment by this rule of thumb, as it were, increased the amount of
the award by over $20, coo. (2) This method — for it cannot be
called a .principle — was, however, strongly condemned by the
Court of Appeals, (3) where the principle was laid down that the
(1) Atl. ,j- N. W. Ky. Co. v. Lavallce, S. C. M., 8th Apl., 1889. Award
increased from $7,420 to $8,460. Reversed in Appeal, and award restored ;
Q. B., ijth January, 1891. Atl. ,j- N. W. Ry. Co. v. Zoc Descarries, S. C. M.,
1st Sept., 1891. Award reduced from $8,000 to $5,600. Atl. ,j- N. W. Ky.
Co. v. Whitfield, S. C., 131)1 Sept., 1890. Award increased from $2,600 to
$5,000. Reversed in Appeal, and award restored ; Q. B., 22nd Dec., 1893.
(2) Judah v. A. & N. W. Ry. Co., 20 R. L. 527 (3) Ibid.
204 THE RAILWAY LAW OF CANADA.
courts should not substitute their judgment for that of the arbi-
trators, except in cases where they were shown to have fallen
into gross error, (i) and the Court restored the original award of
some $30,000. In another case of Lavallee v. The A, & N. W.
Ry. Co., (2) where both parties had appealed from the award,
and the Superior Court had increased the amount of the award
upon the proprietor's appeal, the Court of Appeals again res-
tored the award. Judge Bosse, in delivering the judgment of
the Court, said that while a careful perusal of the evidence led
him to the opinion that the amount of the award was about $1300
in excess of what he himself would have given, there was not
sufficient error shown to justify the Court in interfering with the
discretion of the arbitrators. He pointed out that the arbitrators
were persons chosen for their special knowledge and experience
in such matters, and that they had the advantage not only of
hearing the witnesses, and seeing the manner in which their tes-
timony was given, but also of examining the property and the
neighborhood, which facts, in his opinion, put them in a better
position to decide on the amount of the award than the Courts.
(3) A number of cases have since been decided by the Quebec
Court of Appeals, (4) and the principle to be deduced from them
appears to be that, on an appeal, the Court will not interfere
with the discretion of the arbitrators unless gross error in law cr
in fact is shown, and that to disregard the award of the arbitra-
tors " it would be necessary to prove that they had been influ-
enced by improper motives, or that the evidence should show
conclusively that they had made an error, and that the award
was unfairly and certainly too low, or unjustly and undoubtedly
too high." (5) In so holding, the Courts have followed the Privy
Council in the case of Morrison v. City of Montreal. (6) That
was a case where the proprietor, who had been expropriated,
took an action under the Statute governing expropriations by the
city, (7) to have the amount of an award, which had been fixed
(1) And see Lemoine v . City of Montreal, Allan v. City of Montreal,
Supreme Court, 3 1st May, 1894, 23 S. C. R. 390.
(2) Q. B. Que., 17 January, 1891. (3) Ibid.
(4) M. & O. Ry. Co. v. Bertrand, Q. R., 2 Q. B. 203 ; M. & O. Ry. Co.
•v. Castonguay, Q. R-, 2 Q. B. 207; Can. All. Ry. Co. v Norris, Q. R., 2
Q .B. 222 ; Wood v. A. & N. W. Ry. Co., Q. R., 2 Q. B. 335.
(5) Per Wuriele J., in M.& O. Ry. Co. v. Bertrand, Q. R., 2 Q. B., at p. 205.
(6) 3 App. Cas. 148. (7) 35 Vic., cap. 32.
EMINENT DOMAIN. 205
by the commissioners under the Statute, increased. The Statute
provided in effect that such an action could be taken to increase
the amount of the award where there was "error" on the part
of the commissioners. The judge of the Superior Court nearly
doubled the amount of the award, and went upon the ground
that he was absolutely bound by the evidence adduced on the
action taken by the proprietor, for in that proceeding, the evi-
dence taken before the commissioners did not come before the
Court, but. only the evidence taken in the action, (i) The Court
of Appeals reversed the judgment, and the Privy Council con-
firmed the judgment of the Court of Appeals, holding that the
discretion of the commissioners should not be interfered
with, unless gross error was proved, and it was necessary
that the plaintiff in such an action should clearly prove
the error complained of. (2) That case was under a
Statute quite dissimilar from the one under consideration,
but the principle adopted by the Quebec Court of Appeals
on appeals under The Railway Act would appear to be the
same. In Ontario, where this right of appeal has existed
under a precisely similar clause of a Provincial Act (3) for
many years, the courts have laid down a definite and decided
rule to be followed in such appeals. They have said that the
intention of the Statute was not to make the judge appealed to
a substitute for the arbitrators; and that the amount awarded
by the arbitrators should not be increased or reduced, on the
weight of evidence merely, except in the cases where the Court
would increase or reduce the verdict of a jury : that is to say, if
the amount awarded should be so small or so excessive as to
make it evident that the jurors must have been influenced by
improper motives or led into error. (4) The cases in which
the verdict of a jury would be set aside by the Courts are prac-
tically the same under the Quebec law and the English law, and
the rule, that the same principle should be applied to an award
of arbitrators as that which would be applied to the verdict of a
jury, would seem to be a proper and safe rule, were it not for
(i) Ibid at p. 157. (2) 3 App. Cas. 148.
(3) 38 Vic., cap. 15 Ont. ; R. S. O. (1877), cap. 165.
(4) In re Can. Southern Ry. Co. & Norvall, 41 U. C. Q. B. 195 ; and
see in re MacLean and The Niagara Falls Park, 14 Ont. A. R. 20 ; in re
Bush, 14 Ont. A. R. 73 ; and the Queen v. Paradis, 16 S. C. R. 716.
206 THE RAILWAY LAW OF CANADA.
the language of the Act, which says that the Court shall decide
questions of fact upon the evidence taken before the arbitrators
as in a case of original jurisdiction. The inference to be drawn
from this language would appear to be that, upon such an ap-
peal, it is not a question of the Court substituting its discretion
for that of the arbitrators, but that the Court must examine and
weigh the evidence, and decide upon that evidence whether the
facts proved justified the award or otherwise, and adjudge
accordingly. It has already been held by our Courts in a
number of cases already cited, (i) that awards might be set
aside by action for grossly excessive or inadequate compensation,
but only in extreme cases. The intention of the legislature in
giving a right of appeal on questions of fact seems to have been
to grant a larger remedy against awards of arbitrators under the
Act, than previously existed by way of action to set aside the
award. The effect of the interpretation placed up'on this section
of the Act by the Courts in the cases before cited would tend
to nullify its provisions, and place the party appealing in almost
the same position as though the remedy was limited to that
already existing by an action to set aside the award. The
remedy by way of appeal under the Statute would be little if at
all greater than that previously existing at common law. How-
ever, the Privy Council would seem to have affirmed the prin-
ciples laid down by the Quebec Court of Appeals in the case of
Norris v. The Canada Atlantic Ry. Co. (2) On an appeal to
their Lordships in this case, the judgment of the Court of Appeals
was confirmed. (3) But a careful examination of the judgment
of their Lordships in this case will show that the holding of the
Court of Appeals is not correctly stated. Sir Richard Couch in
delivering their Lordships' judgment said : "The Court of Queen's
" Bench went fully into the matter, and laying down what they
'* considered to be the proper test of the value of the property,
" arrived at the conclusion that the award ought to stand. Their
" Lordships entirely agree in the judgment of the Court of
" Queen's Bench." (4) It is tiue that the Court of Appeals
examined the evidence taken before the arbitrators, but the
(i) Supra p. 204. (2) Que. R., 2 Q. B. 222.
(3) Mussen i1. Can. Atlantic Ry. Co , 17 L. N. 179. (4) 17 L. N. 180.
EMINENT DOMAIN. 207
principle on which they went, to quote the language of Hall J.
in rendering the judgment of the Court, was as follows : " The
" experts selected and appointed in this -case appear to have
'' been men of more than ordinary experience. No insinuation
'' is made on either side against their probity and disinterested-
%i ness. They must be presumed to have taken into considera-
" tion every reason and argument pro and con which were
" adduced before the Court below, and which have been sub-
" mitted to us, and while a Court has clearly the right under
" The Railway Act, to reconsider the evidence and to vary the
" decision of the experts or a majority of them, this power was
" clearly intended as a check only upon possible fraud, acci-
" dental eiror, or gross incompetence, and never to be exercised
" unless in correction of an award, which earned upon its face
" unmistakable evidence of serious injustice." (i)
After discussing the evidence the learned judge proceeded as
follows : " While we cannot assert that the amount awarded by
<' them is the precise conclusion, less or more, to which we would
" have arrived had it fallen to us to make the preliminary valua-
" tion of these damages, we do not feel certain that any other
" result would have more accurately represented the real depreci-
" ation which the property has sustained by this expropriation."
(2) This can hardly be said to be a decision upon the evidence
by the Court as in a case of original jurisdiction as provided by
the Act. The formal judgment of the Court reads as follows :
" Considering that it is not proved that in the award there is
" error, doth dismiss the appeal." (3) The Court thus seems
to have followed the decision of the Privy Council in the Mor-
rison case (4) under a different statute where it was necessary
that error should be proved by evidence adduced before the
Appellate Court, and where the evidence taken before the arbi-
trators was not before the Court. The Lordships of the Privy
Council, however, evidently did not look with favor upon ap-
peals in such cases as was said by Sir Richard Couch. " They
" think, looking to the fact, that this was the decision originally
" of a majority of arbitrators, who were said in the judgment of
(1) Can. Atlantic Ry. Co. z>. Norris, Que. R., 2 Q. B. at p. 226.
(2) Ibid, p. 229. (3) Ibid, p. 229.
(4) 3 App. Cas. 148.
208 THE RAILWAY LAW OF CANADA.
" the Court of Queen's Bench to have been experts, and to
" have been men of more than ordinary business experience, and
" looking further to the fact that the arbitrators had the advan-
" tage of seeing and hearing the witnesses who were examined
" before them,, that an appeal from a decision given in such
" circumstances, upon a question which was merely one of value,
" is one which should be discouraged." (i)
Since the decision of this case, the question as to the true inter-
pretation to be placed upon this section of the Act has been
finally decided by the Privy Council, after full argument, in the
case of The Atlantic & North West Ry. Co. v. Wood. (2) This
appeal was argued solely upon the ground, that under the Statute
the Court below should have examined and weighed the evi-
dence, and decided upon it whether the amount awarded was
justified ; and that the Court had failed to do so, and had pro-
ceeded upon the principles previously laid down by them in
the Norris case. Their Lordships held that the Court below
had sufficiently complied with the Statute. Lord Shand in
delivering the judgment said : — " The Court dealt with the
" award as one which it was their province to review on the
" facts as appearing on the evidence adduced before the arbi-
" trators, and in so doing in the opinion of their Lordships they
" acted rightly and in accordance with the statute. It would
" be a strained and unreasonable reading of the words of the
" statute, ' as in a case of original jurisdiction,' to hold that the
" evidence was to be taken up and considered as if it had been
" adduced before the Court itself in the first instance and not
'* before the arbitrators, and entirely to disregard the judgment
" of the arbitrators and the reasoning in support of it. Such a
" reading of the statute would really make the Court the arbi-
" trators and the sole arbitrators in every arbitration in which
" an appeal on questions of fact was brought against an arbi-
" trator's award. It appears to their Lordships that this was
" not the intention of the Legislature, and that what was intend-
" ed by the statute was not that the Court should thus entirely
" supersede and take the place of the arbitrators, but that they
" should examine into the justice of the award given by them
(1) Per Sir R. Couch, 17 L. N. 180.
(2) 18 L. N. 140, II R. 26.
EMINENT DOMAIN. . 209
" on ils merits, on the facts as well as the law. Previously to
" this enactment the Court had power only to approve of or set
" aside the award of arbitrators. This might often cause much
" expense and inconvenience in renewed proceedings before
" the arbitrators, and the purpose of the Legislature seems to
" have been to enable the Court to avoid this, by giving power
" to make or rather to reform the award by correcting any
" erroneous view which the arbitrators might have taken of
" the evidence ; that, in short, they should review the judgment
" of the arbitrators as they would that of a subordinate Court,
" in a case of original jurisdiction, where review is provided
" for." (i)
51. The effect of the award as to costs depends upon the Costs of arbi-
amount ofthe compensation awarded as compared with the amount trati°n-
offered by the company. If the amount awarded is greater than
that offered by the company, the company must pay the costs, but
otherwise they must be paid by the proprietor, — that is to say, if
the amount is equal to or less than the amount offered. In the
latter case, the costs may be deducted from the amount of com-
pensation awarded. (2)
Notwithstanding the apparently clear provisions of the Act on
this point, a serious question as to its interpretation was raised
in an Ontario case.
On the day that the arbitrators met, the railway company exe-
cuted an agreement for a crossing over the proprietor's land, in
addition tothe money payment, and it appeared that the arbitrators
took the matter of the crossing into consideration in making their
award. The amount of the award was less than the sum offered
by the company, and both parties claimed to be entitled to the
costs of the arbitration, — the company because the award was
less than their offer, and the owner because the value of the
crossing should be added to the sum awarded, which would
make it greater than the offer. It was held that under the cir-
cumstances neither party was entitled to costs. (3)
(1) 18 L.N. at p. 145, ii R. May at p. 31.
(2) Sec. 154.
(3) Ontario & Quebec Ry. Co. T-. Philbrick, 12 S.C.R. 288; 50. R. 674.
14
210 THE RAILWAY LAW OF CANADA.
The amount of the costs, if not agreed upon between the parties,
may be taxed by the judge, (i) These costs include the fees of
the witnesses, the arbitrators, (2) and of the counsel representing
the parties before them, and are practically within the discretion
of the judge, and the decision of the judge in such a case cannot
be appealed from. He is a persona design at a under the .Act, and
consequently there is no appeal from his decision. (3)
The Courts have refused to allow special fees to witnesses for
the time expended in examining the property prior to giving
their testimony, or preparing a report for the benefit of the party
in whose favor they were to give testimony. (4) The arbitrators
themselves seem lo have no power under the Act to award costs
in favor of either party. They can only assess the compensation
and damages to which the proprietor is entitled ; and awards
giving costs to either party have been held to be bad in that
respect, but may be abandoned as to the part awarding costs,
and remain valid as to the compensation. (5) The costs are to
be taxed by the judge, according to the amount of compensation
(1) Sec. 154.
(2) Arbitrators' fees may be referred to the master for taxation. Scott v.
G. T. K., 3 Ont. P. R. 276.
(3) The taxation of a bill of costs by a judge in chambers under the author-
ity of The Quebec Railway Act is not subject to revision by another judge
sitting in bane. Mailhiot et al. v. Burroughs, I L. N. 291 ; 22 L. C. J. loo.
1878.
A judge of the Superior Court may, in his discretion, allow fees to counsel
on an arbitration to fix the indemnity to be paid for lands taken by a railway
company conducted under the provisions of The Quebec Railway Act, 43-44
Vic., cap. 43, § 9, and there is no power in the Court to revise such taxation.
The Montreal & Sorel Ry. Co. r-. Vincent et al., Q. B., Nov. 24, 1884;
M. L R, 4 Q. B. 404; and see Jenkins r. Central Ontario Ry. Co., 4
O. R. 593 ; Can. Pac. Ry. Co. v. Seminary of Ste. Tr.erese, 16 S. C. R. 606;
and In re Kingston & Pembroke Ry. Co. v. Murphy, II Ont. P. R. 304.
(4) Atlantic & N. W. Ry. Co. v. Walker, No. 216 S. C. M. 2oth April,
(5) Held, no objeciion to award that arbitrators awarded costs, for if un-
authorized it was separable from the rest of the award. Widder v. Buffalo
& Lake Huron Ry. Co., 24 U. C. Q. B. 520.
The assessment of costs by arbitrators named under the provisions of the
Statutes does not vitiate their report. Tremblay r. The C. & St- L. Ry. Co.,
5 L. C. R. 219, Q.B.
Arbitrators, in addition to other findings, awarded the plaintiff all the costs
of reference and award.
Held, that part of the second award directing payment of the costs of the
reference and award was bad, but might be abandoned. Rector and Church-
wardens of St. George's Parish i\ King, 2 S. C. R. 143.
EMINENT DOMAIN. 211
awarded by the arbitrators, and they have no discretion in the
matter whatsoever. No provision is made for the recovery of
costs, but only for their taxation. The Courts will therefore
refuse to make an order for payment of such costs, the remedy
being by action of debt on the statutes, (i)
52. Questions have arisen as to interest upon the amount of Interest,
the compensation, and have excited some discussion in our Courts.
It has been urged with great force that where the company
took property which was producing fruits or revenue, it was
bound to pay interest on the value of the property from the date
of the taking of possession. And the principle involved in this
contention cannot be doubted, for it has often been held that
where a party agrees to sell a property producing revenue, and a
price is agreed upon, the buyer is bound to pay interest from
the date of his taking possession of the property, even though the
actual deed of sale for the price agreed upon is not executed
until a later date. It has been therefore urged that the proprietor
is entitled to interest upon the amount of the award from at least
the date of taking possession, if not from the date of the deposit
of the plan, which, as has been already pointed out, is the date
fixed by the act with regard to which the compensation is to be
assessed. And in cases where the company had paid money in-
to Court, in order to obtain possession of the property before the
rendering of the award in the manner provided by the act, (2)
Where the Land Clauses Consolidation Act contained special provisions
respecting claims for compensation for lands affected by the works of a rail-
way, and directed that (except in certain special cases) compensation should
be awarded with costs, and where the special Act declared that the provisions
of the general Act were, "except where expressly varied by the special Act,"
incorporated with it ; and where the general Act provided that the compen-
sation awarded might be recovered with costs, but the special Act contained
no specific directions as to the award and costs, and where the arbitrator in
awarding compensation said nothing about costs, Held, that the claimant
was entitled to costs.
Held, also, that the right to costs was entirely independent of the taxation
of them, and an action could be maintained for the costs, although the amount
of such costs had not been previously settled or ascertained, and consequently
an order for the taxation made by the learned judge on giving his judgment
for the plaintiff was a valid order. Metropolitan District Ry. Co. v. Sharpe,
L. R., 5 App. Cas. 425.
(1) In re Foster and G. W. Ry. Co., 32 U. C. Q. B. 503.
(2) Sec. 164.
212 THE RAILWAY LAW OF CANADA.
on several occasions the Courts have allowed interest to the pro-
prietor, upon the amount of the award from the date of taking
possession, (i) This would not seem to be in accordance
with sound principle, inasmuch as the amount of the award in-
cludes not only the value of the land taken, but the damages to
the remaining portion of the land, of which the proprietor had
not been deprived of the use, and which were not due or owing
by the company until they had been assessed. In any event,
the proprietor would only be entitled to interest upon the value
of the land, and that only from the date at which he had been
deprived of the use or enjoyment of it ; and the answer to the
claim of the proprietor to receive such interest in addition to the
amount of the award would be that this deprivation of use and en-
joyment was a damage consequent upon the exercise of the powers
of the railway, which the arbitrators had power to assess, and which
they must have been presumed to have assessed by their award.
(2) The question has now been finally decided by the Court ot
Appeals in the case of Reburn v. The Ontario & Quebec
Railway Company, (3) confirming the judgment of Mr.
Justice Tait in the Superior Court. (4) That learned judge
held, upon an action by the proprietor to recover interest in ad-
dition to the amount of the award from the date of the deposit
of the plan, that it being within the scope of the powers of the
arbitrators to award interest for any loss of enjoyment which the
proprietor might have suffered, it must be presumed that the
arbitrators had taken this into consideration, and that the pro-
prietor could not go back of the award and claim interest which
was really part of the damages which the arbitrators had power
to assess ; and his judgment was unanimously confirmed by the
Court of Appeals.
Award as a «*«*• ^ ^s provided by section 162 of the Act, that upon pay-
title to the ment or tender of the amount of the compensation awarded or
agreed upon, the award itself or the agreement shall vest in the
(1) A. & N. W. Ry. Co. T. Prudhomme, M. L. R., 2 S . C. 21 : re Phil-
brick r. Ont. & Que'. Ry. Co., II Ont. P. R. 373; re Taylor r-. Ont.
& Que. Ry. Co., ibid, 371 ; re Lea, 21 C. L. J. 154.
(2) Paradisr'. The Queen, i Ex. (Can.) 191.
(3) M. L. R., 6 Q- B- 381 ; and see A. & N; W. Ry. Co. r . Leeming,
Q. R., 3 Q. B. 165.
(4) M. L. R., 5 S. C. 211.
EMINENT DOMAIN.
213
company the power to take possession of the lands, or to exercise
the powers upon the lands which the company have specified in
their notice, or which the proprietor has agreed that they should
exercise. In the case of resistance by the proprietor, the company,
on application to a judge, may obtain a warrant to the sheriff or to
a bailiff to put the company in possession, in spite of any resistance
or opposition. The compensation fixed by the award stands
instead of the lands under sec. 166 of the Act, and any claims
upon the property, such as mortgages or hypothecs, are converted
into a claim upon the money awarded, and the company are only
responsible if they pay any part of the award to any person not
entitled to receive it, saving their recourse against such person. ( i)
In Ontario it has been held that this section applies only where
the compensation has been actually ascertained and paid into
Court. (2)
A railway company had, under a warrant of a County Court
judge, taken possession of a portion of mortgaged lands, and
had constructed their railway thereon, and an arbitration had
been held between the company and the mortgagors ; but at the
time of the bringing of an action by the mortgagees, the award,
though made, had not been taken up by either party. The
mortgagees (plaintiffs) had received no notice of, and had taken
no part in the arbitration proceedings, and had not given any
consent to the taking of the possession. The plaintiffs brought
an action against the railway company and the owners for fore-
closure, offering in their claim to take the compensation awarded,
and release the lands in the possession of the railway company.
In the first Court, Sir Thomas Gait, C.J., gave the usual judg-
ment for redemption or foreclosure as against the mortgagor,
but dismissed the action as against the railway company, hold-
ing that as to them it was in effect an action in ejectment, and
that any claim to the lands was by force of subsection 25 of
section 20 of The Railway Act of Ontario, R. S. O., ch. 170
(section 166, The Railway Act), converted into a claim against
the compensation. In the Court of Appeals, however, this
judgment was reversed. (3)
(1) See supra p. 143.
(2) Scottish Amer. Investment Co. v. Prettie, 20 Ont. A. R. 398 ; but see
Clarke v. Grand Trunk Ry. Co., 35 U.C. Q. B. 57 ; Chewett v. Great
Western Ry. Co., 26 U. C. C. P. 118.
(3) Scottish American Investment Co. v. Prettie, 2o Ont. A. R. 398.
214 THE RAILWAY LAW OF CANADA.
Osier, J.A., for the Court, said: " The incumbrancer is, in my
opinion, in such case entitled to proceed upon his mortgage in
the usual way. It cannot be said that the compensation has
already been ascertained, and until that has been done, it appears
to me that subsection 25 of section 20 R. S. O., cli. 170, cannot
be invoked by the company against the incumbrancer. The
company always have it in their power to bring it into operation
by proceeding with their arbitration and taking up the award.
Sub-section 23 then enables them to defend themselves against
further proceedings by the incumbrancer, by paying the amount
awarded ' to the party entitled to the same,' who is by sub-section
25 the incumbrancer to the amount of his claim.
" It is not for the latter to take up the award, paying the
arbitrator's charges which he would probably have no right to
recover back from anyone, but it is for the company to entitle
themselves to possession, or to defend themselves from further
proceedings, by ascertaining and paying the amount of compen-
sation.
" When the award has been taken up, the incumbrancer
is no doubt entitled to recover the amount from the railway
company (Dunlop v. Township of York} ; (i) but until that has
been done, it is difficult to see what remedy the investment
company would have if they are not entitled to enforce their
mortgage
" The appeal should therefore be allowed, and an order made
declaring that the plaintiffs are entitled to the* usual judgment in
a mortgage action, but that upon payment of the amount awarded,
the lands in occupation of the company should be released from
their mortgage." (2)
In order to provide a means by which the company should be
enabled to avoid any case of this kind, it is provided by the Act
(3) that if there is any reason to fear any such claims upon the
property, or if the proprietor refuses to execute a deed of sale or
give a guarantee against such claims, or if the persons entitled to
payment cannot be found, or in fact if, for any other reason, the
(1) 16 Grant Ch. 216.
(2) 2jOnt. A. K. at p. 402; arid see In n Toronto Belt Line Ry. Co. and
Western Can. L. & S. Co., 26 O. R. 413.
(3) Sees. 167-170 ; and see sec. 140.
EMINENT DOMAIN. 215
company think it advisable, (i) they may pay the amount of the
award into court with interest for six months, that is to say,
for six months from the date of the award, with a copy of the
award. On such deposit, the award is equivalent to a title to the
property in favor of the company; and thereupon proceedings are
taken for the confirmation of the title in the same way as in any
other such case, with the only difference that in the notice which
the prothonotary or clerk of the court is required to give, he
must state that the title of the company is under the Railway
Act, and call upon all persons to file their claims, and then the
claims are settled by the court. A judgment of confirmation
being rendered on these proceedings, the company is given a per-
fect title to the land, clear of all claims of any kind whatsoever,
including not only mortgages, hypothecs and encumbrances of
every description, but also of dower not yet opened ; and the
court is given power to make such order for the payment and
distribution of the money as it may see fit amongst the parties
entitled to it. The court has power to order the payment of
costs either by the company or any other person, as it may see fit.
As to interest, if the judgment is obtained in less than six months
from the payment of the amount of the award into court, a propor-
tionate amount is returned to the company, and if from any fault
or neglect of the company it is not obtained within that period, the
•company must pay in to the prothonotary the interest for such
further period as is right, according to the order of the court. (2)
As has been pointed out, upon payment into Court of the amount
of the award, the company can take possession at once; but even
before the rendering of the award, the company can obtain pos-
session under sec. 163 upon a warrant granted by the judge, upon
affidavit sufficient to satisfy him that immediate possession of the
property is necessary to carry on some part of the works of the
railway with which the company is ready to proceed at once, (3)
(1) As to what would constitute a sufficient reason, see Cawthra v. Hamil-
ton & N. W. Ry. Co., 41 U. C. Q. B. 187.
(2) As to further interest see Judah w. A. & N. W. Ry. 23 S. C. R. 231 ;
and in re Foster and Gt. W. Ry. Co., 32 U. C. Q. B. 503.
(3) It must be clearly established that the company has an indisputable
right to acquire the land by compulsory proceedings ; and that there is some
urgent and substantial need for immediate action. In re Kingston & Pem-
troke Ry.Co. and Murphy, n Ont. P. R. 304. There is no remedy by way
of appeal from the order of a judge under this section, unless the company is
seeking to attain an object collateral only to that for which it was incorporated.
Ibid, and Jenkins v. Central Ont. Ry. Co., 4 O. R. 593.
216 THE RAILWAY LAW OF CANADA.
and this warrant may be granted not only for land which is to be
taken for the actual construction of the railway thereon, but for
any land which is required for the exercise of any of the powers
of the railway, such as the obtaining of material for its construc-
tion, etc. But this provisional warrant of possession can only be
obtained on certain conditions. Under sec. 164, ten days' pre-
vious notice must be given to the proprietor, or the person inter-
ested in the property, and security must be given by the company
to the satisfaction of the judge, by the deposit in a bank specified
by the judge, to the joint credit of the company and the person
interested, of an amount larger than the judge's estimate of the
probable compensation, and not less than one-half more than the
amount offered by the company by their notice.
These provisions of the Act are in accordance with the prin-
ciple generally recognized in civilized countries, that no indivi-
dual can be deprived of his property, except for purposes of
public utility, and upon previous payment of indemnity. Under
the Act, a railway company cannot take possession of any per-
son's property, without either paying the amount of compensation
agreed upon, or fixed by an award of arbitrators, or without
paying in to a bank, as security, under an order of the judge, an
amount amply sufficient to cover the indemnity which may be
finally fixed or agreed upon. This principle has been so far
upheld by our Courts that it has been frequently decided that, if a
railway company take a property for the construction of its road,
without having given compensation or security as provided by
the Act, the company cannot only be sued by the proprietor for
compensation (i) or by possessory action to obtain possession
of the property taken, and to compel the company to vacate,
but the company may be restrained by injunction from operating
its railway across such property. (2) These decisions are merely
(1) Parkdale v. West, 12 App. Cas. 602 ; Pion r. N. S. Ry.Co., 14 App.
Cas. 612 ; Mason r . South Norfolk Ry. Co., 19 O R. 132.
(2) Brevvster r, Mongeon, M. L. R. 3 Q. B., 20 ; Beauharnois June, Ry. r.
Bergevin, 17 R. L. 113; Cathedral of the Holy Trinity v. West. Ont. Pac.
Ry.Co., 14 O. R. 246 ; Cie.de Ch. de Ker Central ?'. Legendre, II Q. L.R.
i of>, Q. B. If, however, an award has been made, but the amount has not
been paid or put into Court, the proprietor is not entitled to an injunction nor
to an order for possesMon, but to a judgment declaring him to have a vendor's
lien on the property, with such provisions as aie necessary to realize by means
of a sale. Slater r. Can. Central Ry. Co., 25 Gr. Lh. 363 ; Lincoln Paper
EMINENT DOMAIN. 217
in accordance with the principle that a railway company, in
exercising the powers of eminent domain granted by the Legisla-
ture, must conform strictly to the conditions imposed by Parlia-
ment, and that every individual whose rights of property are
invaded by the railway company in excess of those powers, is
entitled to redress at the hands of the Courts.
Mills Co.v. St. Catharines & Niagara Ry. Co, iq O. R. 106 ; and see Gait
v Erie & Niagara Ry. Co., 19 U. C. C. P. 357 ; Paterson v. Buffalo &
Lake Huron Ry. Co., 17 Gr. Ch. 521 ; Thompson r. Can. Central Ry. Co.,
3 O.R. 136 ; Banque d'Hochelaga v. M. P. & B. Ry. Co., M. L. R.,1 S. C.
150 ; confirmed in appeal, igth January, 1884. As to Crown lands, see Atty.
Genl. v. Midland Ry. Co., 30. R. 511; Corp. of County of Wellandz'.
Buffalo & Lake Huron Ky. Co., 30 U.C. Q. B. 147 ; Booth v. Mclntyre,
31 U. C. C.P. 183.
CHAPTER VIII.
CONSTRUCTION OF THE RAILWAY.
CONTRACTS FOR CONSTRUCTION.
1. Generally,
2. Form of— Necessity of seal, etc.
3. Conditions and stipulations .
4. Construction of particular con-
tracts— Evidence- — Quality of
work — Claim for increased
price.
5. Bond — Condition — Mutuality.
6. Evidence of contract — Ratifica-
tion— Question for the jury.
7. Ratification of contract — Repudi-
ation of part.
8. Condition precedent — Independent
agreement.
9. Contractor purchaser of land for
construction — Title.
10. Apportionment — Land grant —
Subsidy.
11. Specific performance.
LliBILITY OF COMPANY FOR ACTS
OF CONTRACTORS.
DAMAGE CAUSED BY CONSTRUCTION
OF RAILWAY.
1 . Interference ivith ditches and
•water-courses.
2. Surface water.
3. Quebec Law.
4. Obstruction and diversion of
water-courses .
5. Navigable waters,
6. Subsequent purchaser of land.
7. Duty of the Crown.
HIGHWAYS.
1. Interference with.
2. Approval of Railway Committee.
3. Bridges connecting Highways.
4. Signboards.
FARM CROSSINGS.
BRIDGES, TUNNELS, ETC.
FENCES AND CATTLE GUARDS.
' INTERSECTION OF RAILWAYS.
PRESCRIPTION OR LIMITATION OF
ACTIONS.
Contracts for Construction.
'Generally. 1. Railways are generally constructed in this country under
contracts made with contractors for the whole, or different parts
of the works. Sometimes, though comparatively seldom, the work
is done by the company under the supervision of their engineers
and a manager of construction. It is under the first mentioned
system that most of the questions calling for judicial interpreta-
tion have arisen.
.Form of— 2. No special form of contract is necessary, unless there is
necessity of express provision in the charter or by-laws as to the form. There
-seal, etc.
CONSTRUCTION OF THE RAILWAY. 219
is much divergence of opinion as to the necessity for contracts
being executed under the seal of the company, in order to be
valid and binding upon the company. While it is usual to affix
the company's seal, it is by no means clear that it is essential to
the validity of the contract, especially in this country.
The undoubted rule of the early common law was that a
corporation aggregate must, in general, contract by deed, and
could not bind itself by parol. As regarded municipal and
ecclesiastical corporations, exceptions to the above rule were from
very early times allowed in order that they might be enabled,
without the formality of sealing, to transact matters of minor
importance and of daily occurrence.
As regards trading corporations, the exceptions to the rules
at common law have gradually and largely extended ; " for the
doctrine now is," says Mr. Broom (i) writing in 1869, "that
a body corporate, established for the purpose of trading, may
make all such contracts as are of ordinary occurrence in that
trade, — irrespective of the magnitude of the particular transac-
tion— without the formality of a seal, and that the seal is required
only in matters of unusual and extraordinary character, which
are not likely to arise in the routine of business." (2)
In the United States the rule has almost, if not entirely, dis-
appeared. (3)
Mr. Dillon in his work on Municipal Corporations (4) states
the law thus : — " The modern rule is that corporations may be
bound by contracts not under seal, and the circumstances under
which they will be bound have been stated by Story, J., in
terms which have been approved by the courts in nearly every
State in the Union. Whenever a corporation is acting within
the scope of the legitimate purposes of its institution, all parol
contracts made by its authorized agents are express promises of
the corporation. (5) This is practically the view adopted by
our Supreme Court in the case of Bernardin v. Municip-
(1) Broom, Common Law, p. 563.
(2) Citing South of Ireland Co. v. Waddle L. R., 3 C. P., 463, 469,
474, where the cases are considered.
(3) Parson's Contracts (1892), Vol. I, p. 139, I Redfield, § 113.
(4) 4th Edn., § 192.
(5) Also Cook on Stockholders and Corp. Law (1889), § 721.
220 THE RAILWAY LAW OF CANADA.
ality of North nnffcrin. (i) But this case only settled the point
in so far as it relates to executed contracts, the difference be-
tween executory and executed contracts being recognized. Lord
Justice Lindley, in his late work upon the law of companies. (2)
treats this distinction as exploded, stating " a distinction was at
one time supposed to exist between executed and executory con-
tracts ; but except where the equitable doctrines of part perform-
ance are applicable, a corporation is no more bound by a con-
tract not under its seal, of which it has had the benefit, than it is
by a similar contract which has not been acted upon by either
party." Gwynne, J., in the Bernardin case states it as his opinion
that it is sound law to hold that the principle contended for in
that case applies both to executory and executed contracts, and
that such is the sense of the best English cases. Patterson. J.,
in the same case, (3) said : — " The question, whether an executory
contract made by the council of one of these municipalities, not
under the corporate seal, can be enforced against the corpora-
tion, should, I think, be considered as an open question. It is
not necessary now to decide it because this contract is executed.
It has not for. the same reason been fully argued. I therefore
say no more with regard to the point than that there is room
for argument on both sides of the question."
The law in this country upon the point in question, so far as
it relates to executed contracts, must be regarded as having,
from the earliest days, departed from the English doctrine, and
approached that of the United States. In Pirn v. the Municipal
Council of the County of Ontario, (4) a case involving exactly
the same point as the Bernardin case, Chancellor Blake remarked
that " the present state of the law upon the subject is a reproach
to the administration of justice in England* It may be that the
evil calls for legislative interference ; but if the legislature will
neither declare the law nor alter it, courts of justice are bound
to place their decisions upon some principle intelligible to the
public and sufficient for their guidance ; '' he then proceeds to
review the English cases, noting the divergence of opinions, and
(1) 19 S. C. R. 581, and see Canada Central Ry. Co. r. Murray, 8 S. C. R.
333-
(2) p. 226. (3) p. 635.
(4) 9 U. C. C. P. 302.
CONSTRUCTION OF THE RAILWAY. 221
ends by adopting the view concurred in by the courts of Ontario
for the last thirty years, and finally upheld by the Supreme Court
in the Bernardin case. In the course of his judgment the learned
chancellor made the following argument: — "It is now well
settled that corporations aggregate are liable in tort, although
there has been nothing under the common seal authorizing the
agent or adopting his acts ; again, when land has been used and
occupied by a corporation, the law implies a promise to pay a
reasonable compensation : and when money has been wrongfully
received, assumpsit for money had and received may be main-
tained. Now, if trover and trespass may be maintained under the
circumstances to which I have alluded, and if the law implies a
contract when land has been used, or moneys wrongfully re-
ceived, it is difficult to understand why the same principle should
not be applied wherever the contract being legal has been
executed, and the corporation has received all that it could have
demanded if there had been a contract under the corporate seal.
The argument seems to me, I must confess, conclusive." But
the learned chancellor, it will be noted, draws a distinction be-
tween executed and executory contracts. It is noticeable that
Canadian cases, holding that the corporate seal is not necessary
to the enforcement of an executed contract, proceed chiefly upon
the equitable ground that the corporation, having received
the benefit of the contract, they are estopped from repudiating it,
and not upon the general ground that the seal is no longer a
necessary formality of corporate contracts. As to executory con-
tracts, the question, as stated by Patterson, J., in the Bernardin
case, is an open one.
In this connection it was held in a Manitoba case (i) that
the engagement by a railway company of a civil engineer was not
binding upon the corporation, not being under the corporate seal.
In this case it was admitted, in accordance with the English
authorities, that an inferior servant can be retained by parol,
but that it was clear the plaintiff in this case could not be called
an inferior servant.
In an Ontario case (2) it was held that a clerk hired for a
(1) Armstrongs. Portage, Westbourne & North West Ry. Co., i Man.
344 (1884), Q. B.
(2) Hughes v. The Canada Permanent Investment, etc., Soc., 39 U. C.
Q. B. 221.
222 THE RAILWAY LAW OF CANADA.
year at $800 per annum could not sue for dismissal within the
year for the same reason as the above.
These, and another Ontario case not reported, (i) were all
based upon the English decision of Austin v. The Guardians of
Bethnal Green, (2) where it was held that poor law guardians
are not bound by an unsealed agreement engaging a clerk. But
it is surely erroneous to apply the case of this class of corporations
to that of modern commercial corporations and railway com-
panies ; and in this country, the above decision, holding that the
hiring of a clerk at $800 per annum must be under the corporate
seal, would at this date be wholly untenable, and even impos-
sible.
Probably the future rule adopted in this country will be that
adopted by Pollock, B., in The Australian Steam Navigation Co.
v. Marzetti, (3) and approved by Gwynne, J., in the Bernardin
case, viz.: — " It is now perfectly established, by a series of
authorities, that corporations may, with respect to those matters
for which they are expressly created, deal without seal.
This principle is founded on justice and public convenience,
and in accordance with common sense." The same view was
taken in the United States in the case of Fleckner v. United
States Bank, (4) where it was urged that a corporation could not
authorize any act to be done by an agent by a mere vote of the
directors, but only by an appointment under its corporate seal.
But the court declared that such a doctrine, whatever may have
been its original correctness as applied to common-law corpora-
tions, had " no application to modern corporations created by
statutes, whose charters contemplate the business of the cor-
poration to be transacted by a special body or board of directors ;
and the acts of such a body or board, evidenced by a written
vote, are as completely binding upon the corporation and as
complete authority to their agents, as the utmost solemn acts
done under the corporate seal."
In the recent Supreme Court case of The Water ous Engine
Works Company v. The Corporation of the Town of Palmers-
(1) Washbourne z1. The Canada Car Co., referred to in a note at p. 299
of the former case.
(2) L. R. 9 C. P. 91. (3) ii Ex. 228.
(4) 8 Wheat. (U. S.) 338, 357.
CONSTRUCTION OF THE RAILWAY. 223
ton, (i) the Bernardin case was distinguished; but Patterson, J.,
stated that the general doctrine touching the mode in which a
corporation can be bound by contract was not really in question.
Conformably to the above views, it has been held in Ontario
(2) that a railway can appoint an agent to negotiate for and
obtain municipal aid by a resolution of the board of directors,
without the formality of a by-law or seal of the company. Also
in The Hamilton & Port Dover Ry. Co. v. The Gore Sank, (3)
it was held that a railway company, being indebted to a bank,
the officers of the company had authority to arrange with the
bank, that the latter had authority to garnish certain debts due
to the company, without a resolution of the board of directors,
and that the same need not be under the corporate seal; on the
other hand it was held in an early Ontario case, (4) that an agree-
ment made by a railway company, through their attorney, to com-
promise a suit instituted by plaintiff, on certain terms, was not
binding upon the company in the absence of the corporate seal.
But it was held in a New Brunswick case, (5) that notice by
a company's solicitor to the sureties on a bond, conditioned
for the 6delity of a clerk in the company's employ, to the effect
that the clerk had made default, did not require to be under the
seal of the company, neither did the solicitor's appointment.
Also in Nova Scotia, that where work is done within the ordin-
ary range of duties of a corporation, a contract under seal is not
required. (6) In an Ontario appeal case, it was held that a ver-
bal contract made between a railway company and a person to
manage one of their steamers need not be under seal. (7)
But where an agent was hired by a railway company to obtain
bonuses from municipalities, and the only evidence of the hiring
was a letter written by one of the directors, stating that at a meet-
ing of the board he was directed to make arrangements with the
plaintiff to proceed forthwith, and it was shown that the presi-
dent had recognized and adopted his services, and partially paid
(1) 21 S. C. R. 556.
(2) Wood v. The Ontario & Quebec Ry. Co., 24 U. C. C. P. 334.
(3) 20 Grant Chy. 190.
(4) Doran v. The Great Western Ry. Co., 14 U. C. Q.B. 403.
(5) The Mechanics' Whale Fishing Co. v. Kirby, I All. 223.
(6) Mclntosh re Commissioners of the Court House at Halifax, 20 N. S. 430.
(7) Ellis v. The Midland Ry. Co., 7 Ont. App. 464.
224 THE RAILWAY LAW OF CANADA.
therefor; it was held that this was not a sufficient proof of the
plaintiffs engagement, or of the acceptance of his services by
the company, (i) In Quebec, however, the engagement by a
railway company of a civil engineer, for carrying out the works
of a railway, is held to be a commercial contract, and may be
proved by parol. (2) In Canada Central Railway Co. v. Mur-
ray (3) a contract for fencing made with the Company's managing
director was held valid although not under seal. And amongst
other decisions holding a seal to be unnecessary may be cited
the following Ontario cases. To a declaration alleging that the
plaintiffs entered into an agreement with the defendants to per-
form certain stone work, which they partly performed, and
averring as a breach that the defendants had prevented them from
carrying out and completing the work, whereby, etc., the defen-
dants pleaded the plaintiffs were an association incorporated
under R. S. O. (1877), c. 158, and that the agreement was not
under the plaintiff's seal, it was held, on demurrer, that the plain-
tiffs being a trading corporation, enough was not shown to make
the absence of a seal fatal to the validity of the agreement. (4)
In another case the plaintiffs were a company incorporated
under C. S. C., c. 63, and 24 Viet., c. 19, for the manufacture
and sale of cheese, etc. On the loth August, 1878, a written
agreement was entered into between one C., the plaintiffs' secre-
tary and salesman, and one M., on behalf, as was stated, of the
plaintiffs and defendants respectively, and which was signed by
C. and M. for the sale of the whole of the plaintiffs' July cheese,
as also of their August, September and October cheese, at prices
named : it was held, that the plaintiffs being a trading corporation,
and the contract one specially relating to the objects and pur-
poses of the company, it was binding upon them, though not
under seal. (5)
And it has also been held that a contract made verbally by the
president of a company with the plaintiff, engaging him for
(1) Wood v. The Ontario & Quebec Ry. Co., 24 U. C. C. P. 334.
(2) Legge I1. Trie Laurentian Ry. Co., 3 L. X. 23.
(3) 8 Can. S. C. R. 313.
(4) Ontario Co-operative Stonecutters' Association v. Clarke, 31 U. C. C
P. 280.
(5) Albert Cheese Co. v. Leeming, 31 U.C.C.P. 272.
CONSTRUCTION OF THE RAILWAY. 225
41 the season " as master to manage a steamer, might be binding,
and that non-suit for want of a corporate seal was properly set
aside, (i) In a later case the facts were stated that D., on the
suggestion of R. and the Bank of O., that he should purchase
certain lumber held by the bank as security for advances made
to R., required a guarantee from the bank that the lumber should
be satisfactorily culled and any deficiency paid for by the bank.
The directors thereupon resolved to submit the lumber to a
culler, and if he reported satisfactorily to give the guarantee.
Their local agent, however, with the approbation of their head
manager, without previously employing a culler to report, gave a
guarantee in writing, but not under seal, "on behalf of the bank,"
that the lumber should be satisfactorily culled previous to ship-
ment : — It was held, that no seal was required; and if the Bank
wished to repudiate it, they should repay the mo ney paid to them
by D. for the lumber. (2)
However much the jurisprudence may differ in the various
cases which have been given as illustrations, it would seem to
be sound law, and in accordance with common sense, to say that
contracts for the construction of the railway, entered into for the
carrying out of the very purposes of the company's charter, would
be binding upon the company even if not under the corporate
seal, when executed by an authorized officer : — provided always
of course that they contain no provisions or stipulations ultra
vires of the company.
3. It is customary to insert in construction contracts, condi- Conditions
tions and stipulations which in ordinary contracts would perhaps ?• stlPula~
be looked upon as unusually harsh and severe. For instance,
such as the imposition of penalties upon the contractor for the
slightest deviation from the strict letter of the contract ; the
stipulation that the company should have the right to take the
work from the contractor, whenever their engineers should decide
that" the work was not progressing with sufficient rapidity or in
a proper manner, or to put on an extra force of laborers if the
(i) Ellis v. Midland Ry. Co. ,7 Ont. A. R. 464.
<2) Dobell v. Ontario Bank, 3 O. R. 299.
15
226 THE RAILWAY LAW OF CANADA.
number employed by the contractor is deemed insufficient, (i)
And it is a most usual condition to make the company's engineers
the sole and final judges of the quality and quantity of work per-
formed, and the periodical payments to be made, and the amount
to be paid upon the final estimate when the work is completed.
(2) It is ordinarily provided in most contracts that approximate
estimates shall be made monthly, or at fixed periods, and that
the company will make payments in accordance therewith as the
work progresses, subject to adjustment upon the final estimate
(3) But, unless so provided, a contract calling for monthly
estimates imports an accurate measurement and final estimate
for each month, and not one that is merely approximate. (4)
(i) Ranger v. Great Western Ry. Co., 5 H. of L. Cas. 72 ; Jones ».
The Queen, 7 Can. S C. M. 570.
A clause, providing that the employer may determine the contract and
forfeit the plant, etc., if the works are not proceeded with at the rate of progress
required by the engineer, can, it would seem, only be put in force during the
time limited for the completion of the woik.
A provision authorizing the employer, in the event of default by the contractor
to use the plant and materials, does not make the plant and materials the pro-
perty of the employer. Garrett v. Salisbury & Donet Junct. Ry. Co, L.
R., 2 Eq. 358. And where Government commissioners had the power, under
the terms of a contract, — the work not having been completed within the time
stipulated, or in accordance with the contract, — to take the contract out of
the hands of the contractors and charge them with the extra cost of completing
the same, the contractors' plant should not be forfeited, but should be returned
to them in its then condition, or in such condition as it should be by a reasonable
use and care cf it during the progress of the work to completion. Berlinguet
•v. The Queen, 13 Can. S. C. R. 28.
Where a contractor fails to carry out the terms of the contiact within the
time stated therein, the company can hand the undertaking over to another,
without incurring any responsibility toward the fir-t contractor. Stanton v.
Can. Atl. Ry. Co., 21 R. L. 168 (Q. B). Where a contract for the con-
struction of part of a road stimulates that the price, at so much per foot, shall
be payable monthly, according to the engineer's certificate, and no lump sum
is s-tated for the whole work, the contractors can claim payment for their work
and materials supplied, even where they have not completed the entire con-
tract, if they have not been consulted as to the execution or resolution of the
contract, .or their j ermission has not been asked to have the work continued
at their expense, but on the contrary the proprietor continued and completed
the undertaking, and used the materials prepared by the contractor. McGreevy
i'. Boomer, 9 R. L. 587 (Q. B.). Affirmed by Supreme Court, Cassel's Dig.,
2nd Edit., p. 140.
(2) Jones v. The Queen, 7 S. C. R. 570 ; McCarron v. McGreevy, 13 S.
C. R. 3/8 ; Reg. v. McGreevy, 18 S. C. R. 371 ; Guilbault T. McGreevy,
18 S. C. R. 609 ; Peters v . The Quebec Harbor Commissioners, 19 S. C R.
685.
(3) Ibid.
(4) Herrick v. Central 'Vermont Ry. Co., 27 Vt. 673.
CONSTRUCTION OF THE RAILWAY. 227
Where the work is to be done to the satisfaction of the engineerr
upon whose approval payment is to be made, the contractor
can recover neither upon the contract nor in an action for work
done until the engineer Jias certified his approval, (i) Where
the certificate of the engineer as to the work done and the sums
payable is to be final, it cannot be impeached, except on the
ground of fraud, and no action can be maintained until the certi-
ficate is given. (2) If the engineer's certificate is made con-
clusive, it is binding on both parties to the contract, and no
complaint can be made by the company for defects discovered after
it has been given. (3) In cases where the person who is made
sole judge of the performance of ihe contract is in the permanent
employ of the company, it will be more difficult for the contractor
to make out a case of unfairness, than in the case of a contract
with a private person where an engineer or other professional
man is employed simply for the particular work. In the former
case the contractor has agreed to accept as judge a person whom
he knows may be biased; in the latter case no such knowledge
can be imputed to him. Thus where the person whose certificate
is required is the engineer of the compmy, ihe fact that the
engineer is also a shareholder in the company does not disqualify
him. (4) On the other hand, when it is shown that the engineer
is the agent of a private employer, and has entered into an
agreement with him that the work shall be done for a certain
sum, including his commission, this is sufficient fraud to entitle
the contractor to disregard his decision. (5) A contract under
seal between a company and a contractor to do certain works for a
certain sum cannot be varied by a mere verbal agreement between
the engineer of the company and the contractor. (6) Where
the contract provides that no additions shall be made without a
(1) Jones v. The Queen, 7 S. C. R. 570; McCarron v. McGreevy, 13
S. C. R. 378 ; Peters v. Quebec Harbor Commissioners, 19 S. C. R. 685.
(2) Ib. and Sharpe v. San Paulo R.y. Co., 8 Ch. 597 ; and see Brown v.
Allan, Supreme Ct., 23 June, 188:, Cassel's Digest, 2nd Edit. p. 147.
(3) Ib. and Dunaberg & Witipsk Ry. Co. v. Hopkins, 36 L. T. N. S.
733-
(4) Ranger v. Great West. Ry. Co.. 5 H. L. Cas. 72.
(5) Kimberly v. Dick, 13 Eq. I ; Mclntosh v. Gt. W. Ry. Co., 2 H. &
T. 250 ; Waring v Manchester, Sheffield & Lincoln Ry. Co., 7 H. 482, 2 H.
& T. 239.
(6) Sharp v. San Paulo Ry. Co., 8 Ch. 597.
228
THE RAILWAY LAW OF CANADA.
Construction
of particular
contracts —
evidence —
quality of
work — claim
for increased
price.
written order from the employer's engineer, the engineer's certi-
ficate certifying that extra work has been done is not an order
within the meaning of the contract, (i)
A provision in a contract, that no claim shall be made or
allowed for extra work, " unless the same shall have been done
in pursuance of written contracts or orders signed by the
engineer," and that all claims for work done under such written
contracts or orders shall be presented for settlement within a
given time,— will bar a recovery for any extra work not sup-
ported by the directions, in writing, of the engineer, or presented
for allowance within the time specified. (2)
This rule is not varied by the fact, that previous to doing the
extra work, directed by the engineer, the contractors were
assured by the local or assistant engineer, who communicated
the direction from his chief, that they would receive extra com-
pensation therefor; — it appearing that said assistant had no
authority to bind the company by any such promise. (3) And
this rule is all the stronger in the case of government contracts.
(4) The power given to the engineer, to determine all points
jn dispute by his final certificate, does not give him the right to
deduct any sum from the bulk sum contract price on account of
an alleged difference between the quantity of work to be done,
as stated in ths specifications, and the quantity actually done.
(5) The engineer's certificate must be obtained within a
reasonable time, and where a contractor had not taken any steps
to obtain it until six years after the superintendent had left his
employer, the failure to produce such certificate was sufficient
ground for dismissing his action. (6)
•4.' The plaintiffs, Barry & Smeaton, were sub-contractors for
the mason work on a portion of the line of the Grand Trunk
Railway Company, for constructing which Ross & McRae, the
defendants, had the contract. In a conversation between the
(1) Sulphur & Copper Co. r. McElroy, 3 App. Cas. 1040.
(2) Vandenverker r. Vermont Cent Ry. Co., 27 Vt. 130.
(3) Vandenverker v. Vermont Cent. Ry. Co., 27 Vt. 130.
(4) Jones v. The Queen, 7 S. C. R. 615 ; The Queen v. McGreevy, 18
S. C. K. 372.
(5) Peters i\ The Quebec Harbor Commissioners, 19 S. C. R. 685.
(6) McCarron r. McGreevy, 13 S. C. R. 379.
CONSTRUCTION OF THE RAILWAY. 229
plaintiff Smeaton and the defendant McRae, before the work
was begun, Smeaton was given to understand that the standard
of the second class masonry to be built by plaintiff was to be
equal to that on the " Loop Line," another part of the Grand
Trunk system, and shortly after McRae wrote to plaintiffs, in-
structing them to go on with the work "according to the plans
and specifications furnished by the company."
The plaintiffs had completed a portion of their work, when they
were informed by the engineer in charge that the quality of
second class masonry was to be of a higher standard than they
had supposed, which would increase the cost of construction
from twenty-five to thirty per cent., whereupon they refused to
proceed until McRae, who was present at the time, said to them,
" go on and finish the work as you are told by the engineers, and
you will be paid for it." They thereupon pulled down what was
built, and proceeded according to the directions of the engineer.
When the work was nearly done, McRae tried to withdraw his
offer to pay the increased price, but renewed it on the sub-
contractors threatening to stop. After completion of the work,
payment of the extra price was refused. Upon an action therefor,
it was held that the conversation between McRae and Smeaton
prior to the commencement of the woik, as detailed in the
evidence, justified the sub-contractors in believing that the
standard of quality was to be that of the Loop Line; that the
promise to pay the increased price was in settlement of a bona
fide dispute, which was a good consideration for such promise, (i)
5. H. tendered for the construction of a line of railway pur- Bond— condi-
stiant to an advertisement for tenders, and his offer was condition- aj;ty
ally accepted. At the same time H. executed a bond reciting the
fact of the tender and conditions, within four days, to pro-
vide two acceptable sureties, and deposit 5 per cent, of the amount
of his tender in the Bank of Montreal, and also to execute all
necessary agreements for the commencement and completion of
the work by specified dates, and the prosecution thereof until
completed. These conditions were not performed, and the con-
tract was eventually given to other persons. In an action against
H. on the bond it was held that the agreement made by the bond
(I) Barry v. Ross, 19 S. C. R. 360.
230 THE RAILWAY LAW OK CANADA.
was unilateral; that the railway company was under no obliga-
tion to accept the sureties offered or to give H. the contract ;
that the bond and the agreement for the construction of the
work were to be contemporaneous acts, and as no such agree-
ment was entered into, H. was not liable on the bond, (i)
Evidence of 6. The plaintiffs entered into a contract with one F. to build a
ratification— ^"ence f°r a railway. F. controlled nine-tenths of the stock, and
Question for publicly appeared to be, and was understood to be, and acted as,
managing d rector or manager of the company, although he was at
one time contractor for the building of the whole road. Plaintiffs
built the fence, and the railroad had the benefit thereof. The
company repudiated the contract. In an action by the plaintiff
to recover thereon, certain questions were submitted by the trial
judge to the jury, who found that the plaintiffs, when they con-
tracted, considered they were contracting with the company
through F., and that there was no evidence that the company
repudiated the contract till the action was brought, and that the
payments made were as money which the company owed, not
money which they were paying to be charged to F., and a general
verdict was found for the plaintiffs for the amount of the con-
tract. The Supreme Court held (Ritchie, C. J.,and Taschereau,
J., dissenting), that it was properly left to the jury to decide
whether the work performed, of which the railway company
received the benefit, was contracted for by the company through
the instrumentality of F., or whether they adopted and ratified
the contract ; and that the verdict could not be set aside on the
ground of being against the weight of evidence. (2)
Ratification of 7« The president of a railway company, purporting to act on
contract— Re- ]jena]f of tne company, entered into a contract with certain
pudiation of .
part. contractors for the construction of forty miles of road. By the
contract, bonds to double the amount of the moneys to be
secured were to be deposited in a bank, to secure to the con-
tractors payment of a portion of the price of the construction
of the railroad. The president afterwards agreed that, in default
of payment within a limited time, the contractors should take
(1) Brantford, Waterloo & Lake Erie Ry. Co. v. Huffman, 19 S- C. R. 336.
(2) Canada Central v. Murray. 8 S. C. R. 313.
CONSTRUCTION OF THE RAILWAY. 231
the bonds in payment at fifty cents on the dollar. Two years
after the bonds were delivered to the contractors, the company
filed a bill repudiating the contract, and asking that the bonds be
declared null and void. It appeared that the defendants had
obtained a judgment at law against plaintiffs for a large amount
on the contract, in which action the company had set up as a
defence that the contractors had accepted the bonds in payment,
that the plaintiffs had begun an action then pending on the con-
tract against defendants, claiming damages for non-completion
of work, that an Act of Parliament had been passed in the
interest of the company, which recited the construction and
completion of the work, and that during two years no steps had
been taken to repudiate the contract or to question the presi-
dent's authority, and that the company had taken possession of
and the benefit of the work.
The Court held that the company must be taken to have rati-
fied the contract, and that they could not take the benefit of a
part of the contract and repudiate it as to another part, (i)
8. In an action where the plaintiffs alleged that they had agreed Condition
to complete the ballasting of a certain portion of defendant's precedent —
. . , , Independent
railway, provided the company should furnish cash to meet the agreement.
monthly estimates of the engineer, and that the plaintiffs had
commenced, and were ready to complete the work, but defendants
wrongfully prevented and discharged them, and it was pleaded
in defence, that by the same agreement it was provided, that where-
as plaintiffs had leased said railway from defendants, by lease
bearing even date with the agreement , in which it was provided
that ^30,000 should be expended by defendants on the com-
pletion of the road before the rents should be payable, and
whereas defendants were unable to raise the ^30,000, it was
therefore agreed that the plaintiffs should work the road, free of
any charge for the use of it, and should expend the surplus earn-
ings on the completion thereof, the amount so expended to be
taken as part of the ^30,000; that the lease so made was for the
express purpose of enabling the plaintiffs to work the road, and
raising thereby enough to enable defendants to pay them for the
(i) Winnipeg & Hudson's Bay Ry. Co. v. Mann, 7 Man. 81.
232 THE RAILWAY LAW OP CANADA.
work contracted to be done by them ; that the plaintiffs, although
they had the free use of the road, refused to work it, and aban-
doned the same, whereby they forfeited the contract, and defend-
anis therefore prevented them from proceeding with the work;
it was held on demurrer that the plea was bad, the agreements
being independent, (i)
Contractor 9. Where the contractor purchases in his own name the lands
tends foTcon- recluired for constructing the railway upon, and gives a clear
struction — receipt to the company for value received, for all materials sup-
payment— re- pjje(j an(j work done for them, he must be presumed to have been
paid the price of such lands ; he cannot therefore revendicate
them, although he never gave the company any formal title for
the lands. (2)
The title to land purchased by the contractors in the com--
pany's name for construction of the road is in the company. (3)
And where the contractor acquires the land on his own account
and in his own name, and the road has been constructed thereon,
he cannot, in the case of a seizure against the company, be put
in possession again without allowing the company or their
creditors to withdraw the materials of the road, or himself pay-
ing their value, where such materials have been laid by his per-
mission, and have been paid for partly out of the government
subsidy and partly with the company's money and that of their
creditors. (4)
But when the contractor purchases in his own name the lands
on which the road is built, at his own expense, and when finished
gives a clear receipt to the company for value received for all
materials supplied to and .work done for them, he is presumed to
have been paid for the price of lands, and cannot revendicate
them, although he never gave the company any formal title to
them. (5)
Apportion- 1O. By contract embodied in a statute, the plaintiff company
ment— land covenanted to complete a railway in five years, and thereafter
grant — sub-
sidy- (I) Tate v. Port Hope, etc., Ry. Co., 17 U. C. Q. B. 354.
(2) Roberge v. North Shore Ry. Co., 34 L. C. J. 315 (Q. B.).
(3) Banque d'Hochelaga v. M. P. & B. Ry. Co., M. L. R , I S. C. 150.
(4) Bnnque d'Hochelaga £. M. P. & B. Ry. Co., confirmed in appeal, igth
Jan., 1884.
(5) Roberge v. La Cie. da Ch. de Fer da Nord, 34 L. C. J. 315.
CONSTRUCTION OF THE RAILWAY. 233
to maintain and operate the same. In consideration thereof the
Government covenanted: (ist) "to pay the company upon the
construction and continuous operation of the line an annual sub-
sidy for thirty-five years, such subsidy " to attach in proportionate
parts, and form part of the assets of the company as and when
each five-mile section is completed and operated ; " (2nd) to grant
to the company in fee simple 5000 acres of land for each one
mile of railway completed, on completion of each section of five
miles.
It appeared that the company completed a portion of the line,
and received from the government, on completion of each five-
mile section, the specified grant of land, and certain half-yearly
payments in respect of the proportionate part of the subsidy
which was deemed by the parties to attach thereto ; thereafter
the contract was broken by the company, and the government
refused further payments. In a suit by the company and its
assignees of a division of the railway and of the rights relating
thereto, it was held, that on the true construction of the con-
tract each claim to a grant of land was complete from the time
when the section which had earned it was complete ; that on the
completion of each section a proportionate part of the subsidy
became payable for the specified term, but subject to the con-
dition of continuous efficient operation, (i)
11. The Court will not enforce specific performance of an Specific per-
executory contract involving continuous Acts. (2) Thus, formance.
specific performance of a contract to construct a railway entered
into between a company and a contractor will not, as a rule, be
enforced, the remedy by damages in such a case is complete. (3)
It is no answer, however, to an action for specific performance
of an agreement to carry out certain works in a particular way,
where damages are not an adequate compensation, that the pub-
lic will be put to inconvenience by delay in the traffic while the
works are being carried out. .(4) Nor is it an answer in such a
(1) Government of Newfoundland v. Newfoundland Ry. Co., 13 App. Cas.
199.
(2) S. Wales Ry. Co. v. Wythes, i K. & J. 186 ; The Carleton Branch
Ry. Co. v. The Gran J Southern Co., 21 N. B. 340 ; and Johnson v. Mont-
real, etc, Junction Ry. Co., 22 Grant Chy. 290.
(3) lb.
(4) Raphael v. Thames Valley Ry. Co., L. R., 2 Ch. 147.
234 THE RAILWAY LAW OF CANADA.
case that the works agreed upon cannot be carried out without
taking lands which the company have no power to take. The
company will be directed to perform the agreement, and, if they
fail to do so, they will ba compelled to close their line. (O
Liability of Company for Acts of Contractors.
The question of the nature and extent of the company's lia-
bility for the acts of contractors employed by them in the con-
struction of the railway has already been touched upon. (2) But
it may be further dwelt upon here with advantage. The com-
pany's liability would seem to depend upon ( r ° ) whether the act
causing damage is a natural consequence of the work which the
contractor is employed to do ; (2 ° ) or, not being so, is the result
of negligence on the part of the contractor or his servants, or of
the doing of something outside of the contract, or which he was
not called upon to perform ; and (3 ° ) whether the employer ex-
ercised a direct control and supervision over the manner of the
performance of the work causing the damige. In the first and
third cases, if the facts establish the affirmative of the proposition,
the company would be liable, in the second they would not. (3)
The following cases illustrate the various phases of the ques-
tion. The leading case is that of Ellis v. The Sheffield Gas Con.
sumeri Cj., (4) where Lord Campbell, C. J., thus expressed
himself :
" I am clearly of opinion that if a contractor does the thing
which he is employed to do, the employer is responsible for that
thing, as if he did it himself. I perfectly approve of the cases
which have been cited. In those cases the contractor was em-
ployed to do a thing perfectly lawful, the relation of master and
servant did not subsist between the employer and those actually
doing the work, and therefore the employer was not liable for
their negligence ; he was not answerable for anything beyond what
he employed the contractor to do, and that being lawful, he was
not liable at all. But in the present case, the defendants had no
right to break up the streets at all ; they employed contractors
(1) Atty Gen. v. Mid. Kent Ry. Co., L. R., 3 Ch. loo-
(2) Supra, pp. 30-32.
(3) Supra, pp. 30-32.
(4) 2 Ellis & Bi. 766.
CONSTRUCTION OF THE RAILWAY. 235
to break up the streets, and in so doing, to heap up earth and
stones so as to be a public nuisance, and it was in consequence
of this being done by their orders that the plaintiff sustained dam-
ages. It would be monstrous if a party causing another to do a
thing were exempt from liability for that act, merely because
there was a contract between him and the person immediately
causing the act to be done." (i)
Again in Bower v. Peate, (2) Lord J. Cockburn, C. J., said :
" A man who orders a work to be executed, *
* from which in the natural course of things
injurious consequences to his neighbor must be expected to
arise, unless means are adopted by which such consequences may
be prevented, is bound to see to the doing of that which is neces-
sary to prevent the mischief, and cannot relieve himself of his
responsibility by employing someone else — whether it be the
contractor employed to do the work from which the danger arises,
or some independent person — to do what is necessary to prevent
the act he has ordered to be done from becoming wrongful." (3)
This statement of the law is, as observed by Lord Blackburn
in Hughes v. Percival, (4) rather broadly put, and could not be
universally applied, but would fit most cases of such a nature
arising under railway contracts. The holding in the latter case
was that the law casts a duty upon a person carrying on opera-
tions involving risk to others, to see that reasonable care and
skill are exercised in those operations, and that such a person's
responsibility could not be got rid of by delegating the perform-
ance to a third person. (5)
The rule was well put by Williams, J., in the case of Pickard
v. Sm't'i, (6) as follows : " Unquestionably no one can be made
liable for an act or breach of duty unless it be traceable to him-
self or his servant or servants, in the course of his or their em-
ployment; consequently, if an independent contractor is employed
(i) 2 Ellis & Bl. at p. 769.
(2)L. R., i Q. B. D. 321.
(3) L. R., i Q. B. D. at p. 326.
Gl) 8 App. Cas. 443.
(5) Ibid., and see Barham v. Ipswich Dock Commrs., 54 L. T. 23.
(6) 10 C. B. (N. S.) 480 ; and see Steel v. S. E. Ry. Co., 16 C. B. 550 ;
Reedie v, Lon. & N. W. Ry. Co., 4 Exch. 244 ; Allen v. Hayvvard, 7 Q. B.
960 ; Mitchell v. Darley Main Colliery Co., L. R., 14 Q. B. D. 125.
236 THE RAILWAY LAW OF CANADA.
to do a lawful act, and in the course of the work he, or his ser-
vants, commit some casual act of wrong, or negligence, the
employer is not answerable
11 That rule is, however, inapplicable to cases in which the act
which occasions the injury is one which the contractor was em-
ployed to do ; nor by a parity of reasoning to cases in which the
contractor is entrusted with the performance of the duty incum-
bent upon his employer, and neglects its fulfillment whereby an
injury is occasioned."
The nature and extent of the control and superintendence
which the employer exercises over the contractor is always a
question of fact ; and to entail liability upon the former must be
shewn to have extended, not only over the general character of
the work, but directly to the manner or method of the doing of
the act causing the injury, (i) For instance, where a corporation
employed a contractor to lay down sewer pipes in streets, and
an employee of the contracter was killed by the caving in of the
walls of a sewer owing to insufficient shoring, it was held that
though the corporation exercised a general superintendence over
the work through their inspector, they were not liable, as the
evidence did not show that the corporation had by their inspec-
tor so interfered with the conduct of the work by the deceased
as to assume personal control over him. (2)
Another forcible illustration is afforded by the case of Kcrr v.
Atlantic & North West Ry. Co. (3) There a contractor was
employed to build a portion of the railway, at a fixed price of
so much per yard for filling, excavations, etc., the work to be
done under the superintendence of the company's engineers, in
accordance with their directions, with the usual stipulations as
to the right of the company to take away the work from the con-
tractor, put on an extra force of men, etc. The contractor was
to furnish all materials and plant, and was allowed no extra
remuneration for long hauls; the company, however, were bound to
furnish borrow-pits if required, and to exercise their statutory
powers to expropriate land and rights of way for that purpose,
(1) Supra, pp. 30-32.
(2) Murphy v. Ciiy of Ottawa, 13 O. R. 334.
(3) Q. R., Q. B. (confirmed in the Supreme Court), Dec., 1895. Not >'et
reported in either Court.
CONSTRUCTION OF THE RAILWAY. 237
if called upon by the contractor so to do. The contractor, by
an independent agreement, obtained the right to excavate mate-
rial from the land of a neighboring proprietor. In the course
of excavation he destroyed a right of way to which the land
excavated was subject in favor of the plaintiff, who sued the com-
pany in damages. The latter were held not liable, on the ground
that they could exerciss no control over the contractor as to the
place where he chose to obtain his material or the manner of his
obtaining it, but only as to the quality of the material supplied,
and could not interfere to prevent him obtaining suitable material
wherever he pleased.
The determination of the whole question seems to depend upon
the application to the facts of each case of the maxim, " quifacit
per alium facit per se." It has to be decided whether the person
causing the damage is the agent, servant, or employee of another,
or is one for whose acts that other is responsible. This is the
law in Quebec ; (i) and the commentators on the Code Napo-
leon in France make practically the same distinctions as we find
in the English jurisprudence. With that exactness which charac-
terizes the French text-writers, we find the distinction clearly
drawn between the "proprietor " who engages a "contractor,"
and the " employer " (commettanf) who hires a servant {prepose).
Thus we find Demolombe (2) defining the last named as
" Quiconque est employe par un autre a des soins, a des occupa-
" tions, a des travaux interieurs ou exterieurs, tel que commis,
" surveillant, ouvrier, voiturier, journalier, mecanicien, compa-
" gnon, tons ceux enfin qui se trouvent vers le commettant dans
" une situation subordonnee de ce genre."
And the same writer, after stating that the proprietor would
not be a " commettant " according to the law, if he entrusted
the execution of the works to the contractor " a prix forfait"
without reserving any control, adds, that it would be otherwise
if the person who has ordered the works has reserved to himself
oversight and control, for, in such a case, he has taken the
position of " commettant" and the contractor or- workmen
would become his " prepose" (3)
(1) C. C. 1054-
(2) Tome 31, No. 669.
(3) Tome 31, No. 623.
Interference
with ditches
and water-
courses.
238 THE RAILWAY LAW OF CANADA.
Dalloz adopts the same view, and states that the proprietor
who reserves control and direction over the works which he has
entrusted to the contractor is a " commettant" and, as such,
responsible, under the article of the Code. He says :
" Mais la responsabilite a laquelle 1'article 1394 soumet les
" commettants ne depend pas de ce qu'ils ont choisi leursprepo-
" ses, mais suppose en outre qu'ils ont le droit de leurdonner des
" ordres et des instructions sur la maniere de remplir les fonc-
<f tions auxquelles ils les emploient, autorite sans laquelle il n'y
" apasde veritable commettant.'' (i)
Damage caused by Construction of Railway.
1. It has been already pointed out that damages must be
assessed, once for all, in respect of injuries which were foreseen
or ought to have been foreseen as likely to result from the works
of a railway company to lands taken or injuriously affected.
If the damage that occurs is greater than was anticipated, no
compensation can be subsequently claimed, nor can action be
maintained in respect of it. (2)
This applies generally to cases of overflow of drains and water-
courses. (3)
But the compensation awarded does not, in the absence of ex-
press agreement, include all contingent and possible damage which
may arise from the construction of the works, bat cannot be fore-
seen at the date of the award. (4)
The above statement of the law is, of course, based on the sup-
(1) Dalloz vo. Responsabilite", No. 611, Vide, Manuel des Edtiments,
Torne I, p. 8 ; and pp. 352 and 367.
(2) Supra ch. 7, sec 41 ; and see Croft v. London & North-West Ry. Co.,
3 B. & S. 436 ; Todd v. Metropolitan District Ry. Co., 24 L. T. N. S. 435 ;
Chamberlain v. West of London & Crystal Palace Ry. Co., 2 B. & S,
617, 638.
(3) Knapp v. The Great Western Ry. Co., 6 U. C. C. P. 187 ; L'Esper^
ance v. The Great Westein Ry. Co., 14 U. C. Q. B. 187 ; Vanhorn v. The
Grand Trunk Ry. Co., 9 U. C. C. P. 264;McGillivray v. Great Western Ry.
Co., 25 U. C»R. 69 ; Utters. Great Western Ry. Co.jiyU. C. Q. B. 392;
Nichol v. The Canada Southern Ry. Co., 40 U. C. Q. B. 583 ; Tolton v.
Can. Pac. Ry., 22 O. R. 204 ; Wallaces. The Grand Trunk Ry. Co., 16
U. C. Q. B. 551 ; Crewson v. The Grand Trunk Ry. Co., 27 U. C. Q. B. 68.
(4) Lawrence v. Great Northern Ry. Co., 16 Qt 6.643; Lancashire &
Yorkshire Ry. Co. v. Evans, 15 Beav. 322.
CONSTRUCTION or THE RAILWAY. 239
position that the construction of the works is carried on in a law-
ful and proper manner, and not negligently.
2. By the common law, no rights can be claimed, jure naturae, Surface water.
in the flow of surface water, and its detention, expulsion or
diversion is not an actionable injury, even when injury results to
others, (i) A railway corporation duly authorized by law has no
other or different rights regarding surface water or superficially
percolating waters, and if its road-bed obstructs or diverts the
natural flow of such waters, no right of action, by the common
law, arises to adjoining owners of land, the presumption being
that the damages to which they are en titled were included in the
compensation assessed. (2)
But where the overflow is caused by a negligent or unlawful
construction of the railway, recovery can be had by action at law
and not by arbitration under the Act. If, on the other hand, the
damage which has been sustained could have been foreseen, and
is the natural and necessary result of the construction of the
work authorized by statute, the remedy would be by arbitration
under the Act. (3)
It is difficult to determine what constitutes under the Railway
Acts an actionable negligence in such cases. In an Ontario case,
where the plaintiff was allowed an action for damages against the
company for obstructing the drainage of his land, such damages
seem to have been allowed on the presumption that the company
had, by the terms under which the lands were acquired, rendered
it incumbent upon them to construct a culvert to carry away the
accumulated or other waters, and that such culvert being insuffi-
cient for the purpose, its inefficiency was evidence of negligent
construction. (4) The language used by Draper, C. J., in this
case was as follows : ''It must have been foreseen that the em-
1 i) Gould on Waters, § 263.
(2) Walker v. Old Colony Railroad Co., 103 Mass. lo ; Nichol v. The Can-
ada Southern Ry. Co., 40 U- C. Q. 13. 583 ; commenting on and distinguish-
ing McGillivray v . Great Western Ry. Co., 25 U. C. Q. B. 69 ; Crewson
v. The Grand Trunk Ry. Co., 27 U. C. Q. B. 68 ; L'Esperance v. Great
Western Ry. Co., 14 U- C- Q. B. 173.
(3) Addison on Torts, 763 ; Simoneau v. The Queen, 2 Ex. (Can.) 391 ;
Morin v . The Queen, 20 S. C. R. 515 (confirming 2 Ex. 390), and see Wal-
laces. G. T. R. Co., 16 U. C. Q. B. 551 ; Cameron v. Ont., Simcoe &
Huron Ry. Co., 14 U. C. Q- B. 612.
(4) McGillivray v. The Great Western Ry. Co., 25 TJ.C.Q.B. at p. 74.
240 THE RAILWAY LAW OF CANADA.
bankment, without any culvert, would prevent such natural or
artificial drainage , and if the defendants acquired the land on
which to place the embankment without condition or reservation
of any kind, the decisions show this would have barred the
plaintiff's claim. The defendants offer no evidence of the terms
on which they acquired the lands, but we have the fact that they
did construct a culvert, which, after the verdict, we must take to
be insufficient ; and we think we must also assume that in some
way it had become obligatory on the defendants to construct it,
and that the drainage of the lot was the object proposed ; or it
may be perhaps more properly stated, that preventing dam-
age to the land, by stopping the escape of surface water, was the
object and the duty cast on the defendants. The fact that the
defendants have recently made another culvert in a different part
of the embankment strengthens this conclusion." (i.)
It will be noticed that the Railway Act does not provide for
the case of surface water as it does for the restoration of water-
courses or streams under section 91. The most that can be
said in favor of the contention, that railway companies are to
provide for the proper drainage of surface water, is to be found
in section 92, where they are enjoined to do the necessary works
with as little damage as possible.
This was the state of affairs that existed in the leading case of
Lawrence v. The Great Northern Railway Co., (2) the special
statute governing the defendants in that case only requiring them
to make openings when the railway crossed any public drains,
embankments, or works made in any drainage district, but was
silent as to flood waters.
The plaintiffs had already been compensated for all injury
and damage done to the estate by severance or otherwise. The
railway, construe! ed in conformity with its Act of Parliament,
was carried along an embankment upon low lands lying between
a river and plaintiff's land. The low lands were separated from
plaintiff's land by a bank, which, before the railway embankment
was placed there, was sufficient to protect his land from the
flood-waters of the river ; but, in consequence of the construc-
(1) Ib. P. 74.
(2) 16 Q. B. 643, 6 Eng. Ry. Cas. 495.
CONSTRUCTION OF THE RAILWAY. 241
tion of the railway embankment, the flood-waters were unable
to spread themselves over the low lands as formerly, and flowed
over the bank on to his land. The Court held that as the com-
pany might, by proper precautions, have prevented the injury
sustained by the plaintiff, an action on the case was maintainable ;
and the compensation previously had could not be held to em-
brace contingent and possible damages which might arise after-
wards by the works of the company at other places, and which
could not be foreseen by the arbitrator.
It is to be noticed, that the Court in this case also decided
that the road was negligently constructed, because the company,
by executing their works with proper precaution, might have
avoided the injury to the plaintiff ; and the want of such caution
was sufficient to sustain the action. It was only on such grounds
that the Court could have held that the remedy was by action,
for had the company been acting lawfully in every respect, and
not negligently, the remedy, if any, must have been by arbitra-
tion under the Railway Acts, (i)
No doubt the above case was one where the method of con-
structing the road might be clearly said to be in derogation of
the principles of the English Railway Act, and of section 92 of
our Railway Act, which require that the company's powers shall
be exercised so as to commit as little damage as possible. The
company had clear notice of the flooding of the land by the
presence of the embankment previously erected to exclude the
waters from plaintiff's land, and would certainly know that the
construction of their embankment would, without a proper out-
let for the waters, unduly confine them. (2)
It is further pointed out in some of the Ontario cases, that one
of the most important grounds of the above decision was that
the damage complained of was occasioned by an act of the
railway company at a place not on plaintiffs land, and with
which the plaintiff had nothing to do, and was not concerned in-
{3) This is also the American doctrine : that damages esti-
(1) See judgment of Wilson, J., in Nichol ». Canada Southern Ry. Co. ,40
U. C. Q. B., at page 594.
(2) See also I. Redfield on Railways, § 82, s. 7.
(3) See judgment of Draper, C. J., in Knapp v. The Great Western Ry.
Co , 6 U. C. C. P., at p. 192 ; also of Burns, J., in L'Esperance v. Great
Western Ry. Co., 14 U. C. R., at p. 176.
16
242 THE RAILWAY LAW or CANADA.
mated in the assessment are those resulting from the construction
of the road on the land taken from the owner, but cannot include
damages resulting from construction on the land of others, (i)
When, however, the character and extent of a contingent future
injury is capable of being ascertained, the amount of compensa-
tion should be ascertained once for all. (2) In Ontario it has
been held that railway companies are not subject to the provi-
sions of "The Ditches and Watercourses Act" (R. S. O., ch.
199, 1877) ; (3) and in any event, that such Acts could not be
made applicable to railways under the jurisdiction of the Do-
minion Parliament. (4)
Quebec Law. 3. By the law of Quebec, lands on a lower level are subject to
receive such waters as flow naturally and without the agency of
man, from those on a higher level, (5) and the owner of the
lower land can do nothing to prevent this flow, nor can the
owner of the higher level do anything to aggravate it. (6) If
a railway company in that province does not use or exercise its
powers in such a way as to drain the lands through which its rail-
way runs as effectually as they had been drained by the old water-
courses before the construction of the railway, it must make
compensation or pay damages. (7) But when the injury occa-
sioned to the plaintiff is one that could have been foreseen at the
time when part of his farm was taken for the purposes of the
railway, the company is discharged from making further com-
pensation by the acquittance given to the company of all dam-
ages resulting from such expropriation. (8)
In a case where plaintiff's farm was at the bottom of a sloper
and the railway ditches, which crossed his boundary ditches and
those of the neighboring proprietors, collected the water for
about a mi'e and a half, and discharged it upon his property, sa
(1) Mills Eminent Domain, § 217.
(2) Croft v. London, etc., Ry. Co., 32 L. ]. (Q. B.) 113.
(3) Miller v. G. T. R. Co., 45 U. C. Q. B. 222.
(4) Per Hagarty, C. J., at p. 225.
(5) C. C. 501.
(6) C. C. 502.
(7) Grand Trunk Ry. Co. v. Miville, 14 L. C. R. 469; Can. Pac. Ry^
Co. v. Pichette, 31 L. C. J. 36 (Q.B.) ; Can. Pac. Ry. v. Landry, U R. L.
590.
(8) Simoneau v. The Queen, 2 Ex. (Can ) 391 ; Morin v. The Queen, 20
S. C. R. 515.
CON.C TRUCTION OF THE RAILWAY. 243
that, in consequence, he was obliged, either to suffer his land to
be overflowed, or to accept the burden of maintaining ditches
sufficient to carry off the water so collected and discharged; and
the flooding did not occur until five or six years after the con-
struction of the railway, and the flooding was not in consequence
of any defect or want of repair in the railway ditches or culverts,
but because the boundary ditches were not kept open and in
good order ; it was held that what had happened could have been
foreseen, for it was obvious that the ditches on each side of the
railway would collect water and discharge it in the manner
mentioned, (i)
4:t When the surface water is drained off land by means of artifi- Obstruction
cial drains, the company are now bound, (sec. 91) upon acquiring of water-151
lands for construction purposes, to restore such drains in the courses,
same manner as water-courses, properly so called, to their former
usefulness. Any agreements, therefore, in regard to transfers
of land ro railway companies under the Railway Act will neces-
sarily be made under the assumption that the company will not
impair the drainage capacity of the remaining portion of land.
If, owing to the construction of the road, the remaining
portion of land is flooded, by the inability of the surface water to
find egress through the drains, then, if the construction was
negligent in the light of sec. 91, compensation could be recovered
in an action for damages against the company. (2) Where an
injunction was taken to restrain a railway from interfering with
the plaintiff's water power and his mills by constructing an
embankment across his mill dam, it was held : that as the railway
works were actually constructed before the writ was served, the
injunction was not well taken, and that the plaintiff, having
allowed the question of his alleged damage to be submitted to
arbitration before serving his injunction, he thereby waived his
right to an injunction. (3)
(1) Ib.
(2) Vanhorn v. The Grand Trunk Ry. Co., iSU.C.R. 356; gU.C.C.P.
264 ; McGillivray v. The Great Western Ry. Co., 25 U. C. Q. B. 69 ; Moison
v. The Great Western Ry . Co. , 14 U. C. R. 109 ; Carron v. The Great Western
Ry. Co., 14 U. C. R. 192 ; Addison on Torts 763.
(3) Poudrette v. O. & Q. Ry. Co., u L. N. 130.
244
THE RAILWAY LAW OF CANADA.
5. In the erection of bridges the company are not to impede the
free navigation of any river, stream or canal, (i) Before any
bridge is built over navigable waters, the plan of the bridge and
the proposed site of the work must be submitted to the Railway
Committee for their approval. (2) The opening of swing bridges
or draw bridges over rivers or canals is also subject to the regu-
lation prescribed from time to time by the governor in council,
(3) also the height of bridges above the surface of the water
crossed. (4) The governor in council may also require the
substitution of one form of bridge for another. (5)
6. The subsequent purchaser of land adjoining a railway cannot
recover for damages to such land arising by reason of the
construction of the railway, where the former proprietor had
been compensated for all damages occasioned thereto by the
railway passing over and across his lands, (6) excepting when
the injury is of an extraordinary or unusual nature. But it
appears that where a railway company diverts a water-course with-
out authority, and afterwards makes compensation therefor to
the then owner of the land, the plaintiffs predecessor in title, the
equitable easement thereby created in favor of the company is
not valid against the registered deed of the plaintiff, a bond fide
purchaser for value without actual notice ; the diversion being
wrongful as against the plaintiff. (7)
7. The Crown is under no obligation to repair or keep open the
boundary ditches between farms crossed by the Intercolonial
Railway in the Province of Quebec. (8)
(1) Sec. 178.
In a case where the Corporation of Tingwick sued the G. T. Ry. Co. for
damages caused to a bridge they had built over a river by the swelling of
the river in consequence of defendants' bridge, it was Held : that damages
were due, including the cost of rebuilding plaintiffs' bridge, but only such
damages as were suffered within a year previous to date of action. Corp. of
Tingwick v. G. T. R. Co., 3 Q. L. R. in (Q. B. 1877).
(2) Sec. 181.
(3) Sec. 179.
(4) Sec. 179.
(5) Sec. 182.
(6) Wallace v. The Grand Trunk Ry. Co., 16 U. C. R. 551; Part-
ridge -v. The Great Western Ry. Co., 8 U. C. C. P. 97.
(7) Tolton v. Can. Pac. Ry. Co., 22 O. R. 204.
(8) Bertrand v. The Queen, 2 Ex. (Can.) 285 ; Simoneau v. The Queen,
2 Ex. (Can.) 391 ; Morin v. The Queen, 2 Ex. (Can.) 396, 20 Can. S. C.
R. 515.
CONSTRUCTION OF THE RAILWAY. 245
Highways.
1. Sections 183 to 190 contain regulations affecting highway interference
crossings. By sec. 186 the inclination of the ascent or descent, with,
as the case may be, of any approach by which any roadway is
carried over or under the railway or across it at rail level, must
not be greater than one foot of rise or fall for every twenty feet
of the horizontal length of such approach, unless the Railway
Committee directs otherwise.
The descent, even of the one foot in twenty, must be a gradual
and not an abrupt one. Where the railway has excavated a portion
of the highway for the purposes of the railway, leaving the railway
at a certain point of the highway two feet six inches below its
level, the company will be liable for injuries resulting from the
dangerous condition of the highway to persons lawfully using it.
CO
By the present Railway Act, the crossing of railways upon,
along, or across streets or other public highways, is now under
the jurisdiction of the Railway Committee.
The authority vested in the Railway Committee by sections
ii and 14 of the Act, with respect to highways and streets over
and through lands of a railway company, can only be exercised
upon an application or complaint made to it. in the absence of
any complaint or application, the general power of a Municipal
council, in the Province of Quebec, to order and lay out roads,
is not restricted, and its proceedings are valid. (2)
Where a projected public road within a municipality runs
across land of a railway company, it is necessary to obtain the
consent of the railway company, or the authorization of the Rail-
way Committee, to the laying out of such road, when the land
intersected by the road is actually used or required for the
working of the railway. (3)
Under the old Railway Acts, such jurisdiction belonged to the
municipal authorities. In such cases it has been held that
where a railway company constructed their railway along a high-
way in a municipailty, the council whereof were not formally
(1) Grand Trunk Ry. v. Sibbald, 20 S. C. R. 259.
(2) Corp. de St. Valentin v. Comeau, Q. R., 3 Q. B. 104.
(3) Ib. ; and see Parish of St. Liboire v. G. T. R Co., 16 L. C. R. 198.
246 THE RAILWAY LAW OF CANADA.
applied to for leave, but subsequently passed a resolution notify-
ing the railway company to fill up the ditch existing on both sides
of the railway, and to put down proper crossings, the corporation
had thereby admitted that the railway company were lawfully in
occupation of the highway, and could not afterwards object, (i)
Also that the leave of the municipal authorities, required before
a railway could be carried along an existing highway, may be
granted at any time whether before, during, or after construction
of the railway, and need not necessarily be given by by-law.
And a Municipal Act, enacting that the powers of township
councils shall be exercised by by-law, must be construed as
referring only to the exercise of powers of the council under the
Municipal Act, and not to powers which may be exercised under
a special Act passed for other purposes or by another legis-
lature. (2)
The corporation having stood by while the railway was con-
structed, and subsequently for upwards of five years, while it was
in operation, and having also, by resolution, procured further
expenditure by the company, were held to be bound by
acquiescence, and could not maintain an action for the removal
of the railway from the street. A corporation may be bound by
acquiescence as an individual may. (3)
The principle lhat the permission of the municipal authorities
to a railway company, to build along and upon a street, and even
occupy the whole of it, may be granted by mere resolution, or
even inferred from their acts or acquiescence, and that such
permission relieves the railway company fom liability for
obstructing the street, has been recognized in Ontario for many
years. (4) And the Privy Council, in a recent Quebec case,
(5) has refused to interfere with this judicial interpretation of a
clause re-enacted time and again in the Railway Acts of this
country. In the case referred to, the railway company occupied
(1) Corp. Township of Pembroke v. The Canada Central Ry. Co., 3 O. R.
503-'
(2) Corp. Township of Pembroke v. The Canada Central Ry. Co., 3 O. R.
503-
(3) 1°-
(4) Regina v. G. T. R. Co., 15 U. C. Q. B. 121; in re Day and the Town
of Guelph, 15 U. C. Q.B. 126.
(5) Atty. Genl. (Casgrain) v. Atl. & N. W. Ry. Co., II R. May (confirm-
ing the judgment of the Quebec Court of Appeals, Q. R. 2 Q. B. 305).
CONSTRUCTION OF THE RAILWAY. 247
the whole of an alleged public street with their works. On a
suit by the Attorney General at the instance of a private relator,
to re-open the street, it was held that inasmuch as by plans,
submitted to and approved by the Municipal Council, it was
shewn that this street would be closed by the works, there was a
virtual permission granted by the council to close the street, and
that the company were acting within their powers, though not
expressly authorized by either by-law or resolution to close the
street.
The Courts have been frequently called upon to decide ques-
tions arising in actions of damages by proprietors whose pro-
perty abutted upon streets or highways along which a railway
was carried under this provision of the former Acts. In the case
of Lambert v. Corporation of Three Rivers, (j) the Quebec
Court of Appeals decided that where the works for the con-
struction of a railway authorized by statute, passing in the street
of a town, injure the property of an individual, his action for
damages would lie against the railway company, and not against
the corporation. In another case of the City of Three Rivers v.
Louis Lessard, (2) the same court re-affirmed this principle, hold-
ing that a municipal corporation is not responsible for damages
caused to a property by works constructed in a street by a rail-
way company authorized by statute to make such works ; and
if the works cause damage, they should be claimed from the com-
pany and not from the corporation. Again, in a case of Renaud
v. City of Quebec, (3) it was held that the location and con-
struction of a railway, and the passage of its trains in one of the
streets of Quebec, was a use to which the street had not been
destined to be put, and that the corporation could not, without
being authorized by a special act, permit such construction nor
the passage of trains, and the corporation, by authorizing such
construction and passage of trains, committed an illegal act, and
rendered itself jointly and severally liable with the railway for
damages to the abutting proprietors. This case could only be
supported, on the ground that the city had not given the neces-
sary permission as required by the statute (16 Vic., cap. 100). But
(1) 10 R. L. 359.
(2) 10 R. L. 441.
(3) 8 Q. L. R. 102. Reversed in Appeal. See Ramsay's Digest, p. 214.
248 THE RAILWAY LAW OF CANADA.
in the Supreme Court, in the case of Lefebvre v. City of Quebec y
(i) it was held that where the owner of several house sabutting on
a street, through which a railway was authorized to pass both by
statute and resolution of the city council, took action against the
city corporation for damages suffered on account of the con-
struction and operation of the railway, the owner had no right of
action against the corporation. The reasons given being that if
the corporation gave the authority in compliance with the statute,
there was a complete justification of the acts complained of. In
that case, the corporation merely gave the railway company
liberty to choose one of the streets in the town ; and although
they were subsequently informed of the choice made by the com-
pany, and asked to take steps to legalize the line, they took no
further action. Under these circumstances, it was held that the
recourse of the abutting proprietor, if any he had, was not against
the city corporation, but against the railway company.
As has been already pointed out, the damages which a pro-
prietor may recover from a railway company acting within its
powers must be the result of a loss peculiar to himself, and
differing in kind from that suffered by the community generally,
and this principle has been applied to the case of loss or
inconvenience suffered by a proprietor owning land abutting
upon a street through which the railway has been permitted
to run. In the case of Brodeur v. the Corporation of Roxton
Falls and the South Eastern Railway Company, (2) it
was held that in order to maintain an action of damages
against a railway company because of the running of the railway
over a public highway adjoining the residence of the plaintiff,
and obstructing his egress and ingress, it is necessary for the
plaintiff to prove that the immediate access to his premises is
affected, and that he has sustained damages particular to himself
and differing in kind from that of the public. That is to say,
that if his access is not cut off by the railway, but that he merely
suffered inconvenience not different in kind, though greater in
degi ee, than other proprietors along the street, he would not be
entitled to compensation. This principle was re-affirmed in the
(1) Cassel's Dig. 176.
(2) II R. L. 447.
CONSTRUCTION OF THE RAILWAY. 249
case of Whit field against the A. & N. W. Railway, (i) where
the plaintiff, a proprietor of land abutting on a street in the town
of Iberville, sought to restrain the railway company, by injunc-
tion, from constructing and operating its railway along the street
in front of his property. The injunction was refused, upon the
same ground as that stated in Brodeur's case, namely, that the
damage which the plaintiff claimed to have suffered resulted from
an inconvenience which was the same in kind as that suffered by
the other proprietors along the street and the inhabitants of the
town generally, and was not one which was a subject of com-
pensation under the Act, and that therefore the railway company
was not bound to pay compensation before proceeding with its
work. (2) The case would be otherwise, had the railway com-
pany caused particular and special damage to the property of the
proprietor, as was held by Privy Council in the town of Parkdale
v. -West, (3) where the railway company lowered the level of the
street so as to immediately and directly affect the access to the
plaintiff's property. In the Brodeur case, it was also held that the
municipality, having tolerated the laying and using of the railway
along the street in question, would be thereby estoppe::! from
urging that its construction and use was unauthorized by them.
Notwithstanding any liability which may be cast by statute
upon a railway company, to maintain and repair a bridge and
its approaches by means of which a highway is carried over their
railway (4) such highway is still a public highway, and as such
comes within the provisions of a Municipal Act requiring every
public road, street, bridge and highway to be kept in repair by
the municipal corporation, who are not absolved from liability for
default by the liability, if any, of the railway company. (5)
Where a public load or highway is carried over the rail-
way by a bridge, it has been held, and may be now considered
as settled, that the railway company is bound to keep the road-
way upon the bridge in repafr, the roadway being considered as
(1) S. C. 1888, 33 L. C. J. 24.
(2) And see Bourdon v. Bernard, 15 L. C. J. 60 (Q. B. 1870).
(3) 12 App. Cas. 602.
(4) As to liability of Ry. Co., see Fairbanks v. Great Western Ry. Co.,
35 U. C. Q. B. 523, and G. T. R. v. Godbout, 6 Q. L. R. 63.
(5) Meads/. Township of Etobicoke, 18 O. R. 438.
250 THE RAILWAY LAW OF CANADA.
part of the bridge which the railway company would be bound to
keep in repair. This was held in England in the case of the
Lancashire & Yorkshire Ry. Co. v. The Mayor and Corporation
of Bury, (i) by the House of Lords confirming the decision of
the Court of Appeal. Arguing from analogy, it would seem that
if the highway were carried under the railway by means of a sub-
way or tunnel, thri portion of the roadway beneath the embank-
ment of the railway would also have to be kept in repair by the
railway company ; and in either case, the railway company would
be liable for any damage caused to any person using such road-
way, on such bridge or in such tunnel, by reason of its not being
in proper state of repair. The result of such a decision as that
of the House of Lords in the Lancashire & Yorkshire Ry. Co.
might be very far reaching. For instance, where a railway is
carried for a considerable distance under the streets of a town,
and the portions cf the street thus tunneled under are supported
by archways or bridges upon which the streets are supported, it
might be a serious question as to whether the railway company
would not be liab'e for any damage caused by these portions of
the streets being out of repair, and whether there would not be
an obligation upon them to keep these portions of the streets in
proper order.
Where an act provides that the approaches for 100 feet to and
next adjoining each end of all bridges shall be kept up and main-
tained, it was held, that the word " approaches " means all such
artificial structures as may be reasonably necessary and conven-
ient for the purpose of enabling the public to pass from th» road
on to the bridge and from the bridge on to the road, and does
not include the highway to the distance of 100 feet from each
end of the bridge, at all events, unless the artificial structures
extend so far. (2)
The Act provides that the railway shall not be carried
along an existing highway, but shall merely cross the same
in the line of the railway, unless leave therefor has been
obtained from the railway committee, and that no obstruction of
such highway with the works shall be made without turning the
(1) 14 App. Gas. 417.
(2) Traversy v. Gloucester, 15 O. R. 214.
CONSTRUCTION OF THE RAILWAY. 251
highway so as to leave an open and good passage for carriages,
and on completion of the works, replacing the highway, (i)
It is evident that the provisions of this clause as to obstruc-
tion of •' such highway " must refer to the case of the railway
crossing a highway, and not being carried along it, by permission
of the railway committee. For in certain cases, which may easily
be imagined (and some have actually occurred), the construction
of the railway along a highway would result in the complete or par-
tial blocking of the highway, and even in its being entirely ab-
sorbed by the railway ; which would, of course, make it impossible
to "replace" the highway. This interpretation has been placed
upon similar provisions of the previous Railway Acts, (2) which
differed only from the present Act in that the leave of the proper
local or municipal authority had to be obtained instead of that
of the railway committee. From a very early period in the history
of railway legislation in this country this interpretation has been
adopted, (3) and the legislature, with a presumed knowledge of
the judicial interpretation placed upon these provisions, has
never altered their phraseology, except as above indicated, though
frequently amending the Act in other respects. In a very recent
case (4) the Privy Council refused to interfere with the judicial
interpretation thus placed upon these clauses ; and held that a
railway company was acting within its powers in entirely closing
a city street, by constructing its embankment along it with the
permission of the city council.
This permission need not necessarily be by by-law, (5) nor
even by formal resolution ; it may be implied from the acts of the
municipality, such as the approval of the railway company's
plans, or allowing the works to be completed and used, without
protest. (6)
(1) Sec. 183.
(2) R. S. C., cap. 109, s. 12 ; and acts consolidated thereby.
(3) Regina v. G. T. R. Co , 15 U. C. Q. B. 121 ; in re Day v. The Town
of Guelph, ibid. 126 ; and see Howe v. The H. & N. W. Ry. Co., 3 Ont. A.
(4) Casgrain v. A. & N. W. Ry. Co., u R. May.
(5) Regina v. G. T. R. Co., 15 U. C. Q. B. 121 ; inre Day v. The Town
of Goelph, ibid. 126.
(6) Casgrain v. A. & N. W. Ry. Co., n R. May.; Pembroke v. Can. Cen-
tral Ry. Co., 3 O. R. 503.
252 THE RAILWAY LAW OK CANADA.
After completion of the work of crossing a highway, the same
must be replaced, and no obstruction of the highway shall be
made ; but so long as the rails do not rise above or sink below
the line of the highway more than one inch, they are not deemed
an obstruction, (i) If an accident occurs at the crossing by a run-
away, and the wagon is broken at the crossing, if the rails pro-
trude more than one inch, this is not prima facie evidence of
negligence on the part of the railway company, but it is a ques-
tion for the jury to determine whether such projection of the
rails was the cause of the accident or not. (2)
The general principle to be applied to cases of railways con-
structed across or along highways is that the company is not liable
so long as the railway is properly constructed in accordance with
the provisions of the Act, and without negligence. This is the
same principle which has been already frequently mentioned, and
its application comes up in so many different cases and under such
varied circumstances as to make it necessary to keep it always in
mind. For instance, referring to the particular instance of a railway
constructed along or across a highway, the damage caused to
persons or vehicles by striking against the rails, and being upset
or damaged thereby, would not be recoverable from a railway
company, provided that the rails were laid in accordance with the
provisions of the Act. This doctrine was recognized by the
Quebec Court of Appeals, and confirmed by the Supreme
Court, in a case of Parker v. The Montreal Street Railway
Co. (3) where the driver of a vehicle was injured by the
upsetting of his wagon in consequence of coming in contact
with one of the rails laid by the company in one of the
streets in Monteal. The charter of the company and the
by-laws of the city authorized the railway to be laid with rails
of a particular pattern, which were not to exceed the level of the
street by more than one inch, and both Courts recognized the
principle that if the rails had been laid in accordance with such
by-law, the company would not be responsible for the damage
resulting from the accident ; but the Supreme Court decided, as
a matter of fact, that the rails had not been so laid, and that the
(1) Sees. 183, 184.
(2) Thompson v. The Great Western Ry. Co., 24 U. C. C. P. 429.
(3) 7 L. N. 194, Cassel's Dig., p. 731.
CONSTRUCTION OF THE RAILWAY. 253
weight of the evidence showed that the height of the rails exceeded
the statutory limit.
Another application of this principle may be instanced. A
street railway company was authorized to lay its track " along
the highways in the parish of M." leading into the streets of the
city. It was held, thai the company in laying its track incon-
veniently close to the property on one side of the highway, and
thus apparently favoring the property on the other side, had not
exceeded its powers, and an action for the abatement of the
nuisance was dismissed, (i)
In the line of a ditch formerly running at the side of
the highway, and several feet within the limits of the highway, a
railway company constructed an open culvert of square timber
about five feet deep and seven feet wide. A person walking along
the road fell into the culvert and was injured. The Court held,
that the company were liable for not restoring the highway to
its former state or in a sufficient manner not to impair its use-
fulness. (2)
Provisions are made by sections 185 and 186 as to the dimen-
sions of bridges carrying the railway over highways and the
inclination of the roadway beneath such bridges, and of the ap-
proaches, whether the roadway is carried over, across or under
the railway, and as to the proportion of the cost of providing
for the fencing of such approaches and bridges to be determined
by the Railway Committee. (3)
2. In any event, the construction of the railway along or across Approval of
any street is subject to the condition precedent of the company's Railway
; . . , , -. . . . . , Committee,
submitting a plan and profile of the proposed construction for
the approval of the Railway Committee. And in the case of
railways constructed before the Act, the Committee may require
(1) The Atty. Genl. v. The M. C. P. Ry. & The Trustees of M. Turnpike
Roads, i L. N. 580, S. C. Que., 1878.
(2) Fairbanks v. Great Western Ry. Co., 35 U. C. Q. B. 523.
(3) Where a railway crosses a highway, and the road is carried over the
railway by means of a bridge, the railway company are bound to keep in
repair the roadway upon the bridge ; such roadway being part of the bridge
which the company are to maintain. Lan. & Y. Railway Co.v. Mayor, etc.,
of Bury, 14 App. Cas. 417 (affirming the Court of Appeals) ; and see Van
Allen v. G. T. R. Co., 29 U. C. Q. B. 436.
254 THE RAILWAY LAW OF CANADA.
such plan and profile to be submitted within such time as they
may direct, (i)
The Committee have power to determine the conditions upon
which the construction of the works shall be permitted, or upon
which the use of the works shall be continued in the case of
existing railways, in order to remove or diminish the danger
which might rise from the position of the railway with regard to
the highway. (2) And the Committee may make such orders as
they deem just and reasonable as to works and their execution,
and the apportionment of the cost. (3)
These provisions would appear to apply only to highways
existing at the time uf the construction of the railway, and if
any highway or street is afterwards opened by a municipality,
which is intended to cross the line of the railway, special
application would have to be made to the Railway Committee
to decide the question as to whether the railway company were
bound to make provision for such crossing either on the level or
by means of a bridge or subway. The municipal corporation
could not compel the railway company, except by order of the
Railway Committee, to allow them to construct a road or high-
way across the railway, or any ditch or sewer, water, gas or
other pipes. (4) Previous to the present Act, it would seem
that no such works could be constructed across, over or through
any lands of the Company. It was so decided in Quebec in the
case of The Corporation of the Parish of St. Lib o ire v. The
Grand Trunk Railway Co. (5) as long ago as 1865. There the
municipality, after the railway had been constructed, opened a
new road, and by their proces-verbal, provided that it should
cross the railway at a certain point. On the company refusing
to construct a bridge to carry the road across the railway, they
took action to compel them to do so ; it was held by the Court
of Queen's Bench, confirming the judgment of the Court below,
that the municipality had no right to impose on the railway any
obligation of performing works in relation to public roads, inde-
pendent of those required by the railway itself.
(I) Sec. 187. (2) Ibid.
(3) sec. 188. (4) sec. ii (?).
(5) 16 L. C. R. 198, i L. C. L. J. 54.
CONSTRUCTION OF THE RAILWAY. 255
3. The company are not necessarily guilty of a nuisance be- Bridges con-
cause their bridge, which connects two highways, is not of equal ^ygng g "
width with the street, (i) When the railway passes through a
public highway by a cutting below the level, and the company fail
to connect such highway by a bridge within a reasonable time, the
remedy in such case is by indictment or information ; an indi-
vidual cannot maintain an action in such a case. (2) But where
a corporation had, by their labor and capital, made a plank road,
and were in consequence entitled under an Act of Parliament
to receive tolls upon it, their interest in the road was held to be
apeculiarone and distinct from the common interest which they
would have in it as persons entitled to use it for the purpose of
travelling, and they could therefore maintain an action of dam-
ages against a railway company for neglecting to make, within a
reasonable time, a proper bridge over their railway where it
crossed the plaintiff's road. (3)
4. Section 190 enjoins the erection of signboards at every high- Signboards,
way crossed, and regulates the manner in which it shall be done.
It has happened chat horses becoming frightened at objects on
the track have collided with these sign-posts and caused acci-
dents. In such case the company are not liable, provided they
place them in a reasonably proper manner, with a due regard to
all the surrounding circumstances. (4) The posts would not
necessarily be an indictable nuisance. (5)
Farm Crossings.
Under sec. 191 of the Act, railway companies are bound to
construct farm crossings for persons across whose lands the rail-
way is carried, convenient and proper for the crossing of the
railway by farmers' implements, carts and other vehicles.
It was decided in the Quebec case of The Grand Trunk Ry.Co.
v. JTuard, in appeal, (6) that the Grand Trunk Railway Co. were
(1) Reg. v. Great Western Railway Co., 12 U. C. Q. B. 250.
(2) Ward v. Great Western Railway Co., 13 U. C. Q. B. 315.
(3) Streetsville Plank Road Co. v. Hamilton & Toronto Railway Co.,
13 U. C. Q. B. 600. Hamilton & Brock Road Co. v. Great Western
Railway Co., 17 U. C. Q. B. 567.
(4) Soule v, G. T. R. Co., 21 U. C. C. P. 308.
(5) Ibid.
(6) Q. R., I Q. B. 501.
256 THE RAILWAY LAW OF CANADA.
governed, in the matter of crossings, by the Railway Clauses Act
of 14 and 15 Vic., ch. 51, which was incorporated in its charter,
1 6 Vic., ch. 37, and that by that Act it was undoubtedly incum-
bent uoon the company to construct farm crossings, the court
deciding that such crossings must be made for each lot of land
traversed, whether or not such lots were subdivisions of lands
originally expropriated.
It was also there held that the compensation made at the time
of the expropriation of the original lots of land could not be re-
garded as covering indemnity for lack of crossings upon future
subdivisions of the lots. In the absence of an express agreement
to that effect railway companies are not compelled to construct
farm crossings unless required to do so by statute, (i) But it is
now well settled that where the statutes, as in this country, pro-
vide for such crossings, the proprietor of lands severed by the
railway is entitled to the necessary crossings reasonably sufficient
for the beneficial enjoyment of his property, the nature and
number of such crossings to be determined by the court or upon
a reference. (2) But where the cost of a subway or undercross-
ing would be entirely disproportionate to its value and the
value of the property, the company would not be compelled to
construct. (3) The language of the present Act is different from
that of the several Acts under which the cases of Canada Southern
Railway Company v. Clause, (4) The Queen v. Vezina, (5) and
Brown v. The Toronto & Nipissing Railway Company (6) were
decided ; and the reasoning in those cases, as to the obligation
of the railway company to construct crossings in the event of
a future sub-division of the land after the construction of the
railway, would hardly seem to apply to cases under the present
Act. The decision in the case of 2 he Grand Trunk Ry. Co. v.
, (7) recognizes the existence of such an obligation though
(1) See DeBlois v. The Queen, I P. E. I. Reports 434. Mills Em.
Domain, § 213 ; Vezina v. The Queen, 17 S. C. R. I.
(2) Can. Southern Ry. Co. v. Clouse, 13 S. C. R. 139 ; Can. Southern
Ry. Co. v. Erwin, 13 S. C. R. 162.
(3) Ibid.
(4) Supra.
(5) 17 S. C. R. i.
(6) 26 U. C. C. P. 206.
(7) Q. R.,iQ. B. 501.
CONSTRUCTION OF THE RAILWAY. 257
under another Act ; as would also the decision in the Canada
Southern case, (i) while The Queen v. Vezina would seem to
deny it. But in the latter case the Court held that there was
no statutory obligation to construct farm crossings over govern-
ment railways. While an argument in favor of the latter view
may be founded upon the use of the word "carried " in section
191, as implying the progress of construction of the railway
across the lands, and that the obligation of the company being
confined to making crossings for those persons only across whose
lands the railway is carried, there is no such obligation towards
a person acquiring land on both sides of the railway after it has
been constructed, because the railway would not be carried over
his land, yet the section seems equally susceptible of the more
liberal and equitable construction that all persons whose lands are
severed by the railway, whether acquiring the lands in their origi-
nal state or as subdivided after the construction of the railway,
should be entitled to such crossings as would enable them to have
the beneficial enjoyment of their lands on both sides of the
railway.
The question has given rise to much controversy in the United
States, where, under the constitution, no person's property could
be taken from him, except for purposes of public utility and upon
payment of indemnity. (2) The latest decision holds that there
is no " taking " in such a case, so as to bring it within the mean-
ing of the constitution. (3) In the Illinois Central Ry. Co. v.
Willenborg, (4) it was held that the statutory regulations in regard
to fencing railway tracks, and the construction of farm crossings
for the use of adjoining land owners, are police regulations, in the
strict sense of those terms, and apply with equal force to corpor-
ations whose tracks are already built as well as those thereafter
constructed.
According to this holding, the Railway Act of 1888 would
apply, in respect to the construction of crossings, to all railroads
previously constructed, even to those which were previously not
(1) 13 S. C. R. 139, 162.
(2) Cf. Que., C. C. 407.
(3) Chicago & N. W. Ry. Co. v. City of Chicago ; Supreme Court of Illi-
nois, 1892 ; 24 Chicago Legal News 186.
(4) 117 111.203.
258 THE RAILWAY LAW OK CANADA.
required by their charters or general act to construct crossings.
The Act of 1888 would in fact be retroactive.
In the Quebec statute the provision is that " farm crossings
shall be made and maintained by the company upon the appli-
cation of any owner of land, present or future, on each such
land." (j) Patterson J. in Vezina v. The Queen characterizes
this enactment as somewhat vague, and that the English version
is not a very happy translation of the French. (2)
Where the company are bound to construct crossings, they
must be made within a reasonable time after the commencement
of construction at the point required, and during the period of
construction. Where, during a period of two years, the company
had failed to connect the severed portions of the plaintiffs' lands,
it was held that the damages suffered by the latter in conse-
quence could not be regarded as compensated for by the original
indemnity which released the company of "all claims and de-
mands whatsoever that they (the plaintiffs) might have against
the said company for the loss of occupation of the premises in
question, and generally of all rights and privileges resulting in
their favor, with respect to the portion of said farm required by
said company for their railway." (3)
But it would appear that in Quebec, at least, no damages could
accrue where no time for z t i cting the crossing is mentioned
in the deed of sale, until the company are put in default ; and
that when no damages are proved to have been suffered by plain-
tiff after the company has been put in default, an action of dam-
ages will be dismissed. (4) Where, however, the statute alone is
relied upon for a crossing, it has been held in Ontario that the
company are bound to construct it without unreasonable delay,
and without request on the part of the Ind owner. (5)
The land owner has not an arbitrary right to prescribe the place
where the crossing is to be located, neither have the company an
(1) 43-44 Vic., ch. 43, s. 16.
(2) 17 S. C. R., p. 27. As to abandonment of right to a crossing by sale
of land on one side of the railway, see Midland Ky. v. Gribble, 12 R., Nov.
P'(l7)' Smith v. Atl. & N. W. Ry. Co , M. L. R., 5 S. C. 149-
(4) Crevier v. The Ontario & Quebec Ry. Co., 35 L. C. J. 58 In On-
tario see Shaver v. Great Western Ry. Co., 6 U. C. C. P. 321.
(5) Burke v. The Grand Trunk Ry. Co., 6 U. C. C. P. 484.
CONSTRUCTION OF THE RAILWAY. 259
arbitrary right to fix the place without any legard to its conven-
ience or usefulness to the land owner, (i) The company are
perhaps generally the best judges of the most suitable location
for a crossing, for, as said by Jervis C. J., in York & North Mid-
land Ry. Co. v. The Queen, (2) " By leaving the exercise of the
powers to the option of the company, the legislature adopts the
safest check upon abuse, — self-interest."
Farm crossings include passages across and upon the railway
itself, a bridge over, or a tunnel under the railway ; (3) unless
the latter would be disproportionate in cost to the value of the
lands. (4)
A mandamus will not lie to compel a railway company to per-
form a statutory obligation, such as the obligation to construct
crossings, there being an adequate remedy by ordinary action. (5)
Bridges, Tunnels; Etc.
Sec. 192 regulates the headway to be maintained between the
tops of freight cars and the overhead structure of bridges,
tunnels, etc., through which the railway passes, viz., 7 ft. clean
And by sub-section 2, no higher cars are to be used until bridges
are raised to correspond with the increased height of the cars.
Where a railway company raise a municipal bridge passing over
their railway and also the approaches thereto, as required to do
by sub-section 4, of section 192, without obtaining the consent
of the municipality or the owner, they are liable to the adjoining
proprietor for the damage sustained by him by reason of the
increased height of the highway as it approaches the bridge.
(6)
The Governor in Council may exempt companies from the
operation of this section (192) where air-brakes are used, or
otherwise. (7) Trains may only run over a bridge, when such
bridge is constructed and maintained with safe-guards approved
(1) Burke v. G. T. R., 6 U C.'.'. I'. 488 ; in re Reist v. Grand Trunk
Ry. Co., 12 U. C. Q. B. 675 ; ibid. 6 U. C. C. P. 423.
(2) i E. & B. 865.
(3) Burke v. G. T. R,, 6 U. C. C. P. 488 ; Reist v. G. T. R, ib. 423.
(4) Canada Southern Ry.z'. Clouse, 13 S. C. R. 140.
(5) Dubuc v. Montreal & Sorel Ry. Co., 7 L. N. 5 ; C. R. Que. 1883.
(6) Hill v. G. T. R., 12 L. N. 57, S. C. Que. 1888.
(7) Sub-sec. 5.
260 THE RAILWAY LAW OF CANADA.
by the Minister of Railways, (i) six months delay being given to
conform to these requirements in the case of bridges already con-
structed. (2)
Where a railway company take over another railway under an
agreement to be in force twenty-eight years, and at the time of
taking over the latter is in default under section 193, and an
accident happens, in consequence, to a conductor, the company
operating the road over the leased line are not liable, as they are
not the owners of the bridge causing the accident, (3) the statute
enacting that " such bridge shall be constructed, recon-
structed or repaired at the cost of the company, or of the munici-
pality or other owner of the bridge." (4)
Trains must stop before passing a swing bridge. (5) And
this section is amended by 55-56 Vic., c. 27, by making an excep-
tion in the case of interlocking switches at such bridges.
Fences and Catties Guards.
The liability of a railway company to fence arises by statute
only. There is no common law liability to fence, either as res-
pects the highway or as respects adjoining proprietors. (6)
The obligation to fence the railway under the present Act is
confined to the cases where the railway runs through a town-
ship, the municipal corporation for which has been duly organ-
ized, and which has been surveyed and subdivided into lots for
settlement in whole or in part, with a proviso as to New Bruns-
wick, Nova Scotia, and Prince Edward Island, for the protection
of improved or occupied lots of land, wherever a county muni-
cipality has not been subdivided into local municipalities. (7)
There is a curious omission here as to the Province of Quebec,
where there are many counties completely settled and organized
which are not divided into townships, and where the municipal
(1) Sec. 193.
(2) Ibid.
(3) McLauchlin v. Gran 1 Trunk Ry. Co., 12 O. R. 418.
(4) Ry. Act, sec. 192, sub-sec. 3.
(5) Sec. 255.
(6) I Redfield, p. 491 ; Pierce,4Oi; Wood, p. 1543; McMillan v. Man.
& N. W. Ry. Co., 4 Man. 220; \Yestbourne Cattle Company v. The
Manitoba & N. W. Ry. Co., 6 Man. 553.
(7) Sec. 194.
CONSTRUCTION OK THE RAILWAY. 261
laws clearly distinguish between a township and a parish muni-
cipality. The point was taken in a Quebec case, where the rail-
way ran through a parish municipality in a county where there
were no townships, that this section could not apply, and that
the liability of the railway company for failure to fence must be
governed by the provincial and municipal laws. But the courts
refused to entertain the distinction sought to be made, and de-
termined the company's liability under the section of the Dom-
inion Act. (i) The whole section is loosely drawn, and unsatis-
factory. Why the provision in favor of occupied or improved
lands in counties where there are no local municipalities should
be applicable to the Lower Provinces, and not to the other Pro-
vinces, is difficult to understand. Under the former Railway Acts
the obligation to fence was dependent upon the company being
required so to do by the proprietors of the adjoining lands, (2)
but was not confined to lands in organized townships. And
though the obligation may be considered broader in a way
under the present Act, as being an obligation to fence off the
railway, generally, as to the whole public, and not merely as
to any adjoining proprietor who may demand the fence; yet it
is not really so, as an adjoining proprietor, even of an improved
and cultivated piece of land, is deprived of the right to have his
property fenced from the railway, unless he resides in an organ-
ized township, or in the Lower Provinces.
The intention of the amendment to the Act was doubtless to
widen the responsibility of railway companies in cases of cattle
getting upon the track from adjoining lands, and being killed or
injured by passing trains. But notwithstanding this amendment,
and the amendments to the sub-sections governing the com-
pany's liability in such cases, the current of jurisprudence has
been almost unchanged on this question, as will be seen on
reference to the chapter on this question. (3)
The fences to be constructed must be of the height and
strength of an ordinary division fence, (4) with gates, or bars, or
(1) Campbell v. G. T. R. Co., Q.R. 3, Q.B. 570.
(2) R. S.C., cap. 109, sec. — .
(3) lnfra P- I3-
(4) A fence jijppnposed of 4 strands of barbed wire only 3^ feet high,
with posts 12 to 14 feet apart, is insufficient. Landry v. North Shore Ry.
Co., 9 L. N. 5.
262 THE RAILWAY LAW OF CANADA.
sliding or hurdle gates of sufficient width, with proper fastenings,
at farm crossings, (i) and cattle guards at highway crossings,
suitable and sufficient to prevent cattle and other animals from
getting on the railway. (2)
Under section 197, as amended by 55-56 Vic., cap. 27, at
every level crossing the fences on both sides of the crossing and
of the track must be turned in to the cattle guards, so as to
allow the safe passage of trains.
It has been held, under the Ontario statute, 46 Vic. , c. 1 8, s. 490,
sub-sections 15-16, which seemed to sanction barbed wire fences,
and empowered municipalities to provide against injury result"
ing from them, that when constructed by a railway company
upon an ordinary country road along the line of their railway,
they could not be treated as a nuisance, no by-law of the locality
in which the accident complained of in this case having been
passed respecting fences of the kind. (3)
The obligation to maintain fences on each side of the track
involves the duty of a continuous watchful inspection, and the
company must take notice of their state at all times. (4) They
are not entitled to notice of their being out of repair. (5)
By section 198, gates at farm crossings are to be kept closed
by the persons for whose use they are furnished. And section
199 provides penalties for wilfully leaving them open, or taking
down any part of the fence ; besides imposing liability for
damages thereby caused. (6) But where the fastenings of such
gates are deficient, and in consequence cattle stray on to the
track and are killed, the plaint iff cannot be deemed to have adopt-
ed them as sufficient, by reason of his frequent use of them, (7)
and section 198 does not render it any less the duty of the com-
pany to provide and maintain proper fastenings for gates, as
(1) Hurdle gates merely held in position by their own weight, without
pins or other fastenings, are not in compliance with the statute. Vernon v.
G. T. R. Co., 9 L. i\. 203 ; M. L. K., 2 S. C. 181.
(2) Sec. 194.
(3) Hillyard v. Grand Trunk Ry. Co , 8 O. R. 583.
(4) Studer v. Buffalo & Lake Huron Ry. Co., 25 U. C. Q. B. 160.
(5) Ibld-
(6) Apart from this provision of the statute, see Wood, p. 1544 ; Pierce,
402 ; i Redfield, § 128; and Rocheleau v. St. Lawrence & Atlantic Ry. Co ,
2 L. C. R. 337.
(7) McMichael v. Grand Trunk Ry. Co., 12 O. R. 547.
CONSTRUCTION OF THE RAILWAY. 263
they are bound to do by section 194. (i) The company are
only excepted from liability for accidents so long as the gates,
having been properly constructed in the first place, are properly
maintained. (2)
It would appear that section 198, when it applies, imposes no
greater responsibility upon the land owners to keep the gates
closed than in respect of their own use of them. (3) But where
a proprietor allows a private road across his land, and the gate
opening from it to the railway to be used by the public, he is
responsible for the acts of persons using the road, and the rail-
way company is not responsible for the killing of animals getting
on to the railway through the gate being in bad condition owing
to such bad use. (4)
Intersection of Railways.
By section 173 of the Act of 1888, the crossing of one railway
by another can only be made with the approval of the Railway
Committee, and this section has been amended by c. 27 of
56 Vic. to include street railways of all kinds. In oiher respects,
such as ordering necessary apparatus to be adopted, (5 ) appor-
tioning expenses of carrying out such orders, when the com-
panies interested fail to agree (6) the Railway Committee have
jurisdiction.
Section 257, requiring that an officer shall be stationed at every
point where t\vo railroads cross each other at rail line, has been
amended by 56 Vic., c. 27, to provide for the case of street rail-
ways crossing the railway track, and in such case the conductor,
before crossing, must go forward and ascertain whether the track
to be crossed is clear.
All trains are to stop one minute before crossing the track of
another railway, unless when at the crossing an interlocking
switch and signal system or other device, which has the approval
of the Railway Committee, is in use. (7)
(1) McMichael v. Grand Trunk Ry. Co., 12 O. R. 547.
(2) Sec. 196.
(3) McMichael v. G. T. R., 12 O. R., p. 556, opinion of Armour, J.
(4) Jasmin v. C.P.Ry. Co., 6 L. N. 163.
(5) Sec. 175. (6) Sec. 176.
(7) Sec. 258, amended by 56 Vic., cap. 27.
264 THE RAILWAY LAW OK CANADA.
Where railways under provincial charters intersect with Domi-
nion railways, such provincial railways are under Dominion
jurisdiction in respect of all matters affecting such crossing or
junction, (i) And by sec. 4 of The Railway Act, it is provided
that all the provisions of the Act relating to railway crossings
and junctions. apply to all persons, companies and railways,
whether otherwise within the legislative authority of Parliament
or not.
Now, it will be noticed that section 3 of The Railway Act ex-
cepts government railways from its operation, but section 4
makes no such exception in regard to or mention of government,
railways ; and it has been held in Canadian P acific Railway Com-
pany v. Northern Pacific & Manitoba Railway Company, (2)
that whether a provincial railway is constructed as a public pro-
vincial work, or as the work of an incorporated company, the
Dominion Parliament has power to provide that such railway
shall not cross or make a junction with a Dominion railway with-
out first making application to the Railway Committee of the
Privy Council of Canada. It is not sufficient merely to make
the application, but the consent of the Railway Committee must
also be obtained. (3)
It would appear that application must also be made to the
Provincial Commissioner of Public Works as well as the Domi-
nion Railway Committee. (4)
The decision of the Railway Committee upon all questions sub-
mitted to them under the Act is final (5), but they may review,
or rescind, or vary any decision or order previously made. (6)
Besides the means provided by way of penalty of enforcing their
decisions or orders, it is provided by section 17 of the Act that
any of their decisions or orders may be made an order of the
Exchequer Court or of any Superior Court of the Provinces, and
can be enforced as any rule or order of the Court could ordinarily
be. In order to come to their decision, the Committee have
power to make an inquiry and to enforce the attendance of wit-
(i) Sec. 177. (2) 5 Man. 301. (3) 5 Man. 301.
(4) Credit Valley Ry. Co. v. Great Western Ry. Co., 25 Grant's Chy. 507 ;
and see Can. Pac. Ry. v. North. Pac. & Man. Ry. Co., 5 Man. at page 313-
314.
(5) Sec. 21. (6) Sec. 18.
CONSTRUCTION OF THE RAILWAY. 265
nesses before them, and to compel them to give evidence and
produce books, papers, etc.; (i) and the Committee or the
Minister of Railways may appoint any person to make an inquiry
and report upon any questions submitted to them, and the person
so appointed, whether an engineer, commissioner or otherwise,
has also the same power to compel the attendance of witnesses,
and the giving of evidence, etc. (2) If the Committee think
fit, they may, upon the request of any party upon security being
given for costs, etc., state a case for the opinion of the Supreme
Court, upon any question which the Committee may think in-
volves a point of law. (3) And the Supreme Court is bound to
determine any question of law so submitted, and give their
opinion to the Committee. (4) While the decision of the Rail-
way Committee is declared final, it is also provided by section
2i, that any party aggrieved by any decision or order of the Com-
mittee may petition the Governor-in-Council, who may in his
discretion rescind, change or vary such order as he deems just
and proper. Although it is not likely that the whole council
would, without grave cause being shown, advise the Governor to
rescind an order of a Committee composed of certain of its mem-
bers, still, no doubt the object of this provision of the Act is to
give either party an opportunity of having the opinion of the
whole of the Privy Council upon the questions submitted.
The right of reference to the Supreme Court on a question of
law has very seldom been exercised ; but one striking instance
of it may be mentioned of the celebrated Manitoba Railway
Crossings case. (5) There the Railway Commissioner of Man-
itoba was authorized by a local statute to construct a railway
from Winnipeg northwards, crossing the main line of the C. P. Ry.
The latter company contested the right to cross its railway, and
on an application being made to the Railway Committee, the
point was raised that such a line connecting with or crossing
its main line could not be constructed under the Provincial Act,
as it was a work under the exclusive jurisdiction of the Parlia-
(I) Sec. 13. (2) Sees. 12 and 13.
(3) Sec. 19. (4) Sec. 20.
(5) On an application by the Railway Commissioner of Manitoba, with
reference to the Red River Valley Ry. Co., dated loth Sept., 1888, Cassel's
Dig. 487.
266 THE RAILWAY LAW OF CANADA.
ment of Canada, and that the Act of the Legislature of Manitoba
authorizing the construction of the local railway was unconstitu-
tional. The Railway Committee granted a icference to the
Supreme Court upon this question of law, and the Court gave
the opinion that the Act of the local Legislature was constitu-
tional, and within the powers of that body, and that the crossing
could be legally made. As is usual on such reference, the
Supreme Court gave no reasons for their opinion, and it is
therefore impossible to say upon what grounds it was based ; but
the question at issue was partly a constitutional one, and partly
one depending upon the construction of the special Act incor-
porating the C. P. R. Co.
Prescription or Limitation of Actions.
There has been much controversy and divergence of opinion
relative to sec. 287 of the Railway Act and corresponding sections
of Provincial Acts. Under this section all actions or suits for
indemnity for any damages or injury, sustained "by reason of
the railway," must be commenced within on; year next after the
time when such supposed damage is sustained, or if there is con-
tinuation of damage, within one year next after the doing or
committing of such damage ceases, and not afterwards. It also
provides that the Company may plead the general issue, and give
this Act, and the special Act, and the special matter in evidence
at any trial to be had thereon, and may prove that the same was
done in pursuance of and by the authority of the Act or of the
special Act.
It has been urged on the one hand that the words of this sec-
tion are so general in their terms as to include every species of
damage or injury which might be caused either by the construc-
tion or the operation of the railway, and equally strenuously
urged on the other hand, that the intention of the legislature was
to confine the limitation to cases of damages or injury resulting
from the construction of the railway itself, limiting the meaning
of the words " by reason of the railway " to their narrowest
sense, — that is to say, damages caused by reason of the railway
and not by the running of the trains upon it. In Ontario, the
wider interpretation has been adopted by the highest courts in
CONS7 RUCTION OF THE RAILWAY. 267
that province, and actions for injuries to person and property sus-
tained as a result of the working of the railway have been held
to be subject to the limitation imposed by this section ; while in
the Province of Quebec the jurisprudence seems to be inclined
in the opposite direction, namely, to confine the meaning of the
section, and similar section?, to cases of damage caused by the
railway itself, — that is, by the construction of the railway and
works in connection therewith, (i) The latter view has been
sustained in the Supreme Court, in the case of McWillie v.
The Grand Trunk Railwiy Co., (2) where, in an action taken
against the company for damages caused to buildings by fire
communicated by sparks from the locomotive, the company
pleaded the statutory limitation, and it was held by the Quebec
Court of Appeals, and maintained by the Supreme Court, that the
limitation did not apply in such a case, the loss being caused by
negligence in the operating and running of the trains, and the
intention of the statute being to fix a limitation upon the com-
pany's liability only in case where the loss occurred by reason of
the railway without negligence.
It was stated by Gwynne, J., in the last mentioned case, (3)
that the language of the last part of the section shows thit what
is meant is damage done by the railway itself, and not by reason
of the default or neglect of the company owning the railway, or
of a company having running powers over it, by reason of in-
sufficiency in the construction of the engines used, or of negli-
gence in the manner of running them upon the railway.
The vaiious holdings of the Ontario courts as well as some of
the other provinces may be illustrated by the following cases :
'1 he careless handling of machinery by railway servants, result-
ing in damage thereto, is not " damage or injury sustained by
reason of the railway ;" (4) but injuries .received through a
collision are. (5) Any damage done through negligence upon
(1) Marshall v. G. T. R. Co., i L. C.J. 6; Boucherville v. G. T. U. Co.,
I L. C.J. 179 ; Germain v. Montreal & New York Ry. Co., 6 L. C. R.
172 ; Pigeon v. City of Montreal, 9 L. C. R. 334, 3 L. C. J. 294 ; Marche-
terre v. O. & Q. Ry. Co., M. L. R., 4 S. C. 397.
(2) M. L. R., 5 Q. B. 122, 13 L. N. 217, 17 S. C. R. 511.
(3) 17 S. C. R.,at p. 514.
(4) Whitman v. Western Counties Ry. Co., 5 Russ. & Geld. 405, Nova
Scotia, 1884.
(5) Conger v. G. T. R , Com. Pleas. Div., 13 O. R. 160, 1887.
268 THE RAILWAY LAW OF CANADA.
a railway in the carriage of passengers and the like is damage
done "by reason of the railway." (i) Where defendants had
negligently allowed dry wood to accumulate on the railway, which
took fire from sparks dropped from defendants' locomotives, such
was held to be damage sustained by reason of the railway. (2)
Where the defendants neglected their statutory duty to construct
fences, whereby cattle got on the line of their railway, and from
thence on to the plaintiff's land, doing damage there, such damage
was held to be damage by reason of the railway. (3) The railway
limitation clauses do not apply to damages arising from the loss
of baggage ; they apply only to actions for damages occasioned
by the company in the execution of the powers given, or
assumed by them to be given, for enabling them to maintain
their railway. (4) Where the plaintiff, who was lawfully on the
street, was obliged, through the careless driving of a street car,
to save himself by jumping into a drain, and was hurt ; it was held,
that the injury was sustained by " reason of the railway." (5)
Such limitation clauses protect the railway company in an action
for a collision at a railway crossing by which the plaintiff was in-
jured, and which was caused by the neglect to ring the bell or
sound the whistle on the locomotive. (6) Where a railroad
company enter lands and cut down trees for the purpose of
making their roadway, without previously assessing and paying
compensation, they are not thereby barred from the protection
of the limitation clause in the Railway Act. (7)
Since the decision of the McWillie case, however, it has been
recently held by the Ontario Court of Appeal, (8) that where a
person was killed by a fall from a bridge, part of a highway,
which crossed the defendant's line, and had been negligently
allowed by them to be out of repair, this was not " damage sus-
(1) May v.O. & Q. Ry. Co., Q. B. D. 1885, 10 O. R. 70.
(2) McCallumw. G.T.K., 31 U. C. Q.B. 527.
(3) Brown v. G. T. R., 24 U.C.Q.B. 350.
(4) Anderson v. C. P. R., 17 O. R. 747, confirmed in Appeal, 17 O. A.
R. 480 ; Roberts v. Great Western Ry. Co., 13 U. C. Q. B. 615, followed.
(5) Kelly v. Ottawa Street Ry. Co., 3 O. A. R. 616 (1879). Following
Auger v. Ontario, etc., Ry. Co., 9 U. C. C. P. 164 ; Brown v. Brockville
& Ottawa Ry. Co., 20 U. C. Q. B. 202.
(6) Il>. and see May v. Ont. & Que. Ry. Co., 10 O. R. 70,
(7) McArthur v. Northern Pacific Junctio i Ry. Co., 17 Ont. App.86.
(8) Zimmer v. Grand Trunk Ry. Co., 1892, 19 O. A. R. 693.
CONSTRUCTION OF THE RAILWAY. 269
tained by reason of the railway," and that the limitation clauses
of the Railway Act, sec. 287, did not apply.
The true view would seem to be that the limitation should
only apply in cases where the damage is strictly by reason of
the railway, within the literal meaning of those words ; on the
principle that all short limitations, being exceptions to the general
or common law, should be interpreted strictly against those in
whose favor they are made, and that in all cases of injury caused
by negligence in the working or operation of the railway, the
right to recover damages should be governed by the limitations
or prescriptions established in ordinary cases of negligence.
As to continuation of damages, the Supreme Court has recent-
ly held, that where a railway company entered upon the land of
an adjoining proprietor, and, by the making of excavations there-
on, destroyed a right of way over the land in favor of a third
party, the latter' s right of action was extinguished by the lapse
of one year from the date when the work of excavation ceased,
(i) This decision would seem to conflict with previous holdings
of the Ontario Courts in the cases of The Township of Brock v.
Toronto & Nipissing Railway Company ; (2) and Beard v.
Credit Valley Railway Company ; (3) where it was held, that
a similar section of the Ontario Act did not apply to the case of a
railway company wrongfully taking earth from the plaintiff's land.
Where there is a continuance of the act causing the damage,
the courts in Ontario have held that the action can only be
maintained for the damage accruing during the limited period
previous to the institution of the action. (4)
(1) Kerrz/. A. & N. W. Ry. Co., Sup. Ct. 1895 ; and see Barley Main
Colliery Co. v. Mitchell, 1 1 App. Cas. 127 ; Knappz/. G. W. R. Co., 6 U. C.
C. P. 187 ; and Grenier v. City of Montreal, 25 L. C. J. 138 (contra} ;
Renaudz'. City of Quebec, 8 Q.L.R. 102 {contra).
(2) 37 U. C. Q. B. 372.
(3) 9 O. R. 616.
(4) Cameron v. Ont., Simcoe 6° Huron Ry. Co., I4U.C.Q.B. 6l2;
Patterson v. G. W. R.Co.,8 U. C. C. P. 89 ; Van Home v. G. T. R. Co.,
18 U. C.Q.B. 356 ; McGillivray v. G. W. R. Co., 25 U. C. Q. B. 69 ; and
in Quebec, see Corp. of Tingwick v. G. T. R. Co., 3 Q. L. R. 1 1 1.
Opening of
the railway
for traffic.
CHAPTER IX.
OPERATION OF THE RAILWAY.
10. Collection of tolls.
ir. Passengers — Payment of fare.
12. Ejectment for non-payment.
13. Tickets issued on conditions.
14. Coupon tickets.
15. Jurisdiction and cause of action.
16. Measure of damages for eject-
ment.
17. Enforcing payment of tolls for
carriage of goods.
1 8. Obligation to carry.
I. Opening of the railway fir
traffic.
z. Railway out of repair.
3. Liability as carriers before
opening.
4. Tolls.
5. Undue discrimination.
6. Traffic arrangements.
7. Facilities to Express Companies.
8. 1 oils — Approval by Governor in
Council.
9. Fractions of distance and weight.
1. Before the railway can be opened for traffic, or for the
public conveyance of passengers and goods, certain formalities
are required to be observed under the Act. One month's notice
in writing of the intention to open the railway for public traffic
must be given to the Minister, and not until ten days after
notice in writing is given of the time when the railway, or a
portion of the railway, will be, in the opinion of the company,
sufficiently completed for the safe conveyance of passengers
and ready for inspection ; (i) and the company is liable to a
penalty of $200 for every day within which the railway or any
part of it remains open without such notice, and until the notices
have been given and the time expired. (2)
On the receipt of the notice, the Minister of Railways is
bound to direct one or more engineers to examine the railway
and all its branches, culverts, tunnels and road crossings and
its works generally, and also all its rolling stock and engines,
and the Minister has power to stop or postpone the opening of
the railway, according to the report of the inspecting engineer; —
(i) Sec. 200.
(2) Sec. 201.
OPERATION OF THE RAILWAY. 271
that is to say, if, in his opinion, the opening of the railway would
be attended with danger to the public, either by reason of the
works being incomplete or the rolling stock and other establish-
ment of the railway being insufficient, — this, however, only with
the sanction of the Governor General in Council ; and the
postponement can only be for one month at a time, but may be
postponed from time to time, according to the report of the
engineer after further inspection. It is only after it is shown to
the Minister that the opening of the road can take place without
danger to the public that the railway can be opened for public
traffic, (i) There is also a penalty of $200 imposed on the
railway company, in the case of their opening their railway for
traffic contrary to the order of the Minister ; (2) but this order
is not binding on the company, unless a copy of the report of
the inspecting engineer is delivered to them with the order. (3)
2. If any part of the railway is out of repair, such as any bridge Railway out
embankment, culvert or tunnel, or if any of the rolling stock is0
in such state as to be dangerous to the public, the Minister, on
receipt of information to that effect, may appoint one or more
engineers to examine the railway, or the part out of repair, or
any of the rolling stock, etc., and upon his report, may condemn
the railway, or the part complained of, or any of the rolling stock,
and, with the approval of the Governor in Council, may order
any change or alteration in any part of the railway or the
substitution of a bridge or viaduct or tunnel, as the case may be,
or any material for the roadbed ; and the company must, afier
notice to that effect, make good any defects in their roadbed or
in their rolling stock which has been so condemned, as required
by the minister, (4) and these provisions with regard to the road
being out of repair apply also to the state of repair in which any
level highway crossing may be. (5) The minister has also
power, as has the inspecting engineer, to regulate the speed of
the trains, and the number of trains run on the railway, or any
part of the railway, until such repairs have been made as he
thinks prudent ; and in default of complying with any order of
the minister or inspecting engineer in that behalf, the company
(i) Sec. 202. (2) Sec. 203.
(3) Sec. 204. (4) Sec. 205.
(5) Sees. 206, 207, 208.
272
THE RAILWAY LAW OF CANADA.
Liability as
carriers
before
opening.
will incur for every act of non-compliance the penalty of $2000.
(i) And, in fact, the running of trains may be entirely pro-
hibited over either the whole railway or any part of it, if the
inspecting engineer thinks it would be dangerous to continue
the running of trains, until such alterations or repairs are made,
either in the road bed or the rolling stock ; and he may compel
compliance on the part of the company by serving them with a
notice in writing ; and in case of the company disregarding
such notice, they are liable to a similar penalty of $2000. (2)
The Governor in Council, however, has always power to modify
or disallow the order of the inspecting engineer. (3) These
are the terms and conditions upon which a railway may be
opened for traffic, and upon which its operation may be carried
on, and the safety of the public in using the railway is protected
by these provisions of the Act, so that no railway shall be open
for traffic, nor, after being opened, shall be continued for traffic,
without careful inspection by a Government engineer, and with-
out the approval of the Governor in Council.
3. And it may be well to point out here that until the railway
is so open for public traffic, the company are not subject to the
liabilities of common carriers, unless they have invited the public
to travel on their road, or have held out their road as open for
public traffic for the conveyance of either passengers or goods.
It often happens that in the course of the construction of the
railway, and before it is open for public traffic, certain persons
are conveyed over the railway by the company on special terms.
Such persons, however, cannot hold the railway company liable
as common carriers, unless it is shown that the railway company
have undertaken to carry the public generally or their goods. It
was so held by Mr. Justice Davidson in charging the jury in the
case of Macrae v. The C. P. Ry. Co., (4) where the railway
was not yet open for public traffic, but the company was in the
habit of carrying certain classes of persons on certain special
terms. The railway there was under construction, and trains
were run not on any scheduled time, but for the convenience of
the contractors and of the company itself; and by special per
( i) Sec. 209.
(3) Sec. 211.
(2) Sec. 210.
(4) M. L. R.,4Q. B. 191.
OPERATION OF THE RAILWAY. 273
mission of the superintendent of construction individuals were
allowed to pass up and down the railway, and even to have their
goods carried on its trains. The plaintiff there had no such
special permission to travel on the railway, and having been
allowed by the conductor of a construction train to travel a cer-
tain distance, ard being discovered on the train by the superin-
tendent, was put off with his baggage upon the order of the
superintendent, and the learned Judge charged the jury that in
that case the railway company could not be looked upon as com-
mon carriers, and had the right to make such regulations as they
chose with regard to the persons and goods that they would
carry, and if they found that the railway was not open for public
traffic, the plaintiff had no right as one of the public to travel
upon the company's trains.
4. Supposing the railway to be open for public traffic, the com- Tolls,
pany carry passengers and goods for a certain remuneration,
which is called by the Act a toll. These tolls, in the absence of
any special provision in the charter of the company, are fixed
either by the by-laws of the company or by the directors, if au-
thorized by the by-laws to do so. (i)
5. These tolls may be either for the whole extent of the rail- Undue discri-
way, or for any part of it; but it is provided by the Act that ruination,
they shall always under the same circumstances be charged equal-
ly to all persons, and at the same rate, whether per ton, per mile
or otherwise, in respect of all passengers and goods and railway
carriages of the same description, and conveyed or propelled by
a like railway carriage or engine pass-ing over the same portion
of the line of railway ; and also that no reduction or advance in
the tolls shall be made, either directly or indirectly, in favor of
or against any particular company or person travelling upon or
using the railway. (2) The exact language of the Act is here
(1) Sec. 223.
At common law, a earlier was only bound to carry in accordance with his
profession, and at reasonable rates. He was not bound to charge all his
customers the same rate, as long as the late charged was reasonable The
fact that in some cases a lower rate was charged was evidence that the higher
rate was umeasonable, but it was not more than evidence. Gt. West. Ry.
Co. v. Sutton, L. R., 4 H. L. 226, 237 ; Scott v. Midland Ry. Co. of Canada,
33 U. C. Q. B. 580, 595.
(2) Sec. 224.
1 8
274 THE RAILWAY LAW OF CANADA.
given, for this question of discrimination in tolls is a very difficult
one. 'I he evident object of the Act is to prevent the railway
company from favoring any particular person or company in the
rate of freight that may be charged for the carriage of their
goods. It must be observed that to constitute a case ot undue
discrimination, the rate charged must be always under the same
circumstances; and where the circumstances differ, there is no
doubt that the railway company would have the right to charge
a different rate, either for the carriage of goods or of persons.
For instance, it is well known that railway companies have the
right to charge different rates of fare in the case of an ordinary
traveller making a single trip to one point, and in the case of a
traveller making a return journey to the same point, and back
again ; and carrying the principle further, it is the invariable prac-
tice to allow a reduction in rate, or commutation, as it is called,
in the case of travellers continuously using the same portion of
the railway during certain seasons or throughout the whole year.
The circumstances there differing, the company have the right to
make a reduction in favor of persons who use that portion of the
railway more frequently than others, in consideration of their
paying in advance for a number of trips. Again, in the case of
certain classes of travellers using the railway for the purpose? of
their trade or business, special rates are allowed them,
under special conditions, limiting the liability of the railway
company. These principles are recognized to some extent by
sec. 225 of the Act, which says that the tolls fixed for large
quantities or long distances may be proportionately less than the
tolls fixed for small quantities and for short distances, if such
tolls are under the same circumstances charged equally to all
persons, that is to say, that the circumstances always being equal,
no discrimination shall be made between the persons using the
railway. There is a special provision of the same section, how-
ever, governing the quantity, namely, that in respect of quantity,
no special toll or rate shall be fixed for any quantity less than
one carload, or at least ten tons.
It is provided by sec. 232 that no discrimination between
localities, which it is necessary to make in order to secure traffic
on account of competition by rail or water, shall be deemed to
be unjust or partial. It would appear, therefore, that the Act
OPERATION OF THE RAILWAY. 275
provides that if there is a competition, either by rail or by water
between two or more points on the railway, which does not exist
with regard to other points, discrimination in tolls will be al-
lowed, on the ground that the circumstances and conditions were
not alike, with regard to other localities in which such compe-
tition did not exist. The company is specially prohibited from
giving any secret special rate to any person, and in order to pro-
vide against this mode of discrimination, they are prohibited
from giving any rebate, drawback or concession, and the com-
panies are bound, on the demand of any other party, to make
.known any such special rate, rebate or concession given to
anyone, (i)
As an illustration as to what would or would not constitute an
undue discrimination by a railway company in favor of one in-
dividual as against another, the case of the Denaby Colliery Co.
v. The Manchester) etc., Ry» Co. (2) should be carefully ex-
amined. This is a most instructive case, and deals with the
whole question of the interpretation to be placed upon the
clauses of the English acts which are analogous to our own. The
decision of the House of Lords in this case would be binding
upon the Courts in this country, in interpreting the similar clauses
of our own act, (3) and it is therefore essential, in order to have a
clear comprehension of the meaning and effect of these clauses, to
carefully study this case. The points involved are too lengthy to
be dealt with here in detail, but a short summary of the holding
of the Court may be given. It was held in the first place that
the fact that the railway company charged a less proportionate
rate for coal carried for one colliery over a part of its line than that
which it charged to another colliery for the carriage of coal over
a shorter part of its line, did not constitute an undue advantage
or preference to the first colliery company within the meaning of
the Act, inasmuch as the goods did not pass " only over the
same portion of the line of the railway." The language of the
Act is that tolls shall always, under the same circumstances, be
charged equally to all persons and at the same rate in respect of
goods of the same description passing only over the same portion
(i) Sec. 233. (2) ii App. Cas. 97.
(3) City Bank v. Barrow, 5 App. Cas. 664 ; Trimble v. Hill, 5 App. Cas.
342-
276 THE RAILWAY LAW ov CANADA.
of the line of railway. The House of Lords has authoritatively
and finally decided in this case, that the conditions to constitute
an undue advantage or discrimination must be strictly within the
language of the Act ; and that though for the same class of goods
passing over the same portion of the railway, a higher rate of
freight was charged in the case of goods carried only over that
portion of the road than in the case of goods carried over a longer
stretch of the road including that portion, this would not constitute
a case of undue discrimination, inasmuch as the goods did not pass
"only over the same portion of the railway." In the same case,
however, their Lordships pointed out what would constitute an
undue advantage of discrimination, and incidentally explained the
meaning to be attached to the words " under the same circum-
stances." They held that where the railway company charged a
less rate for coal carried only over the same portion of the railway,
from the same point of departure to the same place of destination,
in a case where it was to be shipped by sea to certain ports, than
it charged in a case where it was not to be shipped to these ports,
this was an undue discrimination ; and they laid down the prin-
ciple that wheie the same goods are carried only over the same
portion of the line of the railway, the railway company are
bound to charge the same rate of freight to all persons, without
regard to the ultimate destination of the goods. In other words,
in order to bring the Company within the meaning of the Act, the
goods must be the same, and the portion of railway between the
points of departure and destination must be the same; and the
circumstance that certain of the goods are to be transhipped
thence to other ports would not constitute an exception within
the meaning of the Act.
Another important case, decided in England by the House
of Lords, was that of Evershed v. The North Western fiy.
Co. (i) This case arose under the English Act, 17-18 Vic., which
contained provisions similar to our Railway Act, by which
railway companies were forbidden to give any undue preference or
advantage to any particular person or company in the matter of
carrying or forwarding freight. The plaintiff had a brewery at a
place where there were three other breweries. These latter were
(i) I.. R., 2 Q. 13. D. 254, 3 Q. B. D. 135, 3 App. Cas. 1059.
OPERATION OF THE RAILWAY. 277
connected with the railway, whereas plaintiffs brewery was not.
In order to get away some of the business of the three breweries
from the Midland Railway, the North Western carried the goods
of these three breweries to the freight depot, free of charge, and
still made a profit on the whole transaction ; but they charged the
plaintiff a rate of freight for the same service, that is to say, taking
his goods from the brewery to the depot. It was held that this
was an undue preference within the meaning of the Act, and that
plaintiff was entitled to recover an amount equal to the cost of
carting his goods to the depot.
In determining whether mileage rates charged to one trader on
a lower scale than another do or do not amount to an undue
preference, it has been held in England that the Court may take
into consideration the fact that one of the traders has access to
a competing line of railway, (i)
An agreement under which a railway company undertook
not to allow any coal or coke to be received or deposited at or
sent from one of their stations, either by railway or otherwise,
which had not been raised from or manufactured at the collieries
or coke ovens of a certain estate, was held to amount to an
undue preference. (2)
It has been held by the Supreme Court of the United States,
that it is no defence to a charge of discrimination that the dis-
crimination was made in consideration of the person unduly
favored releasing the company from claims for damages. (3)
6. Railway companies are not only bound to carry goods for Traffic arran-
the public generally, but they are also bound to give all reasonable gements-
facilities to any other railway company for the forwarding and
delivery of traffic, and for the return of cars and trucks, etc.
upon which goods or passengers may be carried, and are pro-
hibited from giving any undue preference or advantage to any
particular company or with regard to any particular description
of traffic, and — e contra from subjecting any particular company,
or person or description of traffic to any undue disadvantage ;
(1) Phipps v. Lon & N. W. Ky. Co. [1892], 2 Q. B. 229 ; 6l L. J. Q. B.
379 ; 8 Ry. & Can. Traff. Cases 83.
(2) Rishton Local Board v. Lan. & York Ry. Co., 8 Ry. & Can. Traff.
Cases 74.
(3) Union Pacific Ry. Co. v, Goodridge, 13 U. S. 970.
278 THE RAILWAY LAW OF CANADA.
and special provision is made in the case where a company is
working a railway which forms part of a continuous line, or which
intersects any other railway, or which has any terminus, station
or wharf near to a like place of accommodation of another rail-
way. In such case, the company is bound to afford all reason-
able facilities for forwarding by its railway all traffic coming from
the other railway without unreasonable delay, and without giving
any preference or advantage to any particular person, com-
pany or description of goods. And the company is bound
in such case to offer no obstruction to the public desirous of
using their railway as a continuous line of communication, so
that all reasonable accommodation by means of the railways of
the several companies may be afforded to the public, (i) Agree-
ments may be made between railway companies, either in Canada
or elsewhere, for the regulation and interchange of traffic between
them, and even for a division or apportionment of tolls, com-
monly called a pooling of receipts, and in fact generally with
regard to the management and working of connecting railways
or of any parts of them ; but this must not be for a term exceed-
ing twenty-one years. Such agreements or arrangements, how-
ever, are subject to the consent of two-thirds of the stockholders of
the contracting companies, and to the approval of the Governor-in-
Council, (2) which approval can only be granted after two months
previous notice of the application therefor has been published in
the Canada Gazette, stating the time and place of the applica-
tion, so that all persons interested may be heard for or against
the arrangements. (3) But no such agreement, under sec. 240,
can be made which contains any condition contrary to the pro-
visions of that section with regard to the facilities to be afforded
by one railway to another and to the public generally, which
would violate those provisions with regard to undue preferences,
etc.
It has been held that it was not sufficient that the directors of
two railway companies communicated an agreement made between
them as to traffic arrangements to their shareholders by writing,
and announced it to them at a regular meeting of shareholders,
who then had full notice thereof, and did not dissent therefrom,
(i) Sec. 240. (2) Sec. 238. (3) Sec. 239.
OPERATION OF THE RAILWAY. 279
but ratified the same ; and though defendant's shareholders, at a
regular meeting, approved of the sums found as balances struck
in favor of the plaintiffs on the monthly settlements provided for
in such agreement, (i)
It appears that two companies having the same termini may,
in order to avoid competition, come to an agreement with refer-
ence to the traffic along existing routes on their lines, with a
view to distribute such traffic and the revenue derived from it
between the two companies. (2)
A traffic agreement to the following effect has been maintained
and held valid and intra vires of a railway company ; — viz. an
agreement that there should be certain joint rates chargeable to
passengers and freight by a steamship company and a railway
company, to be divided in certain proportions, and if it should be
found that the proportion payable to the steamship company
did not at the end of the season amount to the sum therein stip-
ulated, then that the deficiency should be made good by a rebate
from the share of the railway company ; and, on the other hand,
if the steamship company received more than the sums men-
tioned in the agreement, the railway company were entitled to
a share of the surplus. (3)
It was also held that sec. 240 does not prevent a railway
company from guaranteeing all its traffic to a certain steamboat
company, but that it only applies to railway companies. (4)
7. In addition to the provisions of the Act prohibiting undue Facilities to
preference being given to individual shippers or to other rail\va\ Express Com-
. . . 1,1 ' panics,
companies, it is provided by sec. 242 that where any company
gives facilities to an express company, or to any persons carrying
on that business, it is bound to grant equal facilities on the same
(1) Great Western Ry. Co. v. G.T.R., 25 U. C. Q. B. 37 ; and see Lindley
Comp. 181.
(2) Hare v. L. & N. W. Ry. Co., 2 J. & II. So ; Great Western Ry.
Co. v. G. T. R., 25 U. C. Q. B. 37.
(3) Owen Sound R\. Co.v. C. 1'. R., 17 O. R. 691.
(4) Owen Sound S. S. Co. 'v. C. P. R , 17 O. R. 697, Rose, J., Confirmed
in Appeal, i7Ont. App. 482; and for recent English cases, see Darlaston
Local Board v. Lon. & N. W. Ry. Co., q R. 712 ; [1894] 2 Q. B. 694, 8
Ry. & Can. Traff. Cases 216 ; Solway Junction Ry. Co. v. Caledonian Ry.
Co., 8 Ry. & Can. TrarT. Cases 177; Dublin, Wicklow, &c., Ry. Co. v.
Midland G. W. Ry. Co., 8 Ry. & Can. Traff. Cases 39 ; City of Dublin Steam
Packet Co. v. Midland G. W. Ry. Co , 8 Ry. & Can. Traff. Cases I.
280 THE RAILWAY LAW OF CANADA.
terms and conditions to any other express company which asks
for them. It will be observed that this is only in the case wiiere
the company has already granted facilities on its line to some
company or person carrying on the express business, and there
is nothing in thi Act which would prevent a railway compiny
from carrying on the express business itself. In the United
States, however, it has been held that a railway comp my cannot,
either directly or indirectly, destroy or even tranvnel express
enterprises, by either excluding express companies from its lines,
or hindering them with unjust regulations or unfair discrimina-
tions, nor can it assume to itself the exclusive right of carrv-
ing on the express business over its o\v i lines, (r)
In Canada, it would appear that railway companies may refuse
to enter into any special agreement in the first instance with
express companies, and if they thought proper could do the great
bulk, if not all the express business themselves, so far as the
receipt and delivery of goods and parcels, large or small, raiy be
concerned. (2)
In the absence of collusion, the Court will not inquire into the
reasonableness of the rates charged by a railway company to an
express company. (3) The nature of the express business is
such that it requires special accommodation for goods not to be
treated as ordinary freight, but to be forwarded on fast trains
with car accommodation to a named extent, and the ordinary
statutory provisions as to equality cannot be applied. (4) It is
absolutely necessary that a special bargiin and contract has to
be madej and no particular bargain can be force'l by law on a
railway company.
In the absence of legislation, it must be left to the company
to decide whether they can provide any, and, if any, what accom-
modation for express business as distinct from the ordinary
transmission of freight or passengers. When the railway com-
pany agree with the first comer, th>y are n>tb:>und to make
their bargain in the anticipation that other companies will also
apply. "It by no means follows," said Chief Justice Wait, of
(i) Southern Express Co. v. Liuisville & Nashville Ry. Co., 4 L. N. 16.
(l) Vickers v . C- P. R., 13 Ont. App. 210. Hagarty, C. ]. O.
(3) Vickers v. C. P. R , 13 Oat. App. 210, Hagirty, C. ]. O.
(4) Vickers v. C. P. R., 13 Ont. App. 219, Hagarty, C. j. O.
OPERATION OF THE RAILWAY. 281
the United States Supreme Courl, " that because a railway
company can serve one express company in one way, it can as
well serve another company in the same way and still peiform its
obligations to the public in a satisfactory manner So long as
the publfc are served to their reasonable satisfaction, it is a
matter of no importance who serves them." (i)
In this country, however, it has been held that a railway
company having granted to one incorporated express company
the privilege of employing their station agents to act as agents of
that express company, such agents having, as employees of the
railway company, the right to use the company's trucks and
baggage room as places for storing goods, and refused the same
privilege to another incorporated express company, brought
themselves within the provisions of the Act. (2)
All these questions are, however, within the jurisdiction of the
Railway Committee; (3) and it has been held exclusively so.
(4)
8. By sec. 226, the Governor in Council is given power to Tolls— Ap-
make some uniform classification of freight on the report of the Proval ty.th
Governor in
Minister; and the company, m fixing or regulating its tolls, must Council.
conform to .such classification, as he may from time to time pre-
scribe, except in case of through traffic to or from the United
States. All tolls are subject to the approval of the Governor in
Council. The by-law fixing them must be approved by him, and
they cannot be levied until after his approval, and two weeks
publication in the Canada Gazette of the by-law and of the Order
in Council approving of the tolls ; and no company can collect
any money for services as common carriers except subject to the
provisions of the Act. (5) Under this section it has been held
that, where a company sought to escape liability for damage to
goods through their negligence, on the ground that the shipper
had agreed to relieve them of liability in consideration of his
being charged the lower of two alternative freight rates, there was
(1) St. Louis, etc., R. R. Co. r. Southern Express Co., 117 U. S. I.
(2) Vickers Express Co. i\ C. P. R., 13 Ont. App. 2lo.
(3) Sec. II Ry. Act.
(4) Ontario Express and Transportation Co. v. G. T. R. Co. M. L. R. 7,
S. C. 308 (S. C. 1891).
(5) Sec. 227.
282 THE RAILWAY LAW OF CANADA.
no freight "lawfully payable" under sec. 246, inasmuch as
no by-law fixing the rates had been approved by the Governor in
Council, and, therefore, there was no valid alternative rate, and
the release was inoperative, (i)
The Governor in Council has power also to revise the by-laws
of the company, fixing the tolls, and, in case of revision by Order
in Council, the tolls substituted by such order are the only ones
which can be collected, after two publications in the Canada
Gazeite. (2)
Fractions of 9. With regard to the charging for tolls, it is provided by sec.
weight. 229 l'ial anv fracti°n in a distance under a mile is considered as
a whole mile, and, as to any fraction of a ton in the weight of
goods, a proportion of the toll is chargeable according to the
number of quarters of a ton contained in the fraction, and the
fraction of a quarter of a ton is considered as a whole quarter.
(3)
Collection of j[Q4 The company are bound to post up in their offices in
every place where tolls are to be collected, a printed list of the
rates chargeable, whether for passengers or goods. (4)
These tolls are payable to such persons, and at such places near
to the railway, and in such manner and under such regulations
as the by-laws may direct. (5) As to passengers, the tolls are
ordinarily collected by purchase of tickets at the station of the
company from which the passenger takes his departure. It is
frequently the practice that in the event of the passenger not
buying a ticket before entering the train, he is liable to a further
charge of ten cents. The right of the company to charge this
may be doubted, and the practice in the United States is, per-
haps, more legal and proper, namely, that a passenger buying
his ticket on the train shall pay an extra ten cents, or some pro-
portionate sum, which will be refunded to him on his producing
the ticket or receipt of the conductor at his destination.
Passengers — 11, It is usual that the passenger should purchase his ticket at
the station, and the only means which the conductor of a train has
(0 Cobban v. C. P. Ry. Co., 26 O. R. 732.
(2) Sec. 228.
(3) See as to construction of similar clause of English Act, Pryce v,
Monmouthshire Canal & Ry. Co., 4 App. Cas. 197.
(4) Sec. 230. (5) Sec. 231.
OPERATION OF THE RAILWAY. 283
for ascertaining whether a passenger has paid his fare or not is
by the inspection of his ticket ; but if a passenger has not
purchased a ticket, he is bound to pay his fare to the conductor
of the train, and if he refuses to pay his fare, he may be expelled
from the train by the conductor and the train servants, with his
baggage, either at any usual stopping place or station, or near
any dwelling house, at the option of the conductor, who, however,
must first stop the train, and who must not use any unnecessary
force, (i)
12. There has been much litigation in connection with Ejectment for
this question of the right to eject a passenger for non-payment non~paym<:nt'
of fare, but it is unnecessary to refer here to more than some of
the leading decisions of the courts on this point. Our Act has
practically fixed the cases in which a passenger may be expelled.
First, it is upon refusal to pay his fare. If the passenger has not
bought a ticket, or has lost his ticket, it seems to be clear under
the Act that he must pay his fare, or take the alternative of
ejectment from the train, (2) though the right to eject has been
denied in some cases where the passenger had bought a ticket
and lost it. (3) If he states that he has purchased a ticket, and
has mislaid it, he must be given a reasonable time within which
to produce it ; (4) but in all such cases, in the author's opinion,
so long as the conductor acts within reason, the company could
not be held liable in damages if the passenger was ejected for
non-payment of his fare. The only means a conductor has of
knowing whether the passenger has paid his fare at the station is
by the production of the ticket, and so long as a reasonable time
is given to the passenger to produce it, the company should not
be held liable for damages, if the passenger is ejected from the
train, even though he had actually paid his fare in the first
instance at the station and obtained a ticket, for his ejection
(1) Sec. 248.
(2) Duke v. G. W. Ry. Co., 14 U. C. Q. B. 377 ; Fulton v. G. T. Ry.
Co., 17 Q. B. 428 ; Curtis v. G. T. R. Co., 12 C. L'. 89 ; Perrault v. C. P.
R. Co., 20 R. L. 321.
(3) Dancey v. G. T. Ry. Co., 19 Ont. A. R. 664 ; Beaver v. G. T. Ry.
Co., 22 O. R. 667.
(4) Curtis v. G. T. Ry. Co, 12 U. C. C. P. 89 ; Fulton ». G. T. Ry. Co.,
17 Q. B. 428 ; Tnomas v. Geldert, 20 N. B. 95 ; Perraull p. C. P. Ry. Co.,
20 R. L. 321.
284 THE RAILWAY LAW OF CANADA.
would be simply the result of his own carelessness in having lost
or mislaid his ticket. It is the duty of the conductor to see that
no person travels upon the train without having paid his fare,
and so long as he acts without harshness and with reasonable
discretion, there is no reason why the company should be held
liable for the ejection of a passenger who is unable to produce
his ticket, and refuses to pay the fare ; for it must be remembered
that very often dishonest persons endeavor to ride free from one
station to another of the railway, on the pretence of having lost
their tickets.
But the conductor must always act without harshness and
within reason. He must give the passenger ample time to find
his ticket, if he claims that he has mislaid it; and he must not
eject him with any unnecessary violence, and he must not
put him off the train except at a station or stopping place, or
near some dwelling house. These principles were recently
enforced in a case where a passenger who had purchased his
ticket, but was unable to find it, was ejected at a point distant
from either a station or dwelling house, (i) In all cases of
this kind, the courts have been very jealous of the rights of the
public as against the railway company; but, at the same time, the
passenger must always be in good faith and within his o\vn rights.
The cases in which it has been held that a passenger could not
be lawfully ejected from the train for non-payment of fare, where
he had purchased a ticket but could not produce it, seem to have
been decided upon the ground that there was no regulation or
by-law of the company known to the passenger requiring him
to produce his ticket on pain of expulsion, and that therefore it
was no part of the contract of carriage that he should produce
his ticket as a condition -of being carried to his destination. For
instance, in a recent case in Ontario, where a passenger had lost
his ticket and there was no condition 'in his contract with the
company, and no by-law or regulation of the company under
sec. 214 requiring its production, it was held that he could not
be treated as a passenger who refuses to pay his fare, and could
(i) PerraiiU v. C. P. R. Co., 20 R. L. 321. The Courtthere held that the
conductor was bound to take into consideration the age and feebleness of the
passenger, and give him a proportionately longer time to find his ticket.
OPERATION OF THE RAILWAY. 285
not lawfully be ejected from the train. (i~) This case was decided
mainly upon the English case of Btttler v. Manchester, Sheffield
& Lancash.re Ry. (2) There the ticket issued to the plaintiff
incorporated by reference a condition published in the defendants'
time-tables, to the effect that every passenger should show and
deliver up his ticket when required, and that any passenger
travelling without a ticket, or failing or refusing to show or deliver
up his ticket, should be required to pay fare from the station
from which the train otiginally started. The plaintiff had bought
his ticket, but lost it, and was therefore unable to produce it
when required to do so by the guard. On being required to pay
fare from the station from which the train originally started, he
refused, and he was thereupon forcibly ejected from the carriage.
He sued the company for assault, and it was held that the contract
between him and the company did not by implication authorize
them to remove him from the carriage, on his failing to produce
a ticket and refusing to pay fare. This decision, it will be observed,
was based upon a special contract, which provided that the
passenger failing to produce his ticket should pay fare from the
station whence the train had started, but the passenger did not
contract that in event of his failure to do so, the company would
have the right to eject him. It is difficult to conceive how this
decision can be considered as affecting the right of railway
companies to eject passengers under the provisions of the Railway
Act in the absence of contract. (3)
The principle enunciated simply amounts to this, that a rail-
way company has no right to eject a passenger for non-payment
of an extra fare imposed by a by-law in default of the production
of a ticket, unless the by-law, which constitutes the contract
between the passenger and the company, provides for such
ejection. The decision does not go so far as to say that the
company must carry the passenger to his destination without
payment of any fare. That would be contrary to the common
law as to carriers, and in direct contravention of sec. 246 of our
Railway Act, which makes the obligation to carry dependent
(1) Beaver v. G. T. Ry. Co., 22 O. R. 667.
(2) L. R, 21 Q. B. 0.207.
(3) See McCarthy ». Dublin, etc., Ry. Co., 18 W. R. 762. In Exch. Cham,
where light to eject was maintained.
a86 THE RAILWAY LAW OF CANADA.
upon the " due payment of the fare lawfully payable therefor."
If there is not a due payment of the fare, the company is not
bound to carry the passenger ; and it must follow as a logical
consequence, apart from the provisions of sec. 248, that the
officers in charge of the train have a right to refuse to cat ry him,
and if he insists upon remaining on the train, to eject him. The
passenger must either pay his fare to the officer in charge of the
train, or show that he has already paid it to some authorized
person ; and the only recognized means of proving it is by the
production of a ticket. If he cannot produce a ticket, the con-
ductor has no possible means of knowing whether the fare has
been paid or not ; therefore he would be justified in insisting upon
payment of the fare, and, in default, of refusing to carry the passen-
ger further, and of ejecting him. And if the servant of the company
would be justified in so doing, it is difficult to understand how
the company could be held liable for his acts, especially as the
passenger would himself be negligent in losing his ticket, and
would have his recourse against the company to recover the
amount of the fare, if he had paid twice. The American author-
ities all support the right to eject, (i)
Tickets issued 13. Again, the passenger must have paid his fare within the
on conditions, meaning of the Act. If a party purchases a ticket on certain condi-
tions, he must comply with those conditions. For instance, if a
ticket is declared to be good for a specified time only, the person
buying such ticket enters into a special contract with the company,
which is at an end as soon as the term has expired, and the
(I) Chicago & Alton Ry. Co. v. Willard, 31 111. App. R. 435 ; Hibbard
v. N. Y. £ErieRy.Co., 15 N. Y. 455 ; Crawford v. Cincinnati, <fcc.,Ry. Co.,
26 Ohio 580 ; Shelton v. Lake Shore & Mich. Southern Ry. Co., 29 Ohio
214; Louisville <fc Nashville Ry. Co. v. Fleming, 18 Am. & Eng. Ry. Cases
347 ; Frederick v, Marquette, <fec., Ry. Co., 37 Mich. 342 ; Jerome v. Smith,
48 Vt. 230; Haley v. Chicago & N. W. Ry. Co., 21 Iowa 15 ; Townsend
e'. N. Y. Central Ky. Co., 56 N. Y. 295.
The decision in the case of Beaver v. G. T. Ry. Co. has now been
reversed by the Supreme Court (22 S. C. R. 498), where it was held (Four-
nier J. dissenting) that the contract between the person buying a ticket and
the company upon who.-e line it is intended to be used implies that such ticket
shall be produced and delivered up to the conductor of the train on which
such person travels, and if he is put off a train for refusing or being unable so
to produce and deliver it up, the company is not liable to an action for such
ejectment. The Manchester & Sheffield Railway case was referred to and
clearly distinguished (per Gwynne, J., at pp. 501-2).
OPERATION OF THE RAILWAY. 287
holder of a return ticket attempting to return upon it after the
expiration of the delay for which the contract was granted may
be lawfully ejected from the train on lefusal to pay his fare, (i)
Again, where the plaintiff had offered a return ticket, which,
according to the terms printed upon it, had expired, and the
jury had allowed him $100 damages in an action for wrongful
ejectment, the Court of Appeals of Quebec set aside the verdict,
on the ground that the railway company were justified in putting
the plaintiff off the train. (2)
Another case in which the same principle was maintained,
that the passenger must conform himself to the conditions on
which his ticket was sold to him, was that of Livingston v. The
G. T. Ry. Co., (3) where the Court of Review of Quebec held,
in 1876, that where a passenger bought a ticket from Montreal
to Toronto, marked good only for a continuous trip within two
days from date, and stopped off for some days at Kingston, and
afterwards attempted to continue his journey on the same ticket,
the company had a right to eject him from the train in default
of further payment of fare.
14. In the United States it has been held that where coupon Coupon
tickets are issued by one company, giving right of passage over tickets,
several distinct lines of railway, each coupon is a distinct ticket
for each road ; and a passenger holding such a ticket has the
same rights against each company as if ho had purchased a
separate- ticket for the portion of each roadway traversed ; and
that where the conductor on any one of the roads covered by
the coupon tickets refuses to accept a ticket issued by the other
company as agent for his line, and demands full fare, the pas-
senger may, if his ticket was issued with authority, pay the fare
over again, and recover from the company requiring payment as
for breach of contract ; or he may refuse to pay, and leave the
train, and sue and recover all resulting damages ; but if he refuses
to leave the train, he cannot recover damages for being forcibly
ejected by the conductor, where no more force is used than is
(1) Reg. v. Phaneuf, 5 L. C. J. 167 ; and see Davis v. G. W. Ry. Co., 20
U.C. Q. B. 27.
(2) Cunninghan v. G. T. Ry. Co., 9 L. C. J. 57, II L. C. J. 107.
(3) 21 L. C. J. 13; and see Craig v. G. W. Ry. Co., 24 U. C. Q.B. 504;
and Briggs v. G. T. Ry. Co., ibid. 510.
288
THE RAILWAY LAW OF CAXADA.
Jurisdiction
and cause of
action.
absolutely necessary, and the expulsion is not wanton or wilful,
(i) It may be questioned whether the latter part of this holding
would be good law in this country, as our Railway Act only gives
power to the conductor to eject a passenger in the case of his not
having paid his fare, and it would seem to be clear that if he had
purchased coupon tickets from a company having authority to
issue them, and giving him the right to travel over certain roads,
he would have paid his fare, entitling him to travel over those
roads, on production of his ticket, and could not be legally
ejected from the train.
So it has been held in New Brunswick that, where these
through tickets are issued in coupon form by mutual arrangement
between various companies, the production by a passenger of a
coupon authorizing him to pass over one of these companies'
lines affords evidence of a contract between him and that com-
pany for his caniage as a passenger. (2) And if this be good
law, the conductor would have no right to demand payment of
fare.
15. In Quebec it has been held that a corporation, whose prin-
cipal place of business is in a foreign country, may be served with
process at any place in the Province of Quebec where it has an
office for the transaction of business. So, where a foreign cor-
poration had an office at Montreal for the sale of sleeping-car
tickets, and the plaintiff, who had bought a ticket from defend-
ants at New York, for a sleeping-car berth from that city to
Montreal, brought an action of damages, alleging that he had been
unlawfully expelled from the sleeping car, it was held that the ser-
vice of his action at the office of the company in Montreal was a
sufficient service to give the court at Montreal jurisdiction.
Further, that although the expulsion took place beyond the
province line, yet as it continued until the plaintiff reached
Montreal (lie being forced to ride in a first-class car), the cause
of action arose within the province. (3) Where a person
having a return ticket for a passage from one place to another is
put off the train at an intermediate point, the cause of action
arises at this latter place, and not where the ticket is issued. (4)
(1) Peun. Ky. Co. v. Connell, 127 111.419.
(2) Macdonald v. The Mayor of St. John, 25 N. B. 318.
(3) New York Central Sleeping Car Co. i\ Donovan, M. L. R.,4 Q. B.
392-
(4) Ralph i'. Great Western Ry. Co., 14 Can. L. J. N. S. 172.
OPERATION OF THE RAILWAY. 289
16. While the general rule, that damages will only be allowed Measure of
when they are the direct and natural result of the company's acts, .am*Ses *or
and which could have been reasonably foreseen at the time, and
that remote damages will not be allowed, (i) has been generally
applied to cases of ejectment from a train, (2) there is always
difficulty in determining, upon the facts of each particular case,
what damages should be allowed, or refused as too remote. In
a very recent case (3) the Supreme Court, confirming judgments
of the Ontario Court of Appeal (4) and of the Divisional Court,
(5) held that illness resulting from exposure to cold, in conse-
quence of ejectment from a street car, is not too remote a cause
for damages; and that where the person ejected was properly
clothed for protection against the severity of the weather, but was
in a state of perspiration from an altercation with the conductor
when he left the car, and therefore liable to take cold, the jury
Avere justified in finding that an attack of rheumatism and bron-
chitis, which ensued, was the natural and probable result of the
ejectment, and in awarding damages therefor. This case would
seem to go very far, and to be in conflict with the principles laid
down in Hobbs v. London & S. W. Ry Co., (6) upon which case
one of their Lordships, and the Chief Justice of the Court of
Appeal (Hagafty, C. J.) based their dissent.
17. In the case of non-payment of tolls, they may be recovered Enforcing
by an ordinary suit, in any Court of competent jurisdiction, andPayment of
in the case of goods, they may be detained until payment of r°agse °f °a
tolls. (7) In such case, the goods remain at the risk of the owner, goods.
(1) Pothier, Obligations, Nos. 159, et seq. ; I Sedgwick on Measure of
Damages, 67 ; C. C. 1074 ; Victorian Ry. Comnrs. v. Coultas, 13 App. Cas.
222 ; Rock v. Dtnis, M. L. R., 4 S. C. 134, 356 ; Thibaudeau v. Monti.
Street Ry. Co., ibid, 400; Toms v. Corporn. of Township of Whitby, 35
U. C. Q. B. 195 ; Ferric v. G. W. Ry.Co., 15 U. C. Q. B. 513.
(2) Williamson v. G. T. Ry. Co., 17 U. C. C. P. 615 ; Hobbs v. Lon. &
S. W. Ry. Co., L. R., lo Q. B. in ; Goff v, Gt. Northern Railway Co., 30
L.J. Q. B. 148.
(3) Toronto l\y. Co. i<. Giinsted, 24 S. C. R. 570.
(4) 24 O. R. 683. (5) 21 Ont. A. R. 578. (6) Supra.
(7) Sec. 234. In a case where plaintiff contracted with defendants to have
his goods carried by their line, and through the intermediary of another line
with which he had a contract for a low rate, to his destination, and the de-
fendants failed to send the goods by that other line, thereby causing plaintiff
to pay a higher freight, the defendants pleaded the illegality of the low rate
contract, but it was held that the contract could not be assumed to be illegal,
for even if it could not be enforced by plaintiff against the intervening com-
pany, this would be no defence to the defendants. (Langdon v. Robertson,
I3O.R.497-) 19
290 THE RAILWAY LAW OF CANADA.
(1) and if the tolls are not paid within six weeks, the company-
may sell the goods and retain the tolls, and all expenses and
charges out of the proceeds, but are bound to deliver the sur-
plus or any part of the goods which are not sold, to the owner.
(2) In the case of goods remaining unclaimed for a year or
more, the company can sell them, by giving public notice for six
weeks in the Official Gazette and in any local papers that it
thinks proper, and out of the proceeds they may retain any
freight due on the goods or charges or expenses in connection
therewith ; and if there is any balance remaining, they shall keep
the same for a period of three months, to be paid over to any
person entitled thereto ; (3) and if this balance is not claimed iu
that time, it is to be paid over to the Receiver-General, for the
public uses of the country until claimed by the owner. (4)
This right of retention or lien upon goods for freight has
always been recognized by the law in favor of carriers. From
the language of the Act, it is evident that this right of lien or
privilege upon the goods for the payment of freight exists upon
any part of the goods for the whole amount of freight due for the
carriage of the whole, — that is to say, that the company's lien is
not a proportionate one, equivalent to the amount of freight due
upon such part of the goods as may remain in their possession,
but they may hold any of the goods which remain in their posses-
sion for the full amount of freight due by the owner of the whole
quantity carried. This is in accordance with the common law
with regard to carriers, and has been recognized in one of the
early cases in the province of Quebec, (5) where it was held that
a common carrier has a privilege upon every portio.i of the goods
carried for the payment of the whole freight due by the owner or
consignee of the goods, and this principle was reaffirmed in the
late case of the Great Western Railway Company v. Crawford^
(6) where the consignee of rails carried by the railway company
contended, that without a special contract, the company could not
have a lien beyond what was due on the particular rafts detained,
the company having delivered the greater part of the consign-
(i) Sec. 234. (2) Sec. 235.
(3) Sec. 236. (4) Sec. 237.
(5) Brewster v. Hooker, 7 L. C. R. 55, J L. C. J. 90.
(6) 6 Q. L. R. 160.
OPERATION OF THE RAILWAY.
291
ment. It was held that the company had alien upon the portion
of the goods in their possession for the general balance of freight
due on the whole cargo, as well as for the charges upon the par-
ticular goods retained.
The right of the company to recover freight as common
carriers may be enforced against both the shipper and the
consignee who takes delivery of the goods ; and the goods may
be retained until payment of freight as against the consignee,
unless he is relieved by special contract.
To create a valid lien, it is essential that the party through
whom it is acquired should himself either have the absolute
ownership of the property, or at least a right to vest it ; there
must also be an actual or constructive possession by the party
asserting it, with the express or implied assent of the party
against whom it is asserted, (i) Where the consignor's contract
is made with the first carrier alone for the whole distance, all
succeeding carriers are the agents of the first carrier, and there is
no priority between them and the consignor or consignee. Where
the freight is paid in advance to the first carrier, the last carriers
cannot claim a lien on the goods for advance charges paid by
them to intermediate carriers from whom they had received them
and for freight for carriage by their own line. But where the
freight is not paid in advance, the last carrier may, as agent for
the first with whom the contract was made, collect the whole
freight, and assert a lien on the goods, but not for a sum beyond
that contracted for by the first carrier. (2)
In a New Brunswick case, which came up under the Govern-
ment Railway Act, (3) the goods had been replevied, and the
freight agent put in a special claim. It was contended by counsel
for plaintiff that the property of the Intercolonial being in the
Crown, the claim for lien should have been made in the name of
the Queen or of the superintendent of the railway ; that the
defendant had no property in the goods ; that he should have
specified the nature of the claim ; that the claim^being a personal
claim he had no right to show a lien in any other person. But
(i; Trottierz/. Red River Transportation Co., Man. Rep. Temp. Woodatp.
262 ; and see Leaf v. Can. Shipping Co., I L. N. 220.
(2) Ib. p. 255 ; Htch v. Newberry, I Douglas (Mich.) I.
(3) R. S. C., p. 581, sec. 33.
292 THE RAILWAY LAW OF CANADA.
it was held that none of these objections were sustainable ; that
the agent under the section of the Act had a special property in
the goods, and that under Consol. Stats. N.B.,chap. 37, sec. 203,
the agent could claim a special property in the goods, without
giving further particulars, (i)
At common law a carrier has no lien upon goods fora general
balance of account more than in other cases of lien, and such liens
are not favored. (2)
The consignee may be held liable not only for freight on the
goods, but for demurrage and other like charges, provided that
it is so specified in the bill of lading, and he claims delivery
under such bill of lading. If he presents the bill of lading and
asks delivery of the goods, he is bound to pay the freight due
thereon before obtaining delivery; and if the bill of lading pro.
vides for the payment of demurrage, he would have to pay such
demurrage, if due, in addition to the freight, and the railway
company would have a lien for the payment of such demurrage,
as well as for the payment of freight. This has been held in
many cases of carriers by water, and also in the case of railway
companies. (3) This lien only exists so long as the goods are not
delivered. If the railway company delivers the goods, it loses its
privilege or lien thereon, and has only its recourse against the
consignee or shipper personally ; but the unloading of the
goods upon a platform, or the putting them into a warehouse,
to await their being taken delivery of by the consignee would
not destroy the company's lien. So long as the goods remain in
the possession of the company, the lien continues to exist. (4)
Obligation to 18. It is provided by sec. 246, that all regular trains shall be
ury- started and run as nearly as practicable at regular hours fixed
by public notice, and the company is bound to famish sufficient
accommodation for the transportation of all such passengers
and goods as are within a reasonable time previous to the hour
fixed offered for transportation at the place of starting, stations
and usual stopping places ; and the company is bound to take
(1) Rowe v. McEwen, 28 N. B. 86.
(2) Rushforth v. Hadheld, 6 East 519 ; Redfield, Vol. 2, § 188, No. 27.
(3) Murray v. G. T. R. Co., 5 R. L. 746.
(4) Groulx v. Wilson, Q. R., i S. C. 546 ; Patterson v. Davidson, 2 Rev.
de Leg. 77.
OPERATION OF THE RAILWAY. 293
and carry such passengers or goods on ihe payment of tolls
lawfully payable therefor, (i) and duly deliver them at the
place of destination ; and in the case of neglect or refusal by the
company either to receive or carry to their destination such
passengers or goods, an action lies by the person aggrieved, and
the company is not relieved from its liability by any notices or
conditions, if the damage complained of is the result of negli-
gence or omissi:m on its part or that of its servants. As a qua-
lification to these provisions of the Act, we must read those con-
tained in sees. 253 and 254, which provide in effect that the com-
pany is not bound to carry goods which, in its judgment, are
of a dangerous character, such as gun-powder, nitro-glycerine,
vitriol, and articles of a similar nature, and the company has the
power to open any packages suspected to contain such dangerous
articles, and if it elects to carry them, the company is bound to
put them in cars specially set aside for that purpose, which cars
must have the words " dangerous explosives " plainly appearing
in large letters on both sides, and the company is liable to a
penalty of $500 for neglect to comply with lln's pro.ision of the
Act. On the other hand, any person sending such goods by the
railway must distinctly mark their nature on the outside of the
package, or otherwise give notice in writing to the station-master
or the employee of the company with whom they are left ; and
there is a like penalty of $500 for sending such goods without
giving such notice. This exception with regard to dangerous
goods provides the only case in which the company can refuse
to carry any particular class of goods. With this exception they
are bound to take all goods offered to them at any of their stations,
and forward them within a reasonable delay, unless some valid
reason be assigned for refusing to do so ; and that they cannot
rid themselves of this obligation by a mere notice stating they
have ceased to carry any particular class of goods. (2)
(1) As to penalty for exacting extortionate tolls, see sec. 290.
(2) Rutherford v. G. T. R. Co., 20 L. C. J. II.
CHAPTER X.
CARRIERS
Nature of
liability.
CARRIERS OF GOODS.
1. Nature of liability.
2. Limitation of liability for ne-
gligence.
3. Limitation of liability generally.
4. Through bills of lading ; liabi-
lity beyond carrier's line,
5. Limiting liability beyond line,
6. Other conditions limiting lia-
bilitv.
7. Liability of succeeding car-
riers.
8. When contract of carriage
begins .
9. Contract of carriage — acts of
agents .
10. Stoppage in trans itn.
1 1. Liability after arrival of
goods.
12. Liability as warehousemen.
13. Reasonable time for removal.
CARRIERS OF PASSENGERS.
14. Mature of liability.
15. Degree of care.
1 6. Latent defects in
roadbed.
vehicle or
17. Insufficiency of roadway,
1 8. Crown as a carrier .
19. Degree of care due those who
are not regular passengers .
20. Riding in unauthorized
p'ace.
21. Ditties of railway servants in
charge of train.
22. Alighting fiom trains at
stations.
2}. Boarding the train.
24. Delays in carriage of passen-
gers.
25. Limiting liability,
26. Notice of limitation of liability,
PASSENGERS' BAGGAGE.
27. Checks,
28. Personal baggage.
29. Unchecked baggage.
30. When liability begins.
31. When liability ceases.
32. Liability of sleeping car com-
panies.
33. Limiting liability.
34. Prescription or limitation of
actions.
Carriers of Goods.
1. It has been pointed out, that the company are bound to re-
ceive and carry and deliver, with the exceptions mentioned in the
Act, all goods offered for transportation upon due payment of the
tolls or freight ; and that an action lies against the company for ne-
glect or refusal in the premises, and that the company cannot re-
lieve themselves by any notice, condition or declaration, if the
damage arises from any negligence or omission of the company
or it servants, (i) These provisions of the Act are practically
(i) Supra, p. 292.
CARRIERS. 295
in accordance with those of the Quebec Code on the subject of
carriers. By Art. 1673, they are obliged to receive and convey,
at the time fixed by public notice, all goods offered for trans-
portation, unless there is a reasonable and sufficient cause of
refusal, and are liable for all goods that have been received in
their cars or delivered to them to be placed on the train, (i)
Under Art. 1675, they are liable for the loss and damage of things
entrusted to them, unless they can prove that such loss or dam-
age was caused by a fortuitous event or irresistible force, or has
arisen from a defect in the thing itself. Under the provisions of
this article, the liability of common carriers of goods is prac-
tically absolute, and under the common law the liability is
practically the same. (2) They are in effect insurers of the goods
entrusted to them for carriage, and will not be excused for the
loss or damage to such things, with the exceptions mentioned.
As to what constitutes the first exception, that is, a fortuitous
event or irresistible force, much has been written and said, but
the English expression " the act of God and the Queen's ene-
mies " may roughly express it. To constitute a case of either
fortuitous event or irresistible force, there must ensue the hap-
pening of an event which cannot be foreseen, and is absolutely
beyond the control of the carrier, and by this is meant not
mere accidents, such as the derailing of a train or the occur-
rence of fire, etc., but something which is beycnd the control of
man, such, for instance, as a convulsion of nature, earthquake,
lightning or deluge. The absence of negligence alone will not
excuse the carrier ; he may have used the greatest possible dili-
gence and care to avoid every possible cause of accident or loss,
and yet he will not be excused, unless he can show that it was
due to something beyond the foresight or control of man. (3) We
are speaking, now, of the liability of carriers of goods only, for,
as we will have occasion to point out later and more in detail, the
liability of carriers of passengers is not so extended, and depends
upon the absence or presence of negligence, both in Quebec and
(1) C. C. 1674.
(2) Coggs v. Bernard, I Smiths L. C. 8th ed., p. 213 ; 2 Redfield 6 ; Angel
on Carriers, 5th ed., sec. 275 ; Browne on Carriers, 89.
(3) Chalifpux v. C. P. R. Co., M. L. R., 3 Q. B. 324; 14 R. L. 149,
and authorities there cited.
296 THE RAILWAY LAW OF CANADA.
the other Provinces ; and in Quebec rests upon the principles laid
down in Art. 1053 of the Civil Code, which makes every one
responsible for the damage or loss caused by his positive act,
fault or want of care.
Carriers are also excused, within the meaning of this ex-
ception, by what is called the act of the Queen's enemies or
restraint of princes, that is to say, where the carriage of goods
is prevented by state of war or siege, as being a state of
things beyond the control of the carrier. The second exception
to this liability of the carrier is founded upon the reasonable
principle that he should not be held liable, where the loss or
damage has arisen from a defect in the thing itself. For instance,
if it is a perishable article, and has been carried with due despatch
and diligence, and yet, from its nature, is destroyed or diminished
in value, the carrier could not be held liable. A good example
of this is furnished by the case of Seymour v. Sincennes, (i)
where it was held that the heating of oats during transit, acceler-
ating the natural evaporation, was sufficient reason for the
diminution of the grain in the proportion of three per cent., and
the carrier sued for failure to deliver the whole quantity of cargo
as placed on board, was relieved to that extent. Or, again, if loss
has arisen through the insufficiency of the package in which the
article is put up, as, for instance, a leaky or defective cask, in which
liquids are placed, a carrier could not be held responsible for the
consequent loss. (2) Again, if the things carried be live animals,
and they perish without fault on the part of the carrier from sick-
ness or their natural disposition, the carrier would not be
responsible
Limitation of ^- ^'s ^ability is absolute, but may be limited by notices or
liability for conditions, providing always that the company cannot by con-
negligence. tract reijeve jtse}f from the results of its own negligence or
that of its servants. (3) The same provision will be found in
Art. 1676 of the Quebec Code, by which it is provided that
notices by carriers of special conditions limiting their liability are
binding only upon persons to whom they are made known, and,
notwithstanding such notice and knowledge, the carriers are
liable whenever it is proved that the damage was caused by their
fault or the fault of those for whom they are responsible.
(i) I R. L. 716. (2) Browne, 104. (3) Sec. 246, sub-sec. 3.
CARRIERS. 297
To take these principles in detail: the principle that the rail-
way companies, as common carriers, are insurers of the goods,
and cannot exempt themselves from liability for negligence by
any notices, conditions, or even contract, the jurisprudence has
been long well settled in this country; though, as to the last
stated proposition, grave doubts have been expressed in recent
years, as to its application in all cases, by judges whose opinions
are entitled to the highest respect, (i) This principle was upheld
in Quebec as early as 1834, in a case of Hart v. Jones, (2)
where a judgment, dismissing the plaintiff's action to recover from
a carrier the value of three crates of earthenware which had been
entrusted to him in good order, and arrived at their destination in
a damaged condition, was reversed, and the carrier held liable;
the Court further holding that if the carrier pretended that fraud
or concealment had been practised, the burden of proof was upon
him. And again, in 1859, m tne case °f Harris v. Edmonston,
(3) it was held that a condition in the bill of lading relieving the
carrier from liability for leakage, breakage, or rust, did not release
him from the obligation of paying for the loss, when negligence
was shown. (4) This principle, as to the liability of carriers
of goods, has been well laid down in the case of Chalifoux v.
C.P.R. Co. (5) The judgment of Judge Mathieu in that casein
the Superior Court points out very lucidly the liability of carriers
of goods (6) though erroneously applying that principle to the
carriage of passengers, the judgment on that point having been
subsequently reversed in the Supreme Court. (7)
The principle was again maintained in the Supreme Court in
the case of Vogel v. G. T. R. Co. (8) In that case a car was
hired for the purpose of carrying horses. The shipper signed a
shipping note, by which he agreed to the condition that he under-
took all risk of loss, injury, damage, etc., and it was held that
(1) Vogel v. G. T. Ry. Co., 10 Ont. A. R. 162 ; and per Burton, J. A.,
at p. 173 ; and per Strong, J., in the same case, n S. C. R. at p. 628 ; and
per Taschereau, J., at p. 638 ; per Cameron, C.J.,in Bate v. C. P. Ry. Co ,
14 O. R. at p. 640 ; and per MacMahon, J., in Cobban v. C. P. Ry. Co. , 26
O. R. at p. 763.
(2) Stuart's Rep. 589. (3) 4 L. C, J. 40.
(4) See also Campbell v. G. T. Ry. Co , 3 R. L. 451 ; and Bedarride
Ch. de Fer, Vol. 2, No. 426.
(5) M. L. R., 3 Q. B. 324. (6) 14 R. L. 149.
(7) 22 Can. S. C. R. 721. (8) 11 S. C. K. 612.
298 THE RAILWAY LAW OF CANADA.
the provision of the then Railway Act, similar to sec. 246 of
our present Act, prohibited the railway company from availing
themselves of the condition relieving the company from liability
where ihe horses were injured by a collision occurring through
ihe negligence of the company's servants.
In this case, however, there were two dissenting judges, Strong
& Taschereau, J.J., holding that the words " notice, condition or
declaration " in the section of the Consolidated Act of 1879, cor"
responding to sec. 2.16 of the present Act, contemplate a public
or general notice, etc., and do not prevent the railway company
from entering into a special contract to protect themselves from
liability, (i) Mr. Justice Taschereau was very positive in his
opinion that the section in question does not prohibit the com-
pany from entering into a special contract with the shipper,
relieving them from liability for negligence. His Lordship said :
" Why should parties desirous of making such contracts be de-
prived of their common law right to do so? ** * * Has the
Legislature deprived them of that right? It would require ex-
press words to bring me to the conclusion that it has done so.
I cannot find them in the statutes." The majority of the-Court
took the other view, however, and their decision is binding law.
In a later case (2) the Court held that the provisions of this
section do not disable a railway company from entering into a
special contract for the carriage of goods, and limiting its liability
as to the amount of damages to be recovered for loss or injury
to such goods arising from negligence. The Court thus drew a
distinction between the right of a company to relieve itself by
contract from all liability for negligence, and the right to limit
the amount of such liability. In this case the plaintiff delivered
to the railway company for carriage a valuable horse, and signed
a contract of carriage, in which it was stipulated that the com-
pany should in no case be responsible for any amount exceeding
$100 for any horse. The horse was killed by the negligence of
the company's servanis, and the plaintiff took action for $5000
as its value. The Divisional Court held that the plaintiffs right
to recover damages was restricted to the sum of $100. (3) On
(1) But see Peek r. North Stafford -ihire Ry. Co., 10 H. L. C. 473.
(2) Robertson v. G. T. Ry. Co., 24 S. C. R. 6u.
(3) 24 O. R. 75.
CARRIERS. 299
appeal the Court' was equally divided, (i) and the judgment
therefore stood affirmed. It was held by the Chief Justice
{Hagarty C. J. 0.) that the special limitation having been en-
tered into in good faith on the declared value of $100, and not
for the purpose of evading liability, was valid and not in contra-
vention of sec. 246. And, holding that the rate of carriage was
clearly fixed as on a declared value of $roo, said: — " I think it
" a very fair and reasonable course for the carriers to contract
" that they will carry the animal so valued at the named rate.
'•' If the plaintiff had announced that his horse was a racer worth
" $5000, it is shown that he could not have had it carried without
" authority from headquarters, fixing a. rate in some degree
" commensurate with the high value and the consequent risk. "(2)
* * * "It seems unreasonable to allow a plaintiff to mislead
" and deceive them by agreeing in writing to restrict their lia-
" bility as for a horse valued at $100, and thus, and thus only,
" to undertake its carriage, and then to ask for $5000, or fifty-fold
" its value." (3) Osier, f.A., agreed with the Chief Justice that
there is nothing in the Act which forbids a fair agreement between
the carrier and the shipper limiting the sum for which, in case
of loss through negligence, the former would be liable, although
the shipper cannot be forced into such an agreement ; and that
in the present case the shipper was estopped from contending
that the horse was of greater value than the amount agreed
upon, u)
Maclennan, J. A., while of opinion that an agreeme it limiting
the amount of damages would be valid, as being in effect a
pre-ascertainment of the amount; held that the contract in ques-
tion, having regard to the freight classification made under sec.
226, did not effect such a limitation. (5) Boyd, C., held that the
limitation of liability fordanuges arising from negligence was in-
valid under section 246. After referring to the section of the
English Railway & Canal Traffic Act, 1854, (6) providing in
terms for the making of a special signed contract by which liabi-
lity may be limited, and the omission of any similar provision from
(I) 21 Ont. A. R. 204. (2) Ibid, at p. 206.
(3) Ibid, at p. 208. (4) Ibid, at p. 218.
(5) Ibid. pp. 225-227. t.6) 17 and 18 Vic., cap. 31, sec. 7.
300 THE RAILWAY LAW OF CANADA.
our Act, the learned Chancellor went on to refer to the case of
Great Western Ry. Co. v. McCarthy, (i) in which cattle were
carried under a special contract at a reduced rate, in considera-
tion of the company being relieved from all liability for damage
or delay, unless loss arose through the wilful misconduct of the
company ; and said : " By this the company were held to be
" protected by a proper condition, for the shipper had the offer
"of a just and reasonable alternative. It may be that legisla-
" tion is needed in Canada to adopt alternative rates; * * * but,
" assuming that it could be done without, here it does not appear
" that any option was given to the phimiff ; he was not told of
" any alternative, nor was there indeed any provision made in
" Canada for the transportation of high price horses at higher
" rates on the road. The company had a uniform rate for
" horses, based, it may be, on some average of weight or value,
" which was charged and paid as a matter of course. And upon
" this they impose the condition that limits the scale of damages
" in case of loss by negligence, which, it appears to me, trans-
" cends the statutory poweis, and is not made any better because
" the shipper has signed the writing in which it is embodied.
" The Canadian Act strikes at this, lest the public be coerced
" by a practical monopoly ; (see Mane .ester Ry. C<f, v. Brown,
11 8 App. Cas. at p. 712) in other words, the attempt is made
" without legislative power to introduce an owner's risk at re-
" duced rates as the standard, so as to relieve the company from
" their full risk, which as carriers they would be subjected to
" by collecting the ordinary or proper rate. Apart from what
" has been said, it appears to me that the whole scheme of th?
11 Canadian Act is repugnant to this method." (2)
In the Supreme Court it was held that the words " shall in
no case be responsible/' contained in the contract, were suffi-
ciently general to cover all cases of loss however caused, and
that the plaintiff could not recover more than $100. The Chief
Justice (Sir Henry Strong) distinguished Vogel's case, (3)
pointing out that nothing there decided established that it was
not competent for a railway company to enter int-> an agreement
for pre-ascertained damages or for Hmited liability. And, after
(I) 12 App. Cas. 218. (2) 21 Ont. A. R. at p. 212.
(3) M S. C. R. 612.
CARRIERS. 301
quoting the section of the Act, said : "This is an enactment
" which should not be extended beyond its literal meaning, and
" that is plainly confined to the prohibition of any contract re-
<l lieving the company from liability for negligence. To say that
" it is to shut out the company from limiting its liability for
" damages by an agreement fixing a value on goods carried*
" would be to extend its language by implication to a case which
" does not appear from any part of the Act itself to have been
"within the contemplation of the legislature. So far. indeed,
" from this being so, we may reasonably infer that the Legisla-
" ture never intended to enact a provision which would mcst
" assuredly have the result so forcibly pointed out in the judg-
" ment of the learned Chief Justice of Ontario, viz., that when it
" was sought to compel the company to carry property of great
" value for rates which would not cover the equivalent of a fair
" premium for insuring, we should find the company refusing to
" carry, and thus, on a calculation of profit and loss, preferring
" to pay damages for such refusal to incurring a risk without
" adequate compensation." (i) He also referred to the case of
Hart v. Pennsylvania Ry. Co., (2) in the Supreme Court of the
United States, tmd quoted the language of Blackford, J., in deli-
vering the judgment of the Court, as follows : " It is the law of
" this court that a common carrier may, by special contract, limit
" his common law liability, but that he cannot stipulate for
" exemption from the consequences of his own negligence or
" that of his servants." (3) Taschereau, J., adopted the rea-
soning of the Chief Justice of the Court of Appeals ; (4) and
Sedgewick and King, J. J., concurred with Sir Henry Strong's
opinion, (5) andGwynne, J.; distinguished Vogel's case chiefly on
the ground that since its decision, a new tariff and classification
of rates had been adopted, ^nd approved by the Governor-in-
Council under sec. 226 of the Act. (6)
The effect of these two important cases (5) is to settle the
law in this country, so that while railway companies may not
under the Act escape from liability for loss occasioned by delay
(i) 24 S. C. R. at p. 616. (2) 112 U. 8.331.
(3) 24 S. C. R., at p. 617. (4) Ib. at p. 618.
(5) Ib. p. 621. (6) Ib., pp. 618-620.
(7) And see Cobban v. C. P. Ry. Co., 26 O. R-732.
302 THE RAILWAY LAW OF CANADA.
or damage through negligence to goods carried by them, under
any condition or agreement to the contrary, yet they may by
special contract limit the amount of loss to be paid, in any rea-
sonable manner : — " an illusory limit or a nominal agreed on
value would not avail." (i)
Limitation of 3. It being without doubt that railway companies as carriers
liability rj -11 c 1-11 i
generally. ot goods are, in the absence of contract, liable at all events and
practically as insurers, it remains to be considered in what way
and to what extent they can limit this liability, apart from the
question of negligence. In the early history of railway com-
panies, the means resorted to of limiting their liability was by
conditions contained in notices posted in their stations and
offices, and by other means sought to be brought to the knowl-
edge of the shippers of goods. Where railway -companies have
attempted to limit their liability by conditions contained in such
notices, they have always been held to strict proof that such
conditions have been brought to the actual knowledge of the
party shipping, and many cases have turned upon the question
as to whether such knowledge was proved or no t. Nowadays,
however, the conditions are almost all invariably inserted in
the bill of lading. The bill of lading is not only a receipt evi-
dencing the delivery to the railway company of the goods speci-
fied in it, and the place of destination, but also constitutes a
contract between the shipper and the carrier, containing the
terms and conditions upon which they mutually agree that the
goods shall be carried, and is usually made out in two parts : one
called the shipping note, being in the form of a request to the
railway company to receive and carry the goods specified, to a
certain destination, upon the terms and conditions expressed
upon its face and back. This shipping note is signed by the
shipper or his agent. The other part of the bill of lading is the
receipt, whereby the railway company acknowledges to have
received the goods, and agrees to carry them to their destination,
upon the same terms and conditions as appear upon the shipping
note. The signing of the shipping note and the delivery of the
receipt to the shipper constitute a contract between them bind-
(i) Per Hagarty, C. J. O., 21 Ont. O. R.at p. 208.
CARRIERS. 303
ing upon both; and it is vain for the shipper af'erwards to con-
tend that he had not read the conditions, for every man is pre-
sumed to have agreed to all the conditions contained in the
document to which he has affixed his signature, (i) This system
of written contract between the parties does away with all the
questions which formerly arose as to proof of knowledge of
conditions on the part of the shipper. The right, of carriers to
limit their liability by conditions expressed in the bill of lading
has long been recognized in this country. The leading case in
Quebec is that of Torrance v. Allan, (2) where the doctrine was
definitely recognized by our Court of Appeals. The shipper was
there held bound by a condition in the bill of lading that, in the
event of the steamship company with which he contracted not
being able to forward his goods by the first ship, they would be
forwarded by the next vessel leaving the port, and his action for
damages for delay in not shipping his goods by the first ship
was dismissed. The conditions which are contained in these
bills of lading are as a rule very numerous, and cases under
varying circumstances are arising every day, and it would be
impossible here to go into them in detail : it will suffice to give
the general principles by which the validity of such conditions
are to be tested. First, as has been pointed out, (3) the com-
pany cannot relieve itself by such conditions from the result of
its own negligence, or that of its servants. Secondly, the condi-
tions must be just and reasonable. (4) So long as no negli-
gence is shown on the part of the company, they would be
relieved from liability, should the case come within any condi-
tion contained in the bill of lading which the court would con-
sider a just and reasonable one.
4. As to what is a just and reasonable condition, the mot Through bills
striking example is that condition by which railway companies °f
(1) Hutchinson on Carriers, §§ 225-229, 237-241 ; Mayers . G. T. Ry. be>'?n<*
Co., 31 U. C. C. P. 248 ; O'Rourke v. G. W Ry. Co., 23 U. C. Q. B. 427 ; cri
Parker v. S. E. Ry. Co., L. R., 2 C P. D. 416 ; Harris v. G. W. Ry. Co.,
L. R., i Q. B. D. 515 ; Grace v. Adams, 100 Mass. 505 ; Morrison v. Phil-
lips, etc., Co., 28 Am. Rep. 599; Kirkland v. Dinsmore, 62 N. Y. 171;
O'Reagan v. Cunard S. S. Co., 160 Mass. 356; McFadden v. Missouri P.
Ry. Co., i Am. St. Rep. 121.
(2) 8 L. C . J. 57. (3) Supra p. 296.
<4) Peek y. North Staffordshire Ry. Co.j 32 L. J. Q. B. 231, 10 II. L.
C. 473-
304 THE RAILWAY LAW OF CANADA.
have attempted to limit th^ir liability in the carriage of goods
on what is called a through bill of lading to such loss, damage
or detention as may occur upon their own line of railway. By
a through bill of lading is meant one by which the company
receiving the goods undertakes to forward them to a point
beyond the limits of its own railway, by means of other carriers,
whether by land or water. It has been a much vexed question
as to whether, in the absence of express contract limiting the
liability of the receiving carrier, the recourse of the shipper is
against him, or the carrier in whose charge the goods were when
the loss occurred. The English rule is that the receiving carrier
is liable, no matter where the loss occurs, that is to say, in the
absence of conditions limiting his liability. The leading case in
England is that of Miischamp v. Lancaster & Preston Ry . Co. (i)
There the shipper delivered to the L. & P. Ry. Co. a parcel of
goods to be carried to a point which was not upon their line of
railway, but was a station on another railway which connected
with theirs. The goods were lost or damaged after having passed
out of the possession of the Lancaster & Preston Ry., and
while in the possession of the other railway company. The Court
held that the contract was one by which the L. & P. Ry. Co.
undertook to forward the goods to the destination named, and
that they were liable for the loss which occurred on the other
railway, who acted merely as their agents in forwarding the goods.
And the same principle was laid down by the House of Lords, in
Bristol & Exeter Ry. Co. v. Collins. (2) The American rule is
the exact opposite ; and it has been definitely held by the
Supreme Court of the United States in the case of the Michigan
Central Ry. Co. v. Myrick, (3) that the general doctrine as to
the transportation by connecting lines of carriers is that each
carrier, confining itself to its common law liability, is only bound,
in the absence of special contract, to carry safely over its own
route and safely deliver to the next connecting carrier. There
would seem to be reason in this doctrine, as the obligation im-
posed upon the railway companies by our statutes is only to carry
over their own railway, and would entail only liability for loss or
(i) 8 M. & W. 421. (2) 7 H. L. C. 194.
(3) U. S. Supreme Ct., 1888, 6 L. N. 69.
CARRIERS. 305
damage occurring to such goods while upon their railway and in
charge of their servants. But the English doctrine prevails in
this country, and can be supported on the ground that, by
receiving goods addressed to a point beyond the limits of their
railway, a railway company enters into an implied contract at
the least to forward and deliver the goods there, and would be
liable in default for breach of contract, the succeeding carriers
acting as mere agents to forward the goods, (i) But where the
carrier receives the goods, an d is paid freight only for carriage
to the end of his route, the fact that, at the request of the shipper,
he undertakes to deliver them to another carrier, for further
transportation, does not make him responsible for the delivery
of the goods at the place of ultimate destination. (2)
5. But inasmuch as railway companies are not bound by law or Limiting
by statute to enter into such contracts, and could not be com- }iability .
beyond, line
pelled to forward goods beyond the limits of their own railway,
they have undoubtedly the right to limit their liability to such
loss or detention as may occur in the transit of the goods over
their own line; and the difficulties which have arisen in the
courts have been over the construction or interpretation to be
placed upon the conditions by which railway companies have
attempted to limit their liability in such cases. The ordinary
form of condition which has been used by railway companies with
this object has been to the effect that, where goods are destined
for points beyond the limits of the railway receiving them, the
company would forward the goods by public carrier or otherwise
as might be convenient, and that the company's liability should
cease upon either the delivery of the goods to such connecting
carrier, or the deposit of the same at the last station of their line,
and upon notice to the connecting carrier that the same were
ready for further transportation, and a further condition that the
company would not be responsible for any goods lost, damaged,
missent or delayed, where such loss, damage or delay occurred
(1) Merchants Despatch Co. v. Hately, 14 S. C. R. 573 ; G. T. Ry.Co. v.
McMillan, 16 S. C. R. 543 ; Gn>nt v. Northern Pacific Ry. Co., 22 O. R.
645 ; Gautl.ier v.C. 1'. Ky. Co., Que. Q. B., 1893, I M. L. D. & R. 572,
confiimcd in appeal Q. R. 3 Q. B. 136, and see 2 Pardessus576 ; 2 Bcdarride
Ch. de Fer 424.
(2) Jeffrey v. Can. Shipping Co., M. L. R., 7 Q. B. I.
306 THE RAILWAY LAW OF CANADV.
after the goods had been delivered at the station nearest to the
point of destination and beyond their limits. In the Province of
Quebec this condition has been almost invariably held to relieve
railway companies from loss or damage resulting from injury or
delay to goods occurring in the carriage of the goods upon the
lines of other railway companies than that receiving the goods.
The leading case is that of Chartier v. G. T. R. Co., (i) where
goods were delivered to the Grand Trunk Railway Company to
be carried to a point in the United States, the bill of lading con-
taining conditions similar to those which have just been men-
tioned. The goods were carried by the G. T. Ry. to Rouse's
Point, and there delivered to the Central Vermont Railway Com-
pany for further carriage to their destination, and were damaged
in transit on the railway of the latter company. In an action by
the owner against the G. T. R. Co. for the consequent loss,
the action was dismissed, upon the ground that the condition
was a just and reasonable one, and relieved the railway com-
pany. This decision was followed by a number of others in
the same sense. (2)
In a case of Charbonneau v. C. P. A'., (3) however, Mr. Justice
Gill departed from the previous jurisprudence of the Superior
Court, and held that the railway company was responsible. There
the plaintiff had shipped a carload of apples by the C. P. R.
Co. to London via New York, on a through bill of lading con-
taining the conditions above mentioned. It was proved that the
shipper knew that the defendant's line of railway only went as far
as Brockville, and that at this point the goods would be trans-
shipped to other connecting carriers, and by them carried to
New York, and thence by ship to London. The Judge held that
the company's contract was to carry the goods to New York,
and that though it was proved that the damage to the apples
occurred after their arrival at New York, but before their delivery
to the steamship company, he held that the defendants were
liable. This judgment, however, was reversed by the Court of
Appeals, (4) who held that the true meaning of the condition
(1) 17 L. C.J. 26.
(2) Pratt v. G. T. R., I L. N. 69 ; Robichaud v. C. P. R. Co., 8 I.. N.
314 ; Dionne z. C. P. K., M. L. R., i S. C. 168, confirmed in Review
June 30, 1885 ; Beaumont v. C. P. R., M. L. K. , 5 S. C. 255.
(3) 19 R. L. 317. (4) Ibid.
CARRIERS. 307
was that the defendants were only liable for such damage as
might occur during the transit of the goods on their own line, and
the condition being just and reasonable and agreed to by the
shipper, they were relieved. The question has come up, however,
before the Supreme Court, and been decided in an Ontario case,
(1) where the Supreme Court held that similar conditions did not
relieve the company contracting from loss occurring in the
transit of the goods to the point of destination, but did relieve
the company for the loss occurring after their arrival. In that
case, the G. T. R. Co. undertook to carry certain goods on a
through bill of lading to Portage La Prairie, a station on the line
of the C. P. R. The bill of lading contained a condition similar
in effect to those already cited, providing that the company should
not be responsible for any loss or " ** damage ** that might
" happen to goods sent by them, if such loss ** or damage
" occurred after such goods arrived at the stations or places on
" their line nearest to the points or places which they were con-
" signed to, or beyond their said limits." The goods arrived
safely at Portage La Prairie, and the loss occurred after their
arrival there but before their delivery to the consignees. The
Court held that the language of the condition did not relieve the
company for any loss which might have occurred in the transit.
This opinion of the court was obiter, as being unnecessary to the
decision of the case, the loss having occurred after the transit
had been completed, but is of course entitled to great respect,
and was arrived at in accordance with the decision ot the House
of Lords in the case of the Bristol & Exeter Railway v. Collins.
(2) These two cases will repay careful perusal. They are too
lengthy to deal with in detail here, but it is well to note that the
conditions in the Collins case were not the same as those in the
McMillan case, as was ably pointed out by Judge Strong in the
(1) McMillans. G. T. R. Co., 15 Ont. A. R. 14, 16 S. C. R. 543;
see also Rogers v. G. W. Ry. Co., 16 U. C. Q. B. 389 ; Lapointe -v. G. T.
Ry. Co., 26 Q. B. 479 ; Devlin v. G- T. Ry. Co., 30 Q. B. 537 ; Gordon
v. G. W. Ry. Co., 34 Q. B. 224 ; Mason v. G. T. Ry. Co., 37 Q. B. 163 ;
Rennie v. Northern Ry. Co., 27 U. C. C. P. 153 ; Roach v. C. P. Ry. Co.,
I Man. 158 ; and Hamilton v. G. T. Ry. Co., 23 U. C. Q. B. 600 ; Bates
v. G. W. Ry. Co., 24 Q. B. 544; Spettigue v. G. W. Ry. Co., 15 C. P. 3 15;
Braugh v. G. T. Ry. Co., 26 Q. B. 479.
(2) 7 H. L. C. 194.
308 THE RAILWAY LAW OF CANADA.
Supreme Court. The House of Lords in effect held that, what-
ever the railway company may have intended to express by these
conditions, their language could only be interpreted to limit the
liability of the company after the delivery of the goods at the
point of destination. The decision of the Supreme Court is clear,
however, upon one point, that inasmuch as the railway company
are not bound by statute or by the common law to carry goods
beyond the limits of their own line, they can relieve themselves
by contract from liability for losses occurring beyond such limits,
and that though such contract is one to carry or forward the
goods to their ultimate destination, and the connecting carriers
are only to be looked upon as agents of the contracting company,
still, conditions may be made which, if properly framed, would
relieve the contracting company from liability for the losses
which might occur while the goods were in transit in the hands
of other carriers. This doctrine has been recognized also in
England in the case of Aldridge v. Great Western Railway
Company, (i) where a condition by which the contracting rail-
way company was relieved from liability for loss occurring to
goods while in transit over the line of another railway com-
pany was held to be just and reasonable, and to relieve the
railway company from loss.
There was a strong opinion expressed in the MacMillan
case (2) by Strong and Taschereau, J. J. (Gwynne and Four-
nier, J. J., diss.), that the loss having occurred after the transit
was over and the goods delivered, the liability of the company,
as carriers, had ceased, and the condition reduced the contract
to one of mere bailment as soon as the goods were delivered, and
also exempted the company from liability as warehousemen, and
the goods were from that time in the custody of the company on
whose line Portage La Prairie was situated, as bailees for the
shipper.
The conclusion to be derived from these cases appears to be
this, that by issuing a through bill of lading to a point beyond
the limits of its own road, a railway company enters into a con-
tract to carry or forward the goods to that point, and the other
carriers over whose line it may be necessary that the goods should
(1) 33 L. J. C. P. 161 ; and see Fowles v. G. W. Ry. Co., 22 L. J. Ex.
76 ; and Mytton v . Midland Ry. Co., 28 L. J. Ex. 385.
(2) I6S.C. R. 543-
CARRIERS. 309
pass, in order to reach their destination, must be looked upon as
the agents of the contracting company, and for failure to deliver
goods at their destination, or for any loss which may result by
injury to or detention of the goods while in the course of transit
over these connecting lines, the contracting company is liable,
unless by the clear terms and express conditions of the contract
of carriage it has exempted itself from such liability ; and such a
condition so exempting a contracting carrier is just and reason-
able,"and will be given force and effect to by the Courts, (i)
6. Among the conditions which have been considered by the Other condi-
Courts valid as relieving railway companies from liability, there fi
are special conditions necessitated by the nature of the goods
carried. Certain kinds of merchandise naturally necessitate
special conditions, and especially is this the case with regard to
perishable or fragile goods. It has been held in England that a
condition that fresh fish would only be carried under special
agreement and by particular trains, and that the company should
not be held responsible under any circumstances for loss of
market or other injury arising from delay or detention of trains,
exposure to weather, storage, etc., or from any causes other than
gross neglect or fraud, was just and reasonable and binding on
the shipper. (2) On the other hand, a condition excluding all
risks whatever of conveyance, loading and unloading, upon the
(1) The Merchants Dispatch Transportation Co. contracted to carry a quan-
tity of butter from London, Ont., to England, the butter to be carried from
London to the Suspension Bridge at Niagara Falls by the Great Western Ry
Co., thence to New York by the Transportation Co., there to be delivered
to a steamship company for carriage to England. A clause in the bill of
lading provided, that if damage was caused to the goods during transit, the
sole liability was to be on the company having the custody of the goods at
the time of such damage occurring. The butter was carried to New York,
and there placed on lighters belonging to the Transportation Company to be
conveyed to the SS. '' Dorset." Owing to the lighters not being able to get
alongside the steamer, she sailed without the butter, and it was only forwarded
five days later by another vessel of the steamship company. In the mean-
time, the butter was damaged by heat while still in the lighters. It was held
by the Supreme Court, affirming the judgment of the Ontario Court of Appeals
(12 Ont. A. R. 201) that the Transportation Company, having made a contract
for the through carriage of the goods, were liable for the damage, and were
not relieved under the clause in the bill of lading, as the butter was never
delivered to the steamship company, but was in the custody of the Trans-
portation Company when the damage occurred. Merchants Despatch Trans-
portation Company v, Hitely, 14 S. C. R. 572.
(2) Beal v. South Devon Ry. Co., n L. T. N. S. 184, 29 L. J. Ex. 441.
310 THE RAILWAY LAW OF CANADA.
ground that the company refused to be responsible for any injury
or damage, however caused, occurring to live stock, was held to
be unreasonable, (i)
The same rule has been applied in the State of New York with
regard to another perishable article — plate glass, in the case of
Nelson v. Hudson River Ry. Co. (2) And the same principle
has been recognized in the Quebec Courts as to carriers by water
in the case of Mongenais v. Allan. (3) Plate glass is a very good
illustration of one kind of perishable goods against loss for which
railway companies or other carriers have the right to protect
themselves. Its value is great, and it occupies a large space and
is very subject to breakage, and carriers generally in this country
have refused to carry plate glass except upon special conditions,
either relieving them from liability for breakage, or upon payment
of an extra rate of freight as insurance. There is nothing in the
Railway Act which would prevent companies from imposing a
special rate upon the carriage of such goods, provided that such
rate be charged equally to all persons under the same circum-
stances for the same class of goods ; but, of course, any such
rates would have to be approved by the Governor in Council,
(4) and, under the recent decisions, (5) would not relieve car-
riers from liability if breakage should occur from negligence. If
perishable articles, such as fruits, are damaged by their own
weight and the inevitable shaking of the carriage, they are injured
through their own intrinsic qualities. If, through pressure of
other goods carried with them, or by an extraordinary shock or
shaking, whether through negligence or not, the carrier is liable.
Another condition, with regard to defects in the thing itself, or
the " proper vice," as it is called in England, is that by which
companies seek to relieve themselves from liability for injury to
live animals occasioned by their unruliness, kicking, plunging,
etc. Such a condition has been held to be reasonable and bind-
ing in England in the case of K<ndal v. London & S. IV. Ry. Co.
(1) McManus v. Lancashire & Yorkshire Ry. Co., 28 L. J. Ex. 353.
(2) 48 N. Y. 498.
(3) Q. R. i, Q. B. i8r.
(4) Cobban v. C. P. Ry. Co., 26 O. R. 732.
(5) Sujra, pp. 297 et seq.
CARRIERS. 311
(i) That was the case of the carriage of a horse. On arrival,
he was found to be much cut about, especially about the forelegs
and fetlock joints. It was admitted that the defendants had
been guilty of no negligence, and the point involved was whether
they were liable, as insurers, for the safety of live animals as in
the case of goods. The jury entered a verdict for the plaintiff,
but the question of liability was reserved for the full court. The
opinion of Baron Bramwell clearly expresses the doctrine in such
cases. He said : " The horse was the immediate cause of its own
" injuries. It slipped, or fell, or kicked or plunged, or in some way
"hurt itself. If it did so from no cause other than its inherent
"propensities, its propervice, defendants are not liable ; but if itso
" hurt itself from the defendant's negligence or any misfortune hap-
pening to the train, though not through any negligence of defen-
" dants, as, for instance, from the horse-box leaving the line
" through some obstruction maliciously laid upon it, then the
"defendant would, as insurers, be liable."
The consignee cannot refuse to receive the goods from the
carrier because they were damaged, but has his remedy in an
action of damages. (2)
Where goods are taken at a cheap rate of carriage, the com-
pany will not be liable for damages caused by the packing
being insufficient, and where the goods were wrongly described.
For instance, where the goods were electrical fittings in china
and porcelain, and were described as hardware, it was pointed
out that the company's servants would not handle with the
same care goods which they understood to be hardware, as
they would a case of china. (3) In another case, a piano carefully
packed was handed to the carriers, and it was received by the
consignee in a damaged condition. It did not appear clear how
the damage was sustained, and the Court, holding that the burden
of proof being upon the carriers to show that the damage had not
occurred through their fault or negligence, which they failed to
(1) 41 L. J. Exch. 184 ; 26 L. T. N. S. 735 ; and see Blower v. G. W.
Ry. Co., L. R , 7 C. P. 655. 41 L. J. C. P. 268 ; and Hawkins v. G. W.
Ry. Co. (I5th Feb., 1895).
(2) Halcrow v. LeMesurier, 21 Rev. Leg. 28 ; Bailly v. R. & O. Nav. Co.,
20 Rev. Leg. 127.
(3) Connelly v. The Great Northern Ry. Co., 15 Legal News 365.
3I2
THE RAILWAY LAW OF CANADA.
Liability of
succeeding
carriers.
do, were liable ; but the dissenting judge thought that as the piano
was of a new patent type, and contained attached to the wires
160 weights of one pound each, the express company not
being informed of its unusual character, could not be supposed
to handle it with a care beyond that required for an ordinary
piano, (i)
Where the company's time-table showed that the time for
transporting between two places was two hours, a delay of twenty-
four hours for carriage of fresh meat in summer was held unrea-
sonable. (2)
The heating of hay causes an increased evaporation and a
corresponding shrinkage, and proof of this will exonerate the
carrier from short delivery. (3)
7. A carrier who receives goods en route from another carrier,
and enters them on his way-bills, and collects the freight, is, never-
theless, not responsible for goods lost by the first carrier. (4)
Neither is the second carrier responsible for delay in the
delivery of the goods, caused by an error in the way-bill of a
preceding carrier, delivered to the succeeding carrier with the
goods, the way-bill stating the wrong place of destination. (5)
Where a railway company received from another company a
sealed car said to contain 150 barrels of flour, and transported it
to destination, when, on the car being opened, it was found to
contain only 142 barrels, the Court held that the second carriers,
not being parties to the original bill of lading, were not bound
by it, and had fulfilled all their obligations by the delivery of the
contents of the sealed car. (6)
In another case, certain bars or bundles of iron came by ship
from Glasgow to Montreal consigned to the plaintiff at Guelph,
Ont. His agent gave to the agent of a railway company an
order to get the goods from the ship, and afterwards received
(1) Ouimet v. The Canadian Express Co., 32 L. C. J. 319.
(2) Delormez'. C. P. R., n Leg. News 106 ; and see Pontbriand v. G. T.
R., M. L. R. 3, S. C. 61.
(3) Seymour?'. Sincennes. i R. L. 716 ( Q. B. 1869).
(4) Behan v. G. T. Ry. Co, 17 Q. L. R. 299 ; in this case, defendants
were condemned to pay the costs of the suit, as the plaintiff w.is misled by
their way- hills.
(5) Trester v. C. P. Ry. Co , Q. R., I Q.B. 12.
(6) Wade v. C. P. Ry. Co., 8 L. N. 348.
CARRIERS. 313
from the railway company a receipt specifying the number of bars
and bundles and the gross weight, with a printed notice on the
face of the receipt that " rates of weights entered in receipts or
shipping bills will not be acknowledged." All the iron received
by the railway company was delivered at Guelph, but there was
a very considerable deficiency in the weight as stated in the
receipt. So far as appeared, the iron had not been weighed
either on being taken from the ship or afterwards. It was held
that the railway company were not estopped by the statement of
weight in the receipt, and were not liable for more than they
actually received from the ship and delivered to the plaintiff, (i)
8. Again, the question arises, when does the contract of carriage When con-
begin so as to fix upon the company the responsibility of carriers ? ir.act ? °?r~
The following case may be taken as a good illustration of the
question. Plaintiff delivered a planing machine to defendants to
be carried between two stations. In placing it on board a car for
that purpose, defendants' servants injured the machine by negli-
gence or want of proper appliances. It was held that defendants
were liable, notwithstanding the special con tract that the machinery
was to be carried at the owner's risk. (2) As was said in that case,
"when the plaintiff placed the planer on the platform, paid the
freight, and made, tacitly or otherwise, the agreement for carriage
expressed in the receipt note, an implied contract arose between
him and the defendant company that the latter would, with reason-
able care, take the machine and carry it under the terms and
conditions of the receipt note." (3) " I think it may be
further said, with good reason, that the limited contract contained
in the receipt note was made on the assumption that the company
would provide proper means for putting the planer on their cars,
and that in this view the decision of G. T.R. v. Fitzgerald (4)
will apply." (5) The conditions of carriage contained in the
bill of lading or receipt note do not extend to what occurs before
(1) Horseman v . G. T. Ry. Co., 31 U. C. Q. B. 535 ; see also Milliganz'.
G. T. Ry. Co., 17 C. I'. 115.
(2) Whitman v. W. C. Ry. Co., 5 Russ. & Geld. 405 ; and see G.T. R.
•v. Mountain, 6 L. C. J. 173.
(3) Whitman v. W. C. Ry. Co., 5 Russ. & Geld, at p. 409.
(4) 5 S. C. R. 204.
(5) Whitman v. W. C. Ry. Co-, 5 Russ. & Geld, at p. 409.
314 "''HE RAILWAY LAW OF CANADA.
the lading, (i) In another case (2) where the plaintiffs
shipped lumber by the defendants, loading the car themselves,
there was a short delivery of the lumber, and no evidence as to
how the loss occurred, it was held that the defendants were
liable. But if the defendants could have shown that the
plaintiffs agreed to do the loading, and loaded the lumber so
badly, that it was lost through their improper loading, that no
doubt would make out a defence, unless it could be shown that
by the use of ordinary care the damage would not have been as
extensive as it proved to be. (3)
Contract, of <). Where the only evidence of the contract to carry was that
of aeent s ^ie f°rernan of the freight department at one of the defendants'
stations agreed to have certain trees forwarded to a station not
on the defendants' line, but on one connecting therewith, it was
held that this was evidence to be submitted to a jury of a con-
tract to that effect binding the defendants. (4) In another
case (5) plaintiff sent by another man a box of goods to be for-
warded on the defendants' line, who, seeing several men working
at the freight shed, told one of them he had a box to forward.
The man told him " to bring it and put it in there," which he did.
He got no receipt. The box was lost. Plaintiff then went to
the station and saw the man already referred to, who admitted
he got the box, but could not say what he had done with it. It
was held that the admission of the man whom plaintiff saw was
not admissible as evidence against the defendants, and as it was
the only evidence of delivery, the plaintiff should be non-
suited. (6)
The very recent case of Northern Pacific Railway Company
v. Grant (7) affords a good illustration of the powers of an
agent to bind the railway company. There one Evans, residing
(1) Tattersall t/.Nat. St. Co.,L. R., 12 Q. B. D. 297.
(2) Henry v . C. P. R., I Man. 210.
(3) Id. & Hutchinson v. Guion, 5 C. B. N. S. 149; Hart v. Jones, Stuart's
Rep., p. 589.
(4) McGill v. G. T. R , 19 Ont. A. R. 245.
(5) Young v. C. P. R., i Man. 205.
(6) And see Leigh v. Smith, I C. & P. 638 ; Griffin v. The Great
Western Ry. Co., 15 U. C. Q. B. 507; Slim v. The Great Northern Ry.
Co., 14 C. B. 647; The Great Western Ry. Co. v. Willis, 18 C.B. N. S.
748.
(7) 24 S. C. R. 546; affirming 21 Ont. A. R. 322, 22 O. R. 645.
CARRIERS. 315
at Victoria, B.C., being about to purchase goods from a firm of
Grant & Co. in Ontario, wrote to that firm, at the request of the
railway company's agent at Victoria, asking them to ship the
goods via Grand Trunk Railway and Chicago & N. VV., care of
the Northern Pacific at St. Paul's. The freight agent at Victoria
forwarded the letter to the freight agent of the latter company at
Toronto, who sent it Grant & Co., writing them himself as
follows ; — " I enclose you card of advice, and if you will kindly
" fill it up when you make the shipment and send it to me, I will
" trace and hurry them through, and advise you of delivery to
" consignee." Grant & Co. shipped the goods as suggested in
this letter, deliverable to their own order. It was held that on
arrival of the goods at St. Pauls, the Northern Pacific were bound
to accept delivery of them for carriage to British Columbia, and
to expedite such carriage; that they were in that company's
care from St. Paul's to British Columbia ; that the agent at
Toronto had authority to bind the company ; and that the com-
pany were liable to Grant & Co. for the value of the goods,
which were improperly delivered to Evans without an order from
Grant & Co. and not paid for. (i)
The company will not be excused from liability because the
disregard of duty on the part of the agent was willful. ^2) In
determining the liability of the company for the acts of its agents,
the true inquiry is whether the agent was acting within the scope
of his employment. If so, his acts bind the company, whether
willful or negligent. (3)
1O. The carrier's interest in this question, says Mr. Redfield in
his work on railways, arises only when he is required by the ven-
dor, while the goods are still in his possession, to redeliver them to
him or some one on his account. After such demand, it becomes
important to the carrier, to determine whether the right to reclaim
the goods still exists. For if so, and the carrier decline to re-
deliver them, or deliver them to the vendee, he and all persons
claiming to detain them against the claim of the vendor become
liable for the value. (4) The authorities show that the vendor has
(1) See also as to authority of agents, supra, pp. 29-30.
(2) Weed v. Panama Railroad Co., 5 Duer 193.
(3) Redfield, Vol. 2, § 182, sec. 3, note 2.
(4) Redfield, Vol. 2, § 186, No. 8-10 ; Campbell v. Jones, 3 L. C. J. 96.
316 THE RAILWAY LAW OF CANADA.
aright to stop in transitu until the goods have actaally got home
into the hands of the purchaser, or of some one who receives
them in the character of his servant or agent. In order that the
vendor should have lost that right, the goods must be in the
hands of the purchaser or of some one who can be treated as his
servant or agent, and not in the hands of a mere intermediary, (i)
Tiie law has been very clearly and accurately laid down by the
Master of the Rolls in the case of Bethell v. Clark, (2) which was
approved by the Privy Council in Lyons v. ffojffnung. (3) He
says : " When the goods have not been delivered to the purchaser,
or to any agent of his to hold for him otherwise than as a carrier,
but are still in the hands of the carrier as such, and for the pur-
poses of the transit, then, although such carrier was the pur-
chaser's agent to accept the delivery so as to pass the property,
nevertheless, the goods are in transitu and may be stopped."
And in the same case, Cave, J., said : " When the goods have
arrived at their destination and have been delivered to the pur-
chaser or his agent, or when the carrier holds them as warehouse-
man for the purchaser, and no longer as carrier only, the trans-
itus is at an end." The doctrine of stoppage in transitu has
always been construed favorably to the unpaid vendor, (4) and
on these grounds, we can reconcile the Ontario case of Anderson
v. Fish (5) with the general statement of the law as given above.
In this case, the defendants, unpaid vendors of goods, shipped
them over the Grand Trunk Railway to the vendee at W. When
the goods arrived, the railway company's agent at W. sent
an advice note to the vendee, who refused to take it. After this,
the vendee assigned to the plaintiff for the benefit of his creditors,
and the plaintiff, as soon as the assignment was delivered to him,
produced it to the railway company's agent, and claimed the goods,
offering to pay the freight, but producing no advice note. The
agent did not refuse to deliver the goods, but stated that, accord-
ing to the rules of the company, when the person claiming the
goods was an assignee for the benefit of creditors, his duty
(1) Per James, L. J., in Ex Partej Rosevear China Clay Co., n Ch. D.
560 at p. 568.
(2) L. R., 20 Q. B. D. at p. 617.
(3) !5 App. Cas. 391 (1890).
(4) Bethell v. Clark, L. R., 20 Q. B. D. 617, Lord Esher, M. R.
(5) 1 6 O. R. 476. Confirmed in appeal, 17 Ont. A. K. 28.
CARRIERS. 317
was to telegraph to the company's solicitor for instructions ; he
did so telegraph, but before he received an answer, and on the
same day, the vendors notified him not to deliver the goods to
the vendee or his assignee, asserting a right to stop them in
transitu. It was held (Falconbridge, J., dissenting) that the action
of the railway company's agent in delaying till he received
instructions from the solicitor was not wrongful ; that the transitus
was not at an end when the vendors intervened, and the right of
stoppage was well exercised.
.11. It has been a much discussed point as to whether railway Liability after
companies continue to be liable as common carriers after thearrlj
... goods,
arrival of the goods at their destination. On arrival of goods, it
is customary for railway companies to give notice to the con-
signee or person to whom the goods are addressed, of their \J
arrival, and that the goods will be stored and will remain at the
risk of the consignee, unless taken delivery of immediately, (i)
The principle seems to be generally recognized that the respons-
ibility of the company as common carriers ceases after the goods \/
have arrived at their destination, and a reasonable time has been
given to the owner to remove them. And that after the expira-
tion of such reasonable time, their liability|as carriers would cease,
and that they would thenceforward be liable as warehousemen, ^
or bailees for hire or otherwise, as they might or might not charge
for the storage of goods ; that is to say, that their liability would
no longer be that of insurers, or a liability at all events, except
in cases where they would prove that the loss occurred through a
fortuitous event or irresistible force, but would depend upon
whether they were guilty of negligence or not. In other words,
if the owner or consignee of the goods chooses to leave them in
the possession of the company after their arrival, it is a voluntary
deposit, and the company would be only held to the diligence
which is required of depositaries in such cases, — that is to say,
they would be held to the care of a prudent administrator, as it is
expressed in the Quebec Code. (2) The goods would remain in
the hands of the company at the risk of the owner or consignee,
but the company would be liable if they were injured or damaged
through any want of care or negligence on the part of the com-
(i) And see Ry. Act, sec. 234. (2) C. C. 1802.
318 THE RAILWAY LAW OF CANADA.
pany. The contract of the railway company as common carriers
of goods ceases on the arrival of the goods, and their only obliga-
tion thereafter is to exercise reasonable care in preserving them
until called for ; and if the consignee or owner, after having
received notice of their arrival, neglects to take delivery within a
reasonable time, there is no logical reason why the company
should be held responsible for loss or damage happening to the
goods without negligence on their part.
These principles may be illustrated, by the following decisions :
In the case of the Grand Trunk Ry. v. Gut/nan (i), where
notice of the arrival of goods had been given by the com-
pany to the consignees, and that they remained entirely at
the owner's risk, and that the company would not hold them-
selves responsible for damage, but if stored, that a certain
rate of storage would be charged, which storage was paid,
the Court of Appeal for Quebec held that though the lia-
bility of the company as common carriers ceased by the arrival
of the goods, they were still liable for damage as warehousemen
and bailees for hire, but that the evidence did not show any
negligence on the part of the railway company. This holding
was by the majority of the Court, composed of Chief Justice
Duval and Judges Monk and Stuart, but the minority, composed
of Judges Badgley and Drummond, held that by law negligence
was presumed, if damage was shown, and that the onus of proof
of care was on the company, who had made no proof to rebut
this presumption. The general principle laid down by the major-
ity of the Court in this case appears to be undoubtedly correct.
The only doubtful point is as to whether the burden of proof is
upon the railway company to negative any presumption of
negligence, or upon the owner to prove negligence on the part of
the company. It would appear that the proper doctrine was
that held by the majority of the Court, for while in the case of an
accident upon the railway, such as the derailment of a train,
there is a presumption of negligence which has to be rebutted by
the company, (2) there would not be the same reason for pre-
suming negligence in the case of loss or injury to goods when in
(1) 3 R. L. 452.
(2) Chalifoux v. C. P. Ry. Co., Cassel's Dig. 749. 22 S. C. R. 721.
CARRIERS. 319
their possession as warehousemen. There, their liability would
depend upon negligence, and the fact, for instance, of the burning
of the warehouse or station building would hardly constitute a
presumptive case of negligence. The plaintiff's case depending
upon the negligence of the company, it would be necessary for him
to make out at least zprimafacie case, in order to recover. In
other words, the plaintiff would have to show some fault on the .
part of the company as warehousemen, in order to maintain his **
action, (i)
In two earlier cases, where actions were taken to recover value
of goods left at a station to be forwarded, but stored during a
snow storm, it was held, notwithstanding that the company had
given notice by public advertisement and otherwise that they
would not be liable for damage by fire, and notwithstanding
evidence that plaintiff had read one of said notices, that inasmuch
as the storage of cotton waste in the building in which goods
to a very large extent were stored amounted to negligence on
the part of the company, they must be held liable. (2)
In an early Ontario case (3) it was held that where goods were
landed from a ship at the port of destination, and notice of
arrival given, the liability of the carrier ceased. In Inman v.
1 he Buffalo & Lake Huron Railway Company, (4) goods were
shipped from Buffalo to Caledonia for the plaintiffs, who lived at
Port Dover, 18 miles from the station. Draper, C. J., held
that the defendants had a right to deliver at Caledonia imme-
diately after arrival, and, that being the terminus of the transit,
their duty was fulfilled by placing the goods in a safe place, and
whatever the responsibility of the company after that might be,
it was not that of common carriers. Plaintiff had no right, he
(1) Bowie v. Buffalo, Brantford & Goderich Ry. Co.; 7 U. C. C. P. 191 ;
O'Neill t/.G. W. Ky. Co., 7 U. C. C. P. 203; Brodie v. Norll em Ry.
Co., 6 O. R. 180 ; Walters v. C. P. Ry. Co., I North West Ter. 17 ;
Richardson v. C.P.Ry.Co., 19 O. R. 369 ; Hogan v. G.T.Ry. Co., 2 Q.
L. R 142 : Kellert v, G. T. Ry. Co., 22 L. C. J. 257.
(2) G. T. Ry. Co. v. Huston, 3 L. C. J. 269. S. C. Que. ; G. T. Ry. Co.
v. Mountain, ('> L. C. J. 173, Q. B. Que.
(3) McKay v. Lockhart, 4 O. S. 407.
(4) 7 U". C. C. 1'. 325 ; and see Bowies. Buffalo, Brantford & Gcderich
Ry. Co., 7 U.C. C. I'. 191 ; Masons. G. T. R., 37 U. C. Q. B. 163; Hall
v. G. T. R., 34 U.C. Q. B. 517 ; O'Neill v. Great Western Ry. Co., 7 U.
C. C. P. 203 ; Mayer v. G. T. R., 31 U. C. C. P. 248 ; Leader v. The North-
ern Ry. Co., 3 O. R. 92.
320 THE RAILWAY LAW OF CANADA.
said, to continue the defendant's responsibility by delaying for a
single hour after notice.
Where, however, it is the practice of the company to deliver
to the consignees the goods brought by them, and the freight
charges include cartage, a condition that " the company will
not be responsible for any goods left until called for, or to order,
warehoused for the convenience of the parties to whom they
belong, or by or to whom they are consigned, and that the delivery
of goods will be considered complete, and the responsibility of
the company will be considered to terminate, when placed in
the company's shed or warehouse," would only affect the com-
pany as carriers, and not relieve them from liability as ware-
housemen, (i)
Where the station was some five miles distant from the village
where the plaintiff's place of business was, it was' held that the
station was the destination of the goods and not the village ; and
the railway company's liability as carriers ceased on delivery at
the station. (2)
In England it has been held that where cattle arrived on Sunday
about noon, and because police regulations forbade driving them
through the streets on that day, the company's servants and a
servant of the plaintiff's put them in a pen, and when the owner
came for them on the following morning, two were found dead, the
liability of the defendants as carriers ceased when they put the
cattle in the pen. (3) In another case the contract was to carry
goods from A. to B., to be forwarded to C. The defendants did
carry the goods from A. to B., and deposited them in their ware-
house, but before they had an opportunity of forwarding them,
the goods were burnt. It was held, the defendants were not liable
as carriers. (4) In Chapman v. The Great Western Railway
Company, (5) where goods arrived on the i'4th and 25th, and
were burned on the 27111, and the defendants were held not to be
liable, Coleridge, J., said: •' Plaintiff cannot, for his own con-
(1) McCro.-sen v. G. T. R., 23 U. C. C. P. 107.
(2) Richardson v. C. P. R., 19 O. R. 369.
(3) Shepherd r. Bristol & Exeter Ky. Co., 37 L J. Ex. Ch. 113.
(4) Garside v. The Proprietors of the Trent & Mersey Navigation Co., 4
T. R. 581.
(5) L.R.,5 Q.B.I). 278.
CARRIERS. 321
venience, prolong the heavier liability of the carriers beyond a
reasonable time."
In the United States it has been held that the mere landing and
putting off the goods in their warehouse ends the liability of the
carriers as such. It is a delivery by the company as carriers to
themselves as warehousemen, (i)
12. A question arises as to when the disability of a company to Liability as
contract away its liability for negligence under sub-sec. 3 of sec. warehouse-
246 of the Railway Act, ceases — that is to say, when are the goods
to be considered as " discharged " ? It was held in Scarlett v.
The Great Western Ry. Co., (2) which was governed by a sec-
tion exactly similar to the above, that this section does not
extend to all cases in which negligence is charged against the
railway company, but to cases only of neglect coming within the
provisions of the ten preceding sub-sections. On these grounds it
was decided in the recent case of Walters v. C. P. R., (3) that
a company can restrict its liability "for loss or damage done to
goods left until called for, and warehoused for the convenience of
the parties to whom they are consigned.. ... the warehousing
of all goods to be at the owner's risk and expense," and that
when the goods were placed in the warehouse they were dis-
charged within the meaning of the Act. And it was held in this
case that where the goods began to arrive at their destination at
about the 5th of May, and some came each day thereafter, until
the last arrived, at about noon on Sunday, the i2th day of May,
and a fire occurred about noon on the following day, a reasonable
time had elapsed to allow the plaintiffs to remove their goods.
(4)
13, The consignee must have reasonable time within which to Reasonable
take away the goods, and that reasonable time begins from notice time (or re~
moval.
or knowledge ; what is notice or knowledge turns on the facts in
each case, the custom of the carrier and the practice of the party
(1) Norway Plains Co. v. Boston & Me. Ry. Co., I Gray 263.
(2) 41 U. C. Q. B. 211.
(3) i North West Territories 17, 1887.
(4) And see Vineburg v. G. T. R., 13 Ont. App. 93 ; Hodkinson v. The
London & N. W. Ry. Co., L. R. 14 Q. B. D. 228, where baggage which arrived
at 4.25 p.m. was called for at 6 o'clock of the same day, but could not be
found. Held, that the defendants' responsibility as carriers had ceased when
an opportunity was afforded the plaintiff of taking delivery of his property.
21
322 THE RAILWAY LAW OF CANADA.
or consignee, (i) The American authorities, on the subject
of notice of arrival, are very conflicting. Judge Cooly, in render-
ing the opinion of the Court in Me Millan v. Michigan Southern &
Northern Indiana Railroad Company, (2) says : " I am unable to
discover any ground which to me is satisfactory, on which a com-
mon carrier of goods can excuse himself from personal delivery
to the consignee, except by that which usage has made a substi-
tute. To require him to give notice when the goods are received,
so that the consignee may know when to call for them, imposes
upon him no unreasonable burden." The time in general
regarded as reasonable would be such as might in reason and
justice be deemed sufficient for any resident of the vicinity to
come for the goods with the usual appliances for cartage or dray-
age to be had under any ordinary circumstances. (3) The carrier's
liability does not cease until the goods have been placed in a
position to be handled by the consignee without unreasonable
inconvenience. (4) Where, however, goods are detained by the
company for payment of freight, they remain at the risk of the
owners, (5)
The question as whether the consignee of goods carried as
freight or a passenger taking luggage with him has, in a particular
case, applied for the goods or luggage within a reasonable time
after their arrival, is a question of fact to be determined in each
case from circumstances. (6)
Carriers of Passengers.
Nature of -^* It has been already pointed out that there is a distinction
liability. between the liability of railway companies as carriers of passen-
gers and as carriers of goods. (7)
As carriers of goods in the absence of special contract, they
are practically insurers of the things entrusted to them for
carriage ; but as carriers of passengers,[they are liable for injuries
(1) Richardson v. C. P. R. , 19 O. R. 369 ; Chapman v. Great Western
Ry. Co., L. R., 5 Q. B. D. 278.
(2) 16 Mich. 79.
(3) Hodges v. The Railroad, 49 N. Y. 223 ; Wade on Notice, § 577.
(4) Hodges v. The Railroad, 49 N. Y. 223 ; The Eddy, 5 Wall 481.
(5) Ry. Act, sec. 234.
(6) Brown v. C. P. R., 3 Man. 496. As to passengers' luggage, see infra,
PP- 352 et se1-
(7) Supra, pp. 295-296.
CARRIERS.
323
to the person carried, only when they are the result of negligence,
or want of due care or skill, or reasonable foresight and prudence
on the part of the carrier. This is the undoubted law in England,
and in all countries where the English law prevails, (i)
In France, though it has been contended with much plausi-
bility that the carrier's liability should a fortiori be as great with
regard to passengers as with regard to goods, (2) the more recent
decisions of the Courts there are to the effect that the liability is
governed not by the Article of the Code Napoleon with regard
to the carriage of goods, but by Articles 1382 and 1383, corres-
ponding to Articles 1053 and 1054 of the Quebec Code. (3) And
this has now been authoritatively decided in this country in the
Supreme Court, in the case of Chalifoux vs. C. P. Ry. Co. (4)
In that case the plaintiff was a passenger on a train which was
thrown off the track by the breaking of a rail, and suffered serious
injuries. The mere fact of the derailment, according to the
best authorities, constituted prima facie evidence of negligence,
"on the part of the railway company, and the onus was upon them
to rebut this presumption. (5) It was proved that the rails on
(1) Christie v . Griggs, 2 Camp. 79 ; Pym v. Great Northern Ry. Co.,
2 F. & F. 619 ; Stokes v. Eastern Counties Ry. Co., 2 F. & F. 691 ; Crofts
v. Waterhouse, II Moore 133, 3 King. 319; Wright TJ. Midland Ry. Co.,
L. R., 8 Ex. 137 ; Readhead v. Midland Ry. Co., L. R., 2 Q. B. 412, 4 Q.
B. 379 ; McPadden v. N. Y. Central Ry. Co., 44 N. Y. 478 ; Ingalls v.
Bills, 9 Met. 15 ; Pi'tsburg, etc., Ry. Co. v. Thompson, 56 111. 142 ; Heazle v.
Indianapolis, etc., Ry. Co., 76 111. 501 ; Meiers. Penn. Ry. Co., 64 Pen n.
225 ; Stokes v. Saltonstall, 13 Pet. 181 ; Bennet v. Button, 10 N. H. 481 ;
Indianapolis Ry. Co. v. Horst, 93 U . S. 291 ; Hutchinson on Carriers, § 500 ;
Hutchinson v. C. P. Ry. Co., 17 O. R. 347.
(2) 31 Demolombe, Nos. 484, 638 ; Troplong, Louage, Nos. 904-906 ; 2
Sourdat, Nos. 976-77 ; 4 Duvergier, Louage douvrage, No. 317 ; Dalloz,
Rep. Vo. Commissionnaire, Nos. 299, 301, 338, 409, 414 ; 2 Cotelle, Le"gis-
lation des Ch. de Fer, No. 203 ; Dalloz, 55-2-86 ; S. V. 60-2-42 ; Cour Imp.
Paris, 27 Nov. 1886 ; but see 2 Sourdat, Nos. 1058 et seg. ; 2 Be"darride,
Ch. de Fer, Nos. 437, 440 ; S. V. 1867-2-320.
(3) Dalloz, 1882-2-163, 1885-1-433. It must be remarked with regard to
this last case that it is stated in a note that this decision of the highest
Court in France has been victoriously combated by a Itarned text -writer.
(4) 22 S. C. R. 721.
(5) Christie v. Griggs, 2 Camp. 79 ; Dawsonz*. Man., Sheffield, etc., Ry.
Co., 5 L. T. N. S. 682 ; Buike v. Man., Sheffield, etc., Ry. Co., 22 L. T. N.
S. 442 ; Stokes v. Saltonstall, 13 Pet. 181 ; The New World v. King, 16
How. 469 ; G. W. Ry. Co. v. Braid, I Moore N. S. 101 ; Wood v. S. E.
Ry. Co., 13 R. L. 567.
324 THE RAILWAY LAW OF CANADA.
this particular section of the road had been manufactured upon
specifications prepared by the greatest engineering authority
with regard to the quality of rails to be used in a cold climate
subject to sudden changes of temperature ; that the manufacturers
were of the highest reputation in England; that the rails had
been there put to the severest tests possible, and were of superior
quality in every respect ; that they had been again inspected
and tested on their arrival in this country, and had been laid
with great care ; that the roadbed was in perfect order, and that
the piece of track itself had been inspected twice on the same day
previous to the accident, and for the last time within twenty
minutes of the breaking of the rail. It was also shown that the
temperature had been very low for some days previous to the
accident, and that on the day of the accident it had suddenly
risen considerably. It was also proved that such a change of
temperature, resulting in a contraction and sudden expansion of
the metal, was the most frequent cause of the breaking of rails.
Judge Mathieu, in the Superior Court, in a very learned judgment,
held that, notwithstanding that they had clearly absolved them-
selves from any imputation of negligence, the railway company
were liable for the injuries to the plaintiff under the provisions of
Art. 1675 of the Code with regard to carriers, and that they could
not be excused from such liability unless they proved that the
accident was caused by cas fortuit or force majeure, and that
the breaking of the rail by a change of temperature did not
constitute such a case, but was a thing which could have been
foreseen, (i) This judgment was confirmed by the Court of
Appeals, Judge Cross dissenting, (2) but was reversed by the
Supreme Court, (3) where it was held by the majority of the Court
(Fournier, J., dissenting) that the railway company could only
be held liable as carriers of passengers in case of negligence, and
that whether the onus was upon the plaintiff or defendants, the
company in this case had clearly rebutted any presumption of
negligence which might have arisen from the fact of the derail-
ment having occurred. The dissenting opinion in this case was
based on the ground that the evidence showed there was a latent
(1) M. L. R., 2 S. C. 171, 14 R. L. 149.
(2) 31 L. C. J. 261, M. L. R., 3 Q. B. 324.
(3) Supra, p. 323.
CARRIERS. 325
defect in the rail, and that the liability of the company was the
same as that imposed upon them as carriers of goods. In the
Court of Appeal the opinion of the learned Chief Justice (Sir A.
A. Dorioii) seems to have been founded upon the fact that, in
his view of the evidence, the rail must have been broken some
days before the accident, and that the company were therefore
guilty of negligence in not having replaced the rail.
In a still more recent Quebec case (i) the question was again
fully argued before the Supreme Court, and decided in the same
sense as the Chalifoux case, with the same dissent, reversing
the judgments of the two courts below. (2) In that case, how-
ever, the Chief Justice of the Court of Appeals (Sir Alexander
Lacoste) seems to have based his opinion on thej ground of
negligence on the part of the company, as will be seen from his
remarks, as follows : " Le voiturier est tenu d'user de la plus
" grande vigilance pour proteger ses passagers contre les perils
" du voyage *** Si, par sa negligence, il commet un voyageur
" a quelqu'inconvenient, il doit s'attendre que celui-ci prendra
" les moyens que sa discretion lui suggerera pour se tirer d'em-
" barras, *** et le voiturier sera responsable de Faccident qui
" surviendra, a moins qu'il ne prouve que le voyageur a agi avec
" une imprudence inexcusable." (3)
The views thus expressed are certainly irreconcilable with the
doctrine as to carriers of goods, which if applied to passengers
would make the carrier liable without any question as to his ne-
gligence.
15. It was well said by the learned Chief Justice, that the carrier Degree of
is held to the greatest vigilance in protecting his passengers. care-
While he is not held to warrant or insure the safety of the passen-
ger at all events, he is bound to convey him safely, " as far as
human care and foresight will go." (4) While this does not
mean that the carrier is bound to use all the means that human
skill or ingenuity can devise, (5) it implies the exercise of all
(1) Quebec Central Ry. Co. v. Lortie, 22 S. C. R. 336.
(2) Que., Q. B., not reported in Quebec reports.
(3) 22 S. C. R. at p. 345.
(4) Christie v. Griggs, 2 Camp. 79 ; per Lord Mansfield.
(5) Indianapolis Ry. Co. v. Horst, 93 U. S. 291 ; Ford v. Lon. & South
Western Ry. Co., 2 F. & F. 730.
326 THE RAILWAY LAW OF CANADA.
reasonable skill and care, (i) and he is bound to use the most
exact diligence, and is icsponsible for negligence however slight.
(2) Yet, though the carrier is bound to use all well known
appliances and machinery, generally used, he is not bound to
put in practice experimental or untried machinery or methods
which may have been invented, especially where the cost or
difficulty of working them would be disproportionate to the
greater degree of safety to be obtained. (3)
Latent defects 16. In England many decisions have gone upon the question as
m db d °r to wnetner the carrier is responsible for damages arising from
latent defects, the general doctrine appearing to be that as the
liability of the carrier of passengers depends upon his negligence
or otherwise, he would not be held liable on account of an acci-
dent arising from a latent defect in some part of the roadbed,
carriage or machinery which could not be perceived by the most
careful inspection, provided it were shown that such an inspec-
tion had been duly made. (4)
In Redhead v. Midland Railway Company, Lord Blackburn
went so far as to say that the carrier is bound to supply not a
perfect vehicle, but one reasonably sufficient for the journey, and
that it is not enough that every reasonable effort was made to
secure this result, if in fact the carriage was not sufficient. (5)
In the Exchequer Chamber, however, it was unanimously held
the contract of carriage implies no warranty as to the sufficiency
of the vehicle, but is only to take " due care" of the passenger.
(6)
Exceptions to this doctrine, however, have been taken, one
where the carrier is himself the manufacturer of the carriage or
(1) Wright v. Midland Ry. Co., L. R., 8 Ex. 137.
(2) Daniel v. Metropolitan Ry. Co., L. R., 3 C. P. 216, 591 ; and see Foy
v. Lon., Brighton & South Coast Ry. Co., 18 C. B. N. S. 225 • and Gee v.
Metropolitan Ry. Co., L R., 8 Q. B. 161
(3) Hutchinson on Carriers, § 529-30, and see Steinweg v. Erie Ry. Co.,
43 N. Y. 123 ; New Orleans &c. Ry. Co. v. Faler, 58 Miss. 911 ; Le Barron
r. E. B.F. Co. ii Allan 312 • Natchez &c. Ry. Co. v. McNeil, 61 Miss.
434-
(4) Redhead v. Midland Ry. Co., L. R., 2 Q. B. 412, 4 Q. B 379 ;
Wright v. Midland Ry. Co., L. R., 8 Ex 140 ; and see Francis r. Cockerell,
L. R., 5 Q. B. .184; Exch. Cham. 501 ; and G. W. Ry. Co. v. Braid, i
Moore N. S. loi ; Ingalls v. Bills, 9 Met. I ; Hutchinson on i arriers, § 506
507-
(5) L. R., 2 Q. B-, at p. 412. (6) L. R., 4 Q. B. 379.
CARRIERS. 327
the machinery. In such a case it has been generally held that
the carrier is responsible for such a latent defect or flaw as being
the result of his own negligence in construction; but, on the
other hand, where the defect occurs in a portion of the carriage
or machinery which has been made by the best manufacturers
with due care or skill, and according to the most approved prin-
ciples, and subject to proper tests and inspection, it has been
held that the carrier is not liable for consequent damage or in-
jury, but is liable if the proper tests and inspection have not
been made by the manufacturer, where such tests would have
revealed the defect, even though they might be such tests as
could not be applied by the carrier himself whose duty is to see
that the work is properly done by the manufacturer, (i) As it
was put by Hannen J., in Francis v. Cockerell, (2) "unless the
"presumed intention of the parties be that the passenger
" should, in the event of his being injured by the breach of the
" manufacturer's contract, of which he has no knowledge, be
"without remedy, the only way in which effect can be given to a
" different intention is, by supposing that the carrier is to beres-
" ponsible to the passenger, and to look for his indemnity to the
" person whom he selected, and whose breach of contract caused
" the mischief. But not only do we think that, when the reasons
"of justice and convenience on the one side and on the other
<'are weighed, the balance inclines in favor of the plaintiff
" (passenger), but we are also of opinion that the weight of
"authority is on the plaintiff's side."
17. The leading case as to the degree of care and skill required Insufficiency
from railway companies in the construction and maintenance of of roadway-
the roadbed, embankments, etc., is that of GreatWestern Railway
Company v. Braid (3), decided by the Privy Council on an
appeal from Ontario (4) in 1863. Their Lordships there held
that :—
(1) Redhead v. Midland, L. R., 2 Q. B. 412, 4 Q.B. 379 ; Francis v. Coc-
kerell, L. R., 5 Q. B. 184, Exch. Cham. 501 ; Grote v. Chester & Holy-
head Ry. Co., 2 Exch. 251 ; Crofts v. Waterhouse, 3 Bing. per Best C. J. at
p. 321; Brazier v. Polytechnic Institution, I F. & F. per WightmanJ.
at p. 508; Hegemanz/. The Ry. Co., 13 N. Y. 9 ; Hut chim on on Carriers,
§§ 509-512 ; but see Nashville & Decatur Ry. Co. v, Jones, 9 Heisk. 27.
(2) L. R., 5 Q. B. at p. 194.
(3) i Moore N. S. 101.
(4) 10 U. C. C. P. 137.
328 THE RAILWAY LAW OF CANADA.
"Where an injury is alleged to have arisen from the improper
construction or maintenance of a railway, the fact of one of its
embankments giving way will amount to prima facie evidence
of such insufficiency ; and this evidence may become conclusive,
in the absence of any proof on the part of the company to rebut
it." (i)
In an action against a'railway company for damages sustained
by reason of want of skill in the construction of the railway, the
fact that the accident was caused by a storm of such an extra-
ordinary nature, that no experience could have anticipated its
occurrence, is a circumstance that, as affecting the question of
negligence in the construction and maintenance of the railway,
ought to be left by the judge distinctly and pointedly to the
jury. (2) In this case, their Lordships remarked that the
difficulty of extracting any principle from decided cases, which
may be applied with certainty to questions of this description*
is strongly exemplified by the two judgments of the Court of
Exchequer in Withers v. The North Kent Railway Co., (3)
and Ruck v. Williams^ (4) rendered within three weeks of each
other. (5)
Their Lordships, however, while disclaiming any attempt to
lay down any general rule upon the subject, said that the railway
company ought to have constructed their works in such a manner
as to have been capable of resisting all the violence of weather
which, in the climate of Canada, might be expected, though
perhaps rarely, to occur. (6)
The rule laid down by their Lordships, however, seems broad
enough to cover most cases of this nature arising in this country.
Crown as 18. The Crown is not,liable as a common carrier for the safety
earner. an(j sure^y of passengers using its railways ; and a petition of
right does not lie against the Crown for injuries resulting from
the non-feasance or mis-feasance, wrongs, negligence, or omis-
(1) Per Lord Chelrnsford at p. 116. See also two Quebec cases to same
effect, Wood v. South East Ry. Co. ; Murray v. South East Ry. Co., 13 R. L.
567.
(2) i Moore N. S., 101.
(3) 27 LJ. N. S., Exch. 417.
(4) 27 L. J. N. S., Exch. 357.
(5) i Moore, N. S., per Ld. Chelrnsford, at p 116.
(6) Per Ld. Chelmsford, at p. 120.
CARRIERS. 329
sions of duty of the subordinate officers or agents employed in
the public service on its railways, (i)
19. The degree of care due by the carrier to strangers is gov- Degree of care
erned by the principle that everyone is obliged, upon considera-^"6 ' °tsew^
tions of humanity and justice, to conform his conduct to the lar passengers,
rights of others, and, in the prosecution of his lawful business, to
use every reasonable precaution to avoid injuring them. (2) In a
Quebec case, (3) where a person, by giving a tip or bribe to the
conductor of a train not intended for the conveyance of ordinary
passengers, as he had reason to know, induced the conductor of
such train to permit him to travelt on the train, contrary to the
regulations of the company, it was held that he travelled at his
own risk, and if while so travelling, he is injured by a collision,
he is not entitled to be indemnified by the company for any
damage to person or property sustained by him. Where the
defendants are negligent in the manner of running a train, they
are liable for the death of an express messenger, who, as such>
was being carried on their train without a ticket or payment of
fare, but under a contract between the defendants and the express
company. (4) The deceased was the servant of the express
company, and was not in any sense engaged in any common
employment with the servants of the railway company.
Where the plaintiff was a servant in the employment of a
contractor with defendants for keeping their road in repair, and,
in the course of such repairs, plaintiff was transported on the
defendant's cars under the management of defendant's servants,
and used to transport materials and convey workmen employed
by the contractor ; the defendants were held liable to plaintiff
for injuries negligently caused to him by the collision of the train
with another. (5)
(1) The Queen v. McLeod, 8 S. C. R. i.
(2) Hutchinson Carriers, Ed. 1882, p. 447.
(3) Canadian Pacific Railway Co. v. Johnson, M. L. R., 6 Q. B. 213 ; and
see Hutchinson v. C. P. R., 17 O. R. 347. Confirmed in appeal, 16 Ont.
A. R. 429.
(4) Jennings v. The Grand Trunk Railway, 15 Ont. A. R. 477. This case
was confirmed on appeal to the Privy Council on the question of damages, 13
App. Cas. 800. For the case of a mail carrier, see Nolton v. The Railroad
Corporation, 15 N. Y. 444.
(5) Torpy v. The Grand Trunk Railway Co., 20 U. C. Q. B. 446 ; but
sac Sheerman v. Toronto, Grey & Bruce Ry. Co., 34 U. C. Q. B. 451.
330 THE RAILWAY LAW OF CANADA.
Two other cases, similar to the foregoing, were afterwards
decided in a contrary sense, but the facts differed sufficiently to
warrant a departure, without in any way disturbing the soundness
of the first decision. In one of these cases (i) the evidence
shewed that the defendants were only bound by their contract
with the contractors to provide an engine and platform cars for
carrying ballasting and materials for track-laying, to be under the
charge of their own conductor, engineer and fireman, the con-
tractors to find the brakeman ; and that it was not necessary for
defendants to carry the workmen. There was no evidence that
the defendants consented to the use of the cars by the men,
further than that the conductor and engine-drivers permitted it.
In the other case (2) the facts were exactly similar, and it was
held that the defendants were not liable, for their contract was
to carry materials only, not passengers, and the conductor, in
permitting the plaintiff to get upon the train, was not acting as
defendant's agent. The distinction to be noted between these
two cases and that of Torpy v. The Grand Trunk Railway
Company, is, that in that case the contract was for the repairing
of the line, and not for construction, and the train was entirely
under the control of the defendants. It might, therefore, be
readily supposed that, owing to the nature of the contract, the
workmen would require to be transported from place to place by
the company's trains.
Riding in un- 2O. With reference to regulations prohibiting persons from
place"2 riding on the platforms of cars or in baggage or freight cars,
reference should be had to sections 21410 222 of the Act. The first
section empowers the company to make by-laws, rules or regula-
tions for the purpose therein mentioned, and amongst others.those
for the purposes of regulating the travelling upon or the using or
working of the railway ; and by the following sec. 215, the com-
pany is given power to prescribe a penalty not exceeding $40 for
the violation of any by-law or regulation. Such by-laws and regu-
lations are subject, by sec. 217, to the approval of the Governor
in Council, without which they have no force or effect. Sec,
218 provides for the publication of such by-laws or regulations,
(1) Sheerman v. Toronto, Grey & Bruce, 34 U. C. Q. B. 451.
(2) Graham v. Toronto, Grey & Bruce, 23 U. C. C. P. 541.
CARRIERS. 331
and requires that printed copies should be openly affixed and
kept affixed to a conspicuous part of every station belonging to
the company, and so as to give public notice thereof; and in the
Province of Quebec, it is required that they should be printed
both in French and English ; and when approved as above men-
tioned and published, they are binding upon all persons ; and
by sec. 221, the company is given power in cases where the
violation or non-observance of any by-law or regulation would be
attended with danger or annoyance to the company, or hindrance
to the company in the lawful use of the railway, to summarily
interfere without prejudice to the penalty. When such by-laws
or regulations affect the officers or servants of the company, it is
required by sec. 219 that a printed copy shall be given to every
officer, servant and employee of the company affected. It would
appear from consideration of sec. 249, taken in connection
with those sections referring to by-la\ys and regulations, that a
passenger riding upon the platform of a passenger car or in a
baggage or freight car, in violation of any regulation of the com-
pany, approved of by the Governor General in Council, and
published in the manner required by the Act, (i) would not be
entitled to receive compensation if injured, provided that suffi-
cient accommodation was provided for him in the car. Aside,
however, from any regulations upon the subject issued by the
railway company, and properly published, it is always competent
to show, in defence to an action for bodily injuries, that the party
injured was knowingly travelling in an unauthorized place; and
if the passenger wilfully and knowingly puts himself in a place of
danger, and an accident results to him which would not have
occurred if he had been riding in the ordinary passenger car,
there is no doubt he could not recover for the consequent injury.
(2) To take an extreme case, we might suppose that the passen-
ger seated himself upon the cow-catcher of the engine ; very
clearly he would take upon himself the result of any injury result-
ing to him from riding in such an exposed position. Where the
(1) Under the Provincial Railway Acts, printed regulations must be posted
up at the time in a conspicuous place inside the passenger cars forming part of
the train. (See Appendix CXI.)
(2) Railroad Co. v. Jones, 95 U. S. 439 ; Eaton v. The Railroad, 57
N. Y. 382 ; C. P. Ry. Co. c. Johnson, M. L. R.,6Q. B. 213 ; Hutchinson v.
C. P. Ry. Co., 17 O. R. 347 ; 16 A. R. 429 ; Hutchinson on Carriers, § 554.
332 THE RAILWAY LAW OF CANADA.
conductor of a freight train, contrary to the rules of the company,
travelled upon the locomotive while in charge of the train, and
a collision occurring, he was killed, the company were held not
liable, (i)
Where the plaintiff, who was in defendant's train on a passenger
ticket, went into the baggage car, where passengers frequently
went to smoke with the permission of the conductor, and was
injured while in the baggage car by a collision resulting from
defendant's gross negligence, it was held that he could recover.
(2) It was also held that sec. 107 Consolidated Statutes
Canada (reproduced in the present Railway Act) (3) did not
apply. Although the car was in sense a baggage car, yet the
compartment in which plaintiff was at the time of the accident
was used by the express company, the other two compartments
being used for the post office and the baggage. •
To recover in an action, for damages resulting from injuries
received while being carried, the injured party must be lawfully
upon the train ; and if he obtains admission to the train, and is
carried, under false representations or through fraud on his part,
or by the use of a ticket or pass unlawfully obtained, he cannot
recover. (4)
Duty of Rail- 21. It has been observed (5) that it is not the duty of carriers
way servants to restrain passengers from injuring themselves j at the same time,
train. ^ ( ^ *s undoubtedly the duty of conductors and others in charge of
the train to see to the proper and safe placing of passengers, and
as far as possible to prevent them from occupying dangerous
positions on the train. This principle was very strongly brought
out in a case which came before the Quebec Court of Appeals,
one of a series of actions brought against the C. P. Ry. Co.,
by a number of workmen who were being carried over the line to
a point where they were to obtain work. They were not carried
upon a regular passenger train, but upon a train made up of
various cars, some empty, some flat cars carrying rails, and some
(1) Stoker v. The Welland Railway, 13 U. C. C. P. 386.
(2) Watson v. Northern Ry. Co., 24 U. C. Q. B. 98.
(3) Sec. 249.
(4) C. P. Ry. Co. v. Johnson, M. L. R., 6 Q. B. 213 ; Great Northern
Ry.Co. v. Harrison, 10 Exch. 376; Hutchinson on Carriers, § 555.
(5) Browne on Carriers, 385.
CARRIERS. 333
cars loaded with lumber. The Court held that the plaintiffs
occupied the position of passengers with regard to the railway
company, as carriers of them. The men were directed to take
their seats upon the flat cars, but instead of doing so, climbed
upon the top of the lumber on several cars. The lumber was
proved to have been staked at the side sufficiently to hold it, but
at a certain point on the road, where an unusual jerk or jolt
occurred, the lumber was thrown off through the breaking of
the stakes, which would not have occurred had it not been for
the superadded weight of the men and their baggage. The
company were held liable, upon the ground that the conductor
and the servants in charge of the train should have exercised
more supervision over the passengers, and not merely contented
themselves with originally directing them to take their seats
upon the empty cars, but were bound to have ordered them out
of the dangerous position which they took up. (i) This case may
be of doubtful authority, as one of the learned Judges expressed
grave doubts ; but it serves as an illustration to show how jeal-
ously the courts will guard the rights of passengers in such cases.
There is a duty imposed also upon the railway company to
protect the passenger from the unlawful acts of other passengers,
when practicable, and within the power of the company's ser-
vants. (2)
22. Platforms are generally considered as convenient accom- Alighting
modation for passengers to alight at stations. As no law, however, from trains at
' stations,
compels railway companies to have them erected at every station,
they are not held absolutely necessary ; but in their absence, it
seems that something else should be provided, or such care and
assistance procured as to insure the safe alighting of passengers
from the trains. (3)
So in another case, where the train arrived at the station on a
dark night, and the station grounds were not lighted, and there
was no platform on which to alight, but the ground was smooth
and level, a brakeman came with a lantern, carried out the plain-
(1) C. P. Ry. Co. v. Goyette, M. L. R., 2 Q. B. 370.
(2) Hutchinson on Carriers, §§ 548-552.
(3) Duhuc, J., in McGinney v. C. P. Ry. Co., 7 Man. 153. For a point
involving the introduction of evidence in such a case see Harvey v. C. P. R.,
3 Man. 266.
334 THE RAILWAY LAW OK CANADA.
tiff's valise and assisted her to alight. The lowest step of the car-
riage was 26 inches from the ground. Before assisting her to alight,
the brakeman placed the lantern on the ground where it cast a
light 20 or 30 feet around. In alighting the plaintiff injured her
knee, and was compelled in consequence to abandon her employ-
ment as cook. It appeared at the trial that the plaintiffs knee
had been weak for some time previously, and that she had been
affected with synovitis in a sub-acute form. She did not tell the
brakeman of this weakness of the knee. In an action brought
for this injury it was held that the defendants were not guilty of
negligence, and that if there was any negligence at all it was
attributable to the plaintiff in not telling the brakeman of her
feeble and delicate knee, (i)
But where, after calling out the name of a. station, a railway
train was slowed up on approaching and passing it, but was not
brought to a full stop, and the plaintiff who had purchased a
ticket for that station received injuries on alighting there, it was
held, that there was evidence of an invitation to alight, and that
it was for the jury to say whether she had acted in a reasonably
prudent and careful manner in availing herself of it. (2)
In England the doctrine is that if the servants of the company
ask passengers to alight on arrival of a train at a station, the
company is liable for injuries sustained in alighting, owing to
defective accommodation of the place ; but what amounts to an
invitation to alight depends upon the surrounding facts and
circumstances. And it has been held that mere stoppage of the
train and calling out the name of the station is not such an
invitation ; (3) but, coupled with a lengthened stoppage, would
amount to an invitation, (4) as may a long stoppage alone. (5)
In Bridges v. North London Ry. Co.. (6) in the House of
(1) McGinney v. The Canadian Pac. Ry, Co., 7 Man. 151; and see
Crafter v. The Metropolitan Co., L. R., I C. P. 300; MacDonald v.
Mayor, etc., of St. John, 25 N. B. 318 ; Siner & wife v. The Great West-
ern Ry. Co , L. R., 3 Ex. 150 ; Harrold v- The Great Western Ry. Co., 14
L. T. N. S. 440 ; Cornman v. The Eastern Counties Ry. Co., 4 H. &
N. 781.
(2) Edgar & wife v. Trie Noithern Ry. Co., n Out. App. 452,
(3) Lewis v. Lon , Chat. & Dover Ky. Co., L. R., 9 Q. B. 66.
(4) Biidgesw. N. Lon. Ry. Co., L. K., 7 H L. 213 ; Robson v. N. E.
Ry. Co., 2 L. K., 2 Q. B. D. 85.
(5) Rose v. N. E. Ry. Co., L. R. 2 Ex. D. 248.
(6) Bridges v. Directors, etc., of North London Ry. Co., L. R., 7 H. L.
CARRIERS. 335
Lords, it was held that the case was one for the consideration of
the jury. It was laid down in this case as a test for what is or
is not for the jury, that there is in every case of this kind a
preliminary question which is one of law, namely, whether there
is any evidence on which the jury could properly find the question
for the party on whom the onus of proof lies. If there is not,
the Judge ought to withdraw the question from the jury, and
direct a non suit if the onus is on the plaintiff, or direct a
verdict for the plaintiff if the onus is on the defendant, (i)
and it follows from this that although the question of negli-
gence is usually one of pure fact, and therefore for the jury, it is
the duty of the judge to keep in view a distinct legal definition
of negligence as applicable to the particular case ; and if the facts
proved by the plaintiff do not, whatever view can be reasonably
taken from them, or inference drawn from them by the jurors,
present an hypothesis which comes within that legal definition,
then to withdraw them from their consideration. (2) In a
Quebec case, (3) it was decided that where a passenger buys a
ticket for a certain station, and the company collect it, they are
bound to put him off at that station, or be held liable in damages ;
but where the company have failed to so stop, and the passenger
jumps from the train while it is in motion, the company will not
beheld liable for injuries received by the passenger, they being
solely the result of his own imprudence.
A railway company is bound to provide for passengers safe
means of ingress to and egress from its stations. And where a
passenger, arriving at a station, at night, walked along a platform
not intended for, but frequently used as, a means of exit, but
which was not in any way guarded, and after leaving the platform
fell into an excavation in the company's grounds, and was injured,
the company were held liable. (4)
The company is also bound to keep its station and premises in
proper repair, so as to prevent injuries to passengers ; and a
(1) Per Pollock B. in Bridges v. Directors, etc., of North London Ry. Co.,
L. R., 7 H. L. at pp. 221-222, quoting from Ryder v. Wombwell, L. R., 4
Ex. 32, 38.
(2) Ibid.
(3) The Central Vermont Ry. Co. v. Lareau, M. L. R., 2 Q. B. 258,
reversing M. L. R., I S. C. 433.
(4) Old wright v. G. T. Ry. Co., 22 Ont. A. R. 286.
336 THE RAILWAY LAW OP CANADA.
passenger arriving at the station continues to be a passenger for
a reasonable time until he has left their premises. So, too, a
person bonafide at the station, for the purpose of taking passage
upon a train, is a passenger, although he has not in fact purchased
his ticket, (i) The company is bound, as to its passengers or
persons upon its premises " by invitation," to see to it that its
premises are in such a condition, in all respects, that a person, by
the exercise of ordinary care, can come to and leave them without
danger ; and this extends to proper and suitable approaches,
platforms, steps or other devices, as well as suitable lights. (2)
As illustrating the obligation of the railway company in this
respect, and the care to be exercised by the passenger, the
following case may be cited. The approach to a station of the
Grand Trunk Railway from the highway was by a planked walk
crossing several tracks, and a train stopping at the station
sometimes overlapped this walk, making it necessary to pass
around the rear car to reach the platform. J., intending to
take a train at this station before daylight, went along the
walk as his train was coming in, and seeing, apparently, that it
would overlap, started to go around the rear, when he was struck
by a shunting engine, and killed. It was the duty of this
shunting engine to assist in moving the train on a ferry, and it
came down the adjoining track for that purpose before the train
had stopped. Its headlight was burning brightly and the bell
was kept ringing. There was room between the two tracks for a
person to stand in safety. It was held that the company neglected
no duty which it owed to the deceased as one of the public.
(3) And per Strong & Patterson, J.J., that while the public
were invited to use the planked walk to reach the station, and
also to use the company's premises, when necessary,to pass around
a train covering the walk, there was noiimplied warranty that the
traffic of the road should not proceed in the ordinary way, and
the company was under no obligation to provide special safe-
guards for persons attempting to pass around a train in motion.
(1) Wood, Railway, 1163; Grand Trunk Railway v. Boulanger, I7th
March, 1886 (Que.), Cassil's Dig., p. 734.
(2) Wood, Railways, 1164.
(3) Jones v. The Grand Trunk Ry. Co., 18 S. C. R. 696, affirming Ct. of
Appeals, Ontario, 16 Out. App. 37 ; see also Curwin v. The Windsor &
Annapolis Ry. Co., 3 Geld & Oxley 493.
CARRIERS. 337
23. While generally an attempt to get on board a train in mo- Boarding the
tion will be treated as evidence of negligence on the part of the
passenger, yet instances may exist where it is not so, and the pas-
senger is justified in making the attempt; but in such cases
liability arises, if at all, because of the fact that the danger was
not obvious, or because the agents of the company directed the
passengers to make the attempt. But even where the agents of
the company direct the passenger to do so, the company is not
liable, if it was gross negligence on the part of the passenger to
make the attempt in^view of all the circumstances; and whether
it was so or not depends upon the fact whether, under the cir-
cumstances, the act was obviously dangerous, and that is a
question for the jury, (i) A passenger, in trying to catch a
train, ran up and seized hold of the iron railings of one of the
cars, and holding thereon, ran along the platform at the speed of
the train with his face towards the car, and, after the train had
moved a certain distance, in attempting to jump thereon, he
struck against a baggage truck which was close to the platform,
and which had been used in taking baggage to the baggage car,
and was left for a couple of minutes to bring back the baggage
therefrom. By the concussion he was thrown under the wheels
of the train, and received an injury. It was held that, under the
circumstances of the case, the leaving of the truck on the plat-
form did not constitute negligence on the part of the defendants ;
but even if it did, the plaintiff, in attempting to get on the train,
as he did, was guilty of such contributory negligence as would
prevent his recovering. (2)
An important case on this point was that of Hall v. McFadden,
decided in the Supreme Court of Canada. (3) Plaintiff, having
a first-class ticket from Sussex to Penobsquis by the Intercolonial
Railway, intended going to Penobsquis (her home) by the mixed
freight and passenger train, which was due to leave Sussex at
1.47 p.m. The train on that day was an unusually long one, and
when the passenger cars were brought to the platform, the engine
was across the public highway. When the train came in it was
brought up so that the forward part of the first-class car was
(1) Wood Rlys., p. 1154 ; Curry v. C. P. R., 17 O. R. 65.
(2) Haldan v. The Great Western Ry. Co., 30 U. C. C. P. 89.
(3) 1st May, 1883. Cassel's Dig., p. 724.
22
338 THE RAILWAY LAW OF CANADA.
opposite the platform. It was then about ten minutes after the
advertised time of departure. Plaintiff was standing on the plat-
form when the train came in, but did not then get on board.
The conductor of the train (the defendant) got off the train and
went to a hotel for dinner. While he was absent the train was,
without his knowledge, backed down, so that only the second-
class car remained opposite the platform. The jury found that
the first-class car did not remain at the platform long enough to
enable plaintiff to get on board. The defendant, after finishing
his dinner, came over hastily (being behind time and, therefore,
in somewhat of a hurry), called "all aboard," glanced down the
platform, saw no person attempting to get on board, crossed the
train between two box cars to signal the driver to start (it being
necessary to cross the train in order to be seen by the driver,
owing to a curve in the track), and almost immediately the train
started. The 1 24th regulation for government of the Intercolonial
Railway prescribes that conductors must not start the train while
passengers are getting on board, and that they should stand at
the front end of the first passenger car when giving the signal to
the driver to start, which was not done in this instance. Plaintiff
and a lady friend, F., who was going by the same train, were
standing on the platform, and when they heard the call "all
aboard," they went towards the car as quickly as they could.
F. got on all right, but plaintiff, who had a paper box in her
hand, caught the hand-rail of the car, when she slipped, owing to
the motion of the train, and was seriously injured. The jury
found that the call " all aboard " was a notice to passengers to
get on board.
The Supreme Court of New Brunswick (i) held, that, although
the plaintiff's contract was with the Crown, the defendant owed
to her, as a passenger, a duty to exercise reasonable care, and
that there was ample evidence of negligence for the jury. On
appeal to the Supreme Court of Canada, it was held (2) that the
judgment of the Court below should be affirmed. It was held
by Ritchie, C. J., that there was no obligation on the part of the
passengers to go on board the train until it was ready to start, or
(1) 19 N. B. 340, and 21 N. B. 586.
(2) Taschereau v. Gwynne, J. J., dissenting.
CARRIERS. 339
until invited to do so by the intimation from the conductor
" all aboard." And by Henry, J., that there was no satisfactory
proof of contributory negligence on the part of the plaintiff. The
package she carried was a light one, and such as is often carried
by passengers with the knowledge and sanction of railway con-
ductors and managers, and a tacit license is therefore given to
passengers to carry such with them in the cars
After the notification "all aboard" is given by a conductor, it is
his duty to wait a reasonable time for passengers to get their
places.
24. The railway company is bound to use every reasonable Delay in
effort to insure punctuality in the starting and arrival of its carriage of
trains, and any unreasonable delay will render the company liable
in damages to the passenger, to be measured as a rule by the
inconvenience he thereby suffers, and any additional expenses
he incurs, within reason, to reach his destination, (i)
The ruling case in England is that of Le Blanche v. The London
& North Western Railway Company. (2) There the plaintiff
contracted in Liverpool for a journey to Scarborough via Leeds,
having taken a ticket expressed to be subject to conditions in
the time tables, which were (inter alia] : " Every attention will
be paid to ensure punctuality as far as is practicable ; but the
company do not undertake that the trains shall start or arrive at
the time specified in the bills, nor will they be accountable for
any loss, inconvenience, or injury which may arise from delays
or detention." According to the time bills the train which left
Liverpool at 2 o'clock was to arrive at Leeds at 5 o'clock, and
a train was to leave Leeds at 5.20, arriving at Scarborough
7.30. The trains between Leeds and Scarborough were not
under control of the contracting company. The train, being
delayed at St. Helen's Junction and Manchester, arrived at
Leeds at 5.27, after the 5.20 train from Scarborough had left.
There was another train at 8 p.m. which would arrive at Scar-
borough at 10 p, m.
(1) Hobbs v. Lon. & N. W. Ry. Co., L. R., 10 Q. B. m, 44 L. J. Q.
B. 49 ; Le Blanche v. Lon. & N. W. Ry. Co., L. R., I C. P. D. 286, 45 L.
J. C. P. 521 ; Hamlin ». Great Northern Ry. Co., I H. & N. 408, 26 L. J.
Ex. 20.
(2) L, R., i C. P. D. 286, 45 L. J. C. P. 521 (C. A. 1876).
340 THE RAILWAY LAW OF CANADA.
The plaintiff ordered a special train to Scarborough at a cost
of £n.ios., and airived there at about 8.45. He brought an
action in the County Court to recover the £n.ios. The judge
of the County Court gave judgment for the amount claimed.
This judgment was affirmed by a Divisional Court of the Com-
mon Pleas division, who held, first : that the facts and documents
which formed the contract were the taking and granting of the
ticket, the {time table and the conditions; secondly, that the
defendants thereby contracted to make every reasonable effort to
secure punctuality ; thirdly, that although a delay of a few minutes
would not be evidence of a want of reasonable effort, yet a long
unusual delay, such as had occurred at St. Helen's Junction and
at Manchester, was evidence calling upon the company to show
that it arose in spite of such reasonable effort, and that there was
evidence that such delay was the cause of the plaintiffs missing
the corresponding train at Leeds ; fourthly, that the cost of the
special train was recoverable as damages.
On appeal, the judgment of the court below was, on the first
point, affirmed; on the second, affirmed (dissentiente, Cleasby,
B.) ; on the third, affirmed (dissentiente, Baggallay, J. A.) ; and on
the fourth, reversed.
In Dent on v. Great Northern Railway Company, (i) it was
held that the publication by the defendant's company in their
time tables of a train on another line was a promise by the
defendants to a person travelling by their line, and intending t®
go on, that there was such a train as advertised. In Great North-
ern Railway Company v. Hawcroft, (2) the plaintiff bought a
ticket which read : " Barnsley to London and back, excursion
" ticket. To return by the trains advertised for that purpose on
" any day not beyond 14 days from the date hereof." The plain-
tiff presented himself on a Saturday within the 14 days at the
London station in time for the morning return train. He was
crowded out, and the defendants refused to let him proceed by
an ordinary train. He had to wait till the evening train which
took him to Doncaster, from which there was no other service to
Barnsley on that day. The plaintiff hired a carriage from Don-
(1) (1856) 5 El. & 151. 860, 25 L. J. Q. B. 129.
(2) (1852) 21 L. J. Q. B. 178,
CARRIERS. 341
caster to Barnsley, and was held entitled to recover the expenses
incurred.
In Buckmaster v. Great Eastern Railway Company , (i) the
plaintiff recovered the cost of a special train and damages for loss
of market under the following conditions : He was a miller, and
held a season ticket between Framlington and London, and used
to go to the Mark Lane corn market twice a week by a train
which departed at 6.45 a.m., and reached London at 10.40, in
time for him to catch the market at n. On the occasion in
question, the train, through negligence of the company's servants,
was not ready to leave Framlington anywhere near the time
advertised. He obtained a special train, but nevertheless missed
the market.
In Fitzgerald v. Midland Railway Company, (2) it was held
that where a passenger fails to catch a train on the line of a
company by reason of the ordinary train being delayed through
no fault of the company, he is not entitled to have a special.
In that case flood w as the cause of the delay. In Thompson v.
Midland Railway Company, (3) a similar decision was given
where the delay arose from the negligence of other companies.
The general rule governing such cases would appear to be best
stated by Brett, J., (4) glossing the language used by Alderson, B.,
in Hamlin v. Great Northern Raihv ay Company, (5) as follows :
" We think it may properly be said that if the party bound to
" perform a contract does not perform it, the other party may
" do so for him as reasonably near as may be, and charge him
" for the reasonable expense incurred in so doing ; " — and by
Blackburn, J., in Hobbs v. London & South Western Railway
Company, (6) who there said : " Where there is a contract to
-«' supply a thing, and it is not supplied, the damages are the
" difference between that which ought to have been supplied,
" and that which you have to pay for, if it be equally good ; or
" if the thing is not obtainable, the damages would be the differ-
" ence between the thing you ought to have had and the best
(i) (1870) 23 L. T. 471. (2) (1876; 34 L. T. 771.
(3) (i875) 34 L. T. 34.
(4) In Le Blanche v. Lon. & N.W. Ry. Co., L.R., I C. P. D. at pp. 302-3.
(5) i H. & N. 408, 26 L. J. Ex. 20.
(6) L. R., 10 Q. B. at pp. 119-20.
342 THE RAILWAY LAW OF CANADA.
" substitute you can get upon the occasion for the purpose."
* * * « Now, as I have said, what the passenger is entitled to
" recover is the difference between what he ought to have had
" and what he did have ; and when he is not able to get a con-
" veyance at all, but has to make the journey on foot, I don't
" see how you can have a better rule than that which the learned
" judge gave to the jury here, namely, that the jury were to see
" what was the inconvenience to the plaintiffs in having to walk,
" as they could not get a carriage."
The learned judge, however, held that no damages could be
allowed on account of the female plaintiff having caught cold
while walking home, as being too remote, (i)
Limiting 25. There is no doubt that in regard to regular passengers the
liability. company cannot relieve itself by any notice, condition or declara-
tion, if the damage arises from any negligence or omission of the
company or of its servants. (2) But the question arises as to
the company's liability, and its power to limit the same., towards
those who are travelling under special contract, such as on a free
pass or at reduced rates, or in some special capacity on the cars.
In a somewhat early Ontario case, (3) it was held that where a
person was travelling on a free pass, upon the condition that he
should assume the risk of accidents and damage, his heirs could
not recover damages for his being killed by the giving way of a
bridge over which he was passing in the train. (4) There is
no doubt that the general tenor of the English law is to the same
effect, (5) but it has often been held otherwise in the United
States. (6)
In Duff v. Great Northern Railway Company, (7) Palles,
C. B., wished it to be observed that his judgment was based upon
the fact that the person who actually travelled (as a drover) was
(1) But see Toronto Ry. Co. v. Giinsled, 24 S. C. R. 570 ; and Thompson,
Carriers of Passengers, 566.
(2) Sec. 246, sub.-^ec. 3.
(3) Sutherland v. The Great Western Ry. Co., 7 U. C. C. P. 409.
(4) But see Woodruff v. G. W. Ry. Co., 18 U. C. Q. B. 420.
(5) McCawley v. Furness Ry. Co., L. R., 8 Q. B. 57 ; Duffw. The Great
Northern Ry. Co., 4 Ir. Law. Rep. 178 ; Gallin v. London & North Western
Ry. Co., L. R., 10 Q. B. 212 ; Hall v. North Eastern Ry. Co., L. R., 10 Q.
B.437.
(6) Fedfield, Vol. 2, p. 236, note c. Hutchinson, § 583-^4.
(7) 4 Ir. Law Rep. 178.
CARRIERS.
343
the person who signed the contract, (i) Had he been a
different person, the connection of the drover with the contract
might have involved a question of fact, and this might have been
for the jury. This passage from the judgment of the learned
Chief Baron would seem to throw doubt upon the holding in an
Ontario case (2) involving this point. In this case C. &
Co., news dealers, made a contract with the defendant com-
pany whereby they should carry C. & Co., their news boys and
agents on their trains, the company to be exempted from all
liability for any injury to the persons or property of said C.
& Co., their news boys and agents, whether occasioned by
defendant's negligence or otherwise. Alexander, one of the news
boys, while lawfully standing upon the platform of one of the
company's stations, was struck by a piece of timber, which had
been loaded so carelessly as to project over the platform. As the
result of his injuries, he died. It was held that the administrator
could not recover. That deceased must be taken to have accepted
the terms on which the company agreed to carry him, whether
aware of its terms or not. Draper, C. J., of appeal, however, dis-
sented, and, we think, rightly.
It is to be noticed in this case that the fact of the injury occur-
ring off the train would not alter the company's liability. Where
the company can exempt themselves from liability, such exemption
extends not only during the actual transit on the railway, but
whilst the passenger is upon any part of the railway company's
premises. (3)
36. Mere notices to the passenger are no more effectual for the Notice of
purpose of limiting the liability of the carrier of passengers than I'™1.1*1'011 of
of the carrier of goods ; and where a document is complete on
the face of it, but having on the back of it something which has
not been brought to the knowledge of a contracting party, he
cannot be held to have assented to that which he has not seen
and of which he knows nothing. (4) The law as to notice of
(1) But see The Railroad o. Lockwoo-l, 17 Wai1. 357.
(2) Alexander v. Toronto & Nipissing Ry. Co., 33 U. C. Q. B. 474 ; 35
U.C Q. B.453.
(3) Gallin v. Tlie London & Northwestern Ry. Co., L. R., 10 Q. B.
212'.
(4) Henderson y. Stevenson, 2 Sc. App. 470 ; Bate y. C. P. Ry. Co., 18
S. C. R. 697.
344 THE RAILWAY LAW OF CANADA.
conditions on passenger tickets has now been settled by the
House of Lords in Richardson & Co. v. Rowntree (i) where
it was held that if in the opinion of the jury a passenger receiving
a ticket from a shipping company does not see or know that
there are any conditions thereon, he is not bound by the condi-
tions. And if he knew there was writing on the ticket, it is a
question of fact whether he had reasonable notice that the
writing contained conditions, and he is or is not bound thereby
according as he has had such notice or not.
Passengers' Baggage.
Checks. 27. The next question to be considered is the liability of a
railway company for baggage carried for passengers, either check-
ed or unchecked. In the first place, as to checked baggage, it is
provided bysec. 25oof the Act that checks shall be affixed to every
parcel of baggage having a handle, loop or fixture of any kind,
delivered to any agent or servant of the company for carriage,
and a duplicate of the check must be given to the passenger.
By sec. 251, if the check is refused, the company is liable to the
passenger for a penalty of $8.00, recoverable in a civil action, and
no fare can be collected from the passenger; and if he has paid
his fare, it must be refunded. By sec. 252, any passenger who
produces such a check can himself be a witness in any action or
suit brought by him to prove the value of his baggage not
delivered. Under the Civil Code of Quebec (2) the passenger
is entitled to prove the contents and value of any piece of baggage
delivered by him to a carrier, and lost or damaged.
Personal 28. But the liability of the carrier in such cases is confined to
personal baggage, as it is called, and he is not liable for articles
of extraordinary value, such as large sums of money, gold, silver,
jewels, precious stones, or articles of unusual value, unless the
contents of the trunk or package and their value have been
declared to the carrier before delivery. (3) Applying these
(1) 6 R. 95 (1894), Parker v. S. E. Ry., L. R., 2 C. P. D. 416 approved.
(2) C. C. 1677.
(3) C. C. 1677 ; and see Cadwallader v. G. T. Ry. Co., 9 L. C. R. 169 ;
and Robson v. Hooker, 3 L. C. J. 86 ; Bruty v. G. T. Ry. Co., 32 U. C.
Q. B. 66; McCaffrey v. C. P. Ry. Co., i Man. 350; Macrow v. G. W.
Ry. Co., L. R., 6 Q. B. 612 ; Mytton v. Midland Ry. Co., 28 L. J. Ex. 385 ;
Phelps v. Lon. & N. W. Ry. Co., 34 L. J. C. P. 259 ; Cahill v. Lon. & N '
\V. Ry. Co., 30 L. J. C. P. 289, 31 L. J. C. P. 271.
CARRIERS. 345
principles, it is clear, in the first place, that the company will not
be held liable for loss or injury occurring to any kind of baggage
which was not personal to the traveller, — such, for instance, as
merchandise contained in a checked trunk. This is undoubted,
and the doctrine has been extended to the case of commercial
travellers carrying samples of merchandise in a trunk checked
as ordinary baggage. This has been decided in Quebec in a
case of Canadian Navigation Co. v. ffayes, (i) and followed in
a late case of Packard v. C. P. R. Co. (2) In the latter case,
the plaintiff was a commercial traveller, carrying samples for his
firm, and he checked his trunk containing these samples as
ordinary baggage. The trunk was destroyed by fire in an
accident which occurred on the railway, and, in an action to
recover, it was held that the company were not liable in such a
case, as the articles contained in the trunk were not personal
baggage. It was strongly contended in that case that the com-
pany were liable, because the trunk was of a particular character
known as a commercial traveller's trunk, which would necessarily
call the attention of the agent or baggage master to the nature of
its contents, and that having been checked with such knowledge,
there was an implied contract on the part of the railway com-
pany to carry it as such. This, however, was held to be of no
avail, such implied contract not being binding upon the company,
they being only liable where an express declaration of the con-
tents and value of the articles was made before the delivery. (3)
If, however, actual knowledge can be proved on the part of the
baggage master or other servant of the railway of the nature of
the goods carried, the fact of his receiving and checking it would
make the company responsible in case of loss or damage. (4)
But, to render the company responsible, it is necessary to posi-
tively show actual knowledge that the articles carried are mer-
chandise. It is not enough to show, as in the case of Packard v.
C. P. R. Co., (5) that there was sufficient apparent upon
the article itself to have directed attention to it, and to have
(1) 19 L. C. J. 269, M. L. R., c S. C. 64.
(2) M. L. R. 5 S. C. 64.
(3) As to samples of merchandise carried under special conditions, see
Dixon v. Rich. & Ont. Nav. Co., 18 S. C. R. 704.
(4) Great Northern Ry. Co. v. Shepherd, 21 L. j. Ex. 286.
(5) Ubi supra.
346 THE RAILWAY LAW OF CANADA.
caused the company's employees to have made inquiries, (i)
This has been held in England in the case of Cahill v. London
and Northwestern Ry. Co. (2) There, the plaintiff gave to a
railway porter a box labelled " glass," and it was placed in the
luggage van. It was lost, and the plaintiff sued to recover the
value. The box contained merchandise only, and no personal
baggage. It was contended by the plaintiff that the fact of the
box being labelled "glass" was enough to indicate to the com-
pany's servants that it contained merchandise, and that as they
accepted it as such without further charge, they were liable. The
action, however, was dismissed, and the remarks of Chief Justice
Earle, in giving judgment in the Court of Common Pleas, are
most apposite. " It seems to me," hs said, " that it would be
introducing a rule most pernicious to public convenience, that a
railway company, to avoid being fixed with liability which,
according to their regulations, they do not intend to take, should
be bound to make inquiries where a package is brought which
appears likely to contain merchandise, and, if they do not make
those inquiries, they should be taken to know the contents of
such package."
As to what would constitute personal baggage apart from
merchandise, it may be laid down as a safe rule that all things
which are general and customary for a passenger to carry for his
use, and which are suited to his condition in life, would be
regarded as personal baggage. Whatever a passenger takes with
him for his personal use and convenience, and that is to be
judged in relation to his habits or wants as a member of the
particular class of society to which he belongs, either with a view
to present necessities or any purpose for which the journey is
undertaken, is to be regarded as personal baggage. (3)
in Quebec a carrier has been held responsible for the loss of
jewellery and such like articles contained in the trunk of a lady
passenger, and which had been lost during the voyage, they
being proved to be suitable to her condition in life, though of
considerable value. (4)
(1) Lee v. G. T. Ry. Co., 36 U. C. Q. B. 350.
(2) 30 L. J. C. P. 289, 31 L. J. C. P. 271, 13 C B. N. S. 818.
(3) Macrow v. G. W. Ry. Co., L. R., 6 Q. B. 612 ; Phelps v. Lon. & N.
W. Ry. Co., 34 L. J. C. P. 259 ; Hudston v. Midland Ry. Co., 38 L. J. Q. B.
213 ; Bruty v. G. T. Ry. Co., 32 U. C. Q. B. 66.
(4) Woodward «. Allan, I L. N. 458.
CARRIERS. 347
In Ontario, where the passenger, a carpenter by trade, had
in his box, which was lost, a concertina, a rifle, a revolver, two
gold chains, a locket, two gold rings, a silver pencil case, a
sewing machine, and a quantity of tools of his trade, it was held
that the articles in italics were personal baggage for which the
carrier was responsible, but that the others were not; — Wilson, f.,
however, dissenting as to the concertina, (i) In the United
States, however, it has been held that a set of tools of reason-
able worth may be considered part of the personal baggage of
a carpenter or mechanic. (2)
On the other hand, it has been held in England that a quantity
of bedding carried in a trunk, consisting of six pairs of sheets
and an equal number of blankets and quilts, was not personal
luggage. This was in the case viMacrow v. Great Western Ry.
Co, (3) There the plaintiff had given up his residence in Canada,
and these articles were intended for the use of his household
when he should have provided himself with a home in London.
The trunk was lost, and he took action against the railway com-
pany for the value of these articles. Chief Justice Cockburn said
in that case that " the term ' ordinary luggage,' being confined
" to what is personal to the passenger and carried for his use and
" convenience, it follows that what is carried for the purpose of
"business, such as merchandise or the like, or for larger or
" ulterior purposes, such as articles of furniture or household
" goods, would not come within the description of ordinary
" luggage, unless accepted as such by the carrier. Now, though
" we are far from saying that a pair of sheets or the like, taken by
" a passenger for his own use on a journey, will not be consi-
" dered as personal luggage, it appears to us that a quantity of
" articles of this description, intended not for the use of the
" traveller on the journey but for the use of his household, when
" permanently settled, cannot be held to be so."
In another case the pencil sketches of an artist placed in his
portemanteau were held not to be part of his ordinary baggage, so
(1) Bruty v. G. T. Ry. Co., 32 U. C. Q. B. 66.
(2) Porterw. Hildebrand, 14 Perm. St. 129; Kinsas City Ry. Co. v.
Morrison, 34 Kan. 502 ; Davis v. The Railroad, 10 How. Pr. 330.
(3) L. R..6Q. B.6i2.
348 THE RAILWAY LAW OF CANADA.
as to enable them to be conveyed free of charge, (i) Again, title
deeds of a client, which an attorney may be carrying with him to
produce in court, would not be considered as personal baggage;
nor would bank notes to a considerable amount carried in a bag
to pay the expenses of the trial of a suit. (2) But otherwise, if
the money is carried to pay travelling expenses not exceeding a
reasonable amount. (3) It is, however, generally a question of
fact as to what personal baggage is.
Articles, which, under certain circumstances, could not be held
to be personal baggage, might be so considered under different
circumstances. So where a passenger carried in his bag small
articles of no great value intended for presents to his friends at
his destination, they might be considered as personal baggage,
although not such articles as " travellers usually carry with them
as part of their baggage." (4)
In a Manitoba case, (5) it was held that silk dresses, petticoats
and children's clothing might fairly be held to be personal
baggage, and perhaps an opera glass. As to the latter class of
goods, it was held in an early Quebec case, (6) that where the
traveller is a ship master, common carriers will be held respons-
ible for a dressing case, and for night glasses and telescopes,
upon the presumption that he may reasonably have thought they
would be useful to him in the course of his intended voyage across
the Atlantic. Again, in the Manitoba case, two suits of gentle-
man's clothing were held, under the circumstances of the case,
not to be personal baggage, for the trunk containing them was
carried as the baggage of the plaintiffs wife. Similarly, women's
dresses carried in a man's trunk have been held not to be
personal luggage, for which the carrier would be responsible. (7)
Window curtains, blankets, cutlery, books, ornaments, etc., are
not personal luggage. (8)
(1) Mytton v. Midland Ry. Co., 28 L. J. Ex. 385.
(2) Phelps v. Lon. & N. W. Ry. Co., 34 L. J. C. P. 259.
(3) Merrill v. Grinnell, 30 N. Y. 594 ; Daffy v. Thompson, 4 E. D.
Smith 178; 111. Central Ry. Co. v. Copeland, 24 111. 332. Schouler on
Bails. &Car., § 669.
(4) Hudston v. Midland Ry. Co., L. R., 4 Q. B. 366 ; The Ionic, 5 Blatchf.
C. C. 538 ; Davidson v. Can. Shipping Co., 19 R. L. 558, Q. R. I Q. B.
298 ; Ivatt's Carriers No. 458.
(5) McCaffrey v. C. P. -R., i Man. 350.
(6) Cadwallader v. G. T. R., 9 L. C. R. 169.
(7) Mississippi P. Ry. v. Kennedy, 41 Miss. 671.
<8) McCaffrey v. C. P. R., I Man. 350.
CARRIERS. 349
In estimating the kind, quantity, and value of the baggage
which is allowed to the passenger, it is fair to take into view
whence he comes, whither he goes, and what is his occupation and
social standing, (i)
29. There is no doubt that the carrier is equally responsible for Unchecked
unchecked baggage, whether it is put into the baggage car or is baggaSe-
put into the passenger car, unless indeed such baggage is carried
in the car contrary to the regulations properly published and
brought to the knowledge of the passenger either actually or by
presumption of law. The baggage is in the eye of the law in the
custody of the company, even though carried by the passenger
himself in the car, and they would be responsible for its loss
as if it had been checked, though there is a modification of the
carriers' liability as insurers in such a case. It was held in England,
in the case of Bergheim v. G. E. R. Co. (2) that the carrier is
only liable in case of negligence. " The company must be held
liable as respects those goods as bailees for hire and contractors
to carry, and therefore liable for loss or injury caused by negligence
but not otherwise ; the company have in fact the same liability
with respect to the carriage of those goods as they have with
respect to the carriage of the passenger himself." (3) The
doctrine was more correctly stated in a case of Talley v. Great
Western Ry. Co. (4) per Willes, J., who said : " With respect
" to articles which are not put in the usual luggage van, and of
" which the entire control is not given to the carrier, but which
" are placed in the carriage in which the passenger travel5, so
" that he, and not the company's servant, has de facto the entire
" control of them, the amount of care and diligence reasonably
" necessary for their safe conveyance is in fact considerably
" modified by the circumstance of their being, during that part
" of the journey in which the passenger might under ordinary
" circumstances be expected to be in the carriage, intended by
" both parties to be under his personal inspection and care.
" There is great force in the argument that when articles are
" placed, with the assent of the passenger, in the same carriage
{< with him,and so in fact remain in his own control and possession,
(i) Schouler Bail. & Car., § 671. (2) L."R.,3C.P. D. 22f.
(3) Per Cotton L. J. at p 225. (4) L. R.,6 C. P. 44.
350 THE RAILWAY LAW OF CANADA.
" the wide liability of the common carrier, which is founded on
" the bailment of the goods to him, and his being entrusted with
il the entire possession of them, should not attach, because the
" reasons which are the foundation of the liability do not exist.
" In such cases, the obligation to take reasonable care seems
" naturally to arise, so that when loss occurred, it would fall on
" the company only in the case of negligence in some part of the
" duty which pertained to them, and that in such a case, it was
" an implied term in the contract of carriage that, in return for
<l the convenience of having his luggage at hand, the passenger
" should during the journey take such care of his own property
" as might be expected from an ordinarily prudent man, and
" should not by his own negligence expose it to more than
11 ordinary risk of luggage carried in a passenger carriage, and
" that the liability of the company was, under such circumstances,
" modified by the implied condition that the passenger should
" use reasonable care, and where the loss was caused by his
" neglect to do so, and would not have happened without such
" negligence, the company would not be responsible." (i)
The opinions expressed in this case, and in those cited in the
note, have been entirely concurred in by the House of Lords in
the comparatively recent case of Great Western Railway Co. v.
Bunch, (2) where the rule is laid down as follows : " A railway
company accepting passengers' luggage to be carried in a
carriage with the passenger enter into a contract as common
carriers, subject to this modification, that, in respect of his inter-
ference with their exclusive contro 1 of his luggage, the company
are not liable for any loss or injury occurring during its transit,
to which the act or default of the passenger has been contri-
butory." And the reasoning in the Bergheim case (3) was
disapproved.
In this country the same rule prevails. In the Ontario case of
Gamble v. The Great Western Railway Company, (4) Draper
C. J., held that the only difference caused by the system of check-
(1) And see Richards v. Lon., Brighton & South Coast Ry. Co., 18 L. J.
C. IJ. 251 ; Butcher v. Lon. & S. W. Ry. Co., 24 L. J. C. P. 137.
(2) 13 App. Cas. 31, and at pp. 42 and 55.
(3) Supra, p. 349. .
(4) 24 U. C. Q. B. 407.
CARRIERS. 351
ing, as against the English system, was that the former was to be
considered as an additional precaution to prevent the baggage
from being given up to the wrong person, and the laws of this
country and of England are the same as regards the railway
company's liability. In the leading American case, (i) where
the railway company were declared not liable for the loss of
plaintiffs overcoat which he had taken into the car with him, it
was pointed out that " the overcoat was not delivered into the
possession or custody of the defendants, which is essential to
their liability as carriers." But in this country, as in England, such
delivery into the possession of the carrier is implied from the
usual course of dealing in such cases, and Hagarty, J., in the
Gamble case (2) said : " If defendants ordinarily permit pas-
sengers to take articles of luggage into the carriage with them,
making no objection, and not requiring them to surrender it into
their servants' special charge, it is not easy to see why they should
not be responsible." (3)
In a Quebec case (4) it was held that a carrier is not liable
for the loss or theft of an overcoat carried by a passenger in a
steamboat, and placed by a passenger on a sofa in the eating
saloon, while he was taking supper. And Monk, J., drew a dis-
tinction between this case and the Ontario one quoted above, to
the effect that in the latter case it was luggage that was lost and
in this case it was an overcoat, which was a distinction of some
moment. This was a case where the article, whether to be
considered as baggage or not, could hardly be considered as
within the control or under the charge of the carrier, but practi-
cally entirely in the charge of the owner, and lost through his own
negligence; though the case turned partly upon the point that
the coat was not baggage.
3O. Carriers are not only responsible for articles of baggage when
received by them on their trains or vehicles, but for articles liability
delivered to their proper officers or servants for carriage, even
though, in the case of a railway, never actually placed upon the
train. (5) So in England, it has been held that a railway company
(1) Tower v. The Utica & Schenectady Railroad Co., 7 Hill (N.Y.) 47.
(2) Supra, p. 350. (3) At p. 412.
(4) Torrance v. The Richelieu Company, lo L. C. J. 335 (1866).
(5) C. C. 1674; Lovell v. Lon., Chat. & Dover Ry. Co., 45 L. J. Q. B.
476.
352 THE RAILWAY LAW OF CANADA.
is liable for the loss of baggage delivered to a porter who under-
took to place it upon the train while the passenger was purchasing
her ticket, and that the porter was a person held out by the rail-
way company as authorized to receive baggage and other articles
for transportation, and that the passenger was not personally
bound to see the luggage placed upon the train ; and it having
been lost or stolen, the company was liable, (i)
And in a Quebec case it has been held that where a person in
the employ of the carrier assumes the charge of baggage deliv-
ered on board of a vessel, the carrier is liable for such baggage,
though the person who received the baggage was there merely
during the temporary absence of the officer whose duty it was to
receive baggage. (2) And, similarly, where baggage was delivered
to the company's policeman, at one of their depots, several hours
before the departure of the train, it was held that the company
were liable, in the absence of proof that the plaintiff had knowl-
edge of the company's by-law declaring them not responsible
for unchecked baggage. (3)
Checks given for baggage are merely evidence of its having
been received by the carrier, and its non-delivery, but do not of
themselves establish the carrier's liability therefor. (4) In a
Nova Scotia case (5) a passenger sued for the value of her
trunk, which she alleged had been placed in the hands of the
company's servants, and a check given her therefor. Defend-
ants denied receipt of the trunk, and gave evidence that plain-
tiff had received the check, not from them, but from the cabman
who had driven her to the wharf. It was held that the case was
one for a jury only, and not for the Court to decide. Checking
is only an additional precaution to prevent the baggage being
given to the wrong persons ; and the company will be liable as
well for the loss of articles unchecked. (6)
When 31. The generally recognized principle in England and in the
liability United States is that the liability of the company ceases upon
ceases.
(1) Bunch v. G. W. Ry. Co., 13 App. Cas. 31.
(2) Monison v. Richelieu & Ont. Nav. Co., 5 L. N. 71, S. C. 1882.
(3) Tessier v. G. T. R., 3 R. L. 31 ; but see Welch v. Lon. & N. W
Ry. Co., 34 W. R. 166.
(4) Wood on Railways. Vol. 3, sec. 403.
(5) Stimpson v. The New England & Nova Scotia S. S. Co., 3 Geld &
Oxley 184.
(6) Gamble v. G. W. Ry. Co., 24 U. C. Q. B. 407.
CARRIERS.
353
the arrival of the train, and the expiration of a reasonable time
given to the passenger to take delivery of his luggage, (i) The
contract of the company with the passenger is to carry him and
his luggage to the point of destination, and there deliver the bag-
gage to him, and during such transit they are liable as common
carriers for the safe carriage and delivery of the luggage ; but if
the passenger, for his own convenience, chooses to leave the
luggage at the station on the arrival of the train, they become
merely depositaries, and liable only for negligence as ware-
housemen or bailees. (2)
"It is the duty of a railway company to have baggage ready
for delivery on the platform at the usual place of delivery, until
the owner, in the exercise of due diligence, can call and receive
it ; and it is the owner's duty to call for and receive it within a
reasonable time." (3) Where a passenger, on arriving at his
destination, deliberately refrained from applying for his baggage
on being told by his cabman that he could not conveniently take
it, and on sending for it on the following morning, one of the
three trunks could not be found ; it was held, on the above
grounds, that the liability of the railway company as common
carriers had ceased, and that the only claim (if any) which the
'plaintiff, under the circumstances, had against the company
was as warehousemen or bailees. (4) And, in a Manitoba case,
where goods remained at the station at which a passenger
alighted, but it did not appear that the railway company had
charged, or was entitled to charge, for storage, it was held that
the company were not liable as warehousemen. (5)
The reasonable time to be given to the passenger for the
taking away of his luggage would appear to depend upon such
circumstances as the quantity of luggage, the number of people
and the facilities afforded. In other words, the passenger must
(1) 2 Redfield,§ 171 ; Richards v. Lon., Brighton & South Coast Ry. Co.,
:8 L. J. C. P. 251 ; Butcher v. Lon. & S. W. Ry. Co., 24 L. J. C. P. 137 ;
Patscheider v. G. W. Ry. Co., L. R.,3 Ex. D. 153 ; Hodkinson r. Lon. &
N.W. Ry.Co., L.R. nQ.B. D. 228; Fiithz-. N.E. Ry. Co., 36 W. R. 467.
(2) C. C. 1799, 1802.
(3) Redfield, Vol. 2, § 171, No. 3;citing Ouimet u. Henshaw, 35 Vt. 605.
(4) Vineberg v. G.T. R., 13 Ont. App.93; and see Penton v. G. T. R.,
28 U. C. Q. B. 367; Hoganz/. G. T. R.. 2 Q. L.R. 142; Hallz/. G. T.R.,
34 U.C. Q. B. 517; Kellertf. G. T. R.,' 22 L. C. J. 257.
(5) McCaffrey v. C. P. Ry. Co., i Man. 350.
23
354 THE RAILWAY LAW OF CANADA.
have time given him to secure a means of conveyance and ob-
tain possession of his baggage, due regard being had to the
quantity of baggage, the number of people, the size of the station,
and so on. If, however, he voluntarily refrains from taking his
baggage on the arrival of the train, and leaves it in the custody
of the company, they would not be responsible, except in case
of negligence. These principles have been generally recognized
by the Quebec Courts, up to a very recent period. In an early
case of Hogan v. G. T. Ry. Co. (i) Chief Justice Meredith, one
of the most learned judges who has ever sat on the Bench of that
Province, held that where a passenger did not call for his trunk
on arriving at his destination at ten o'clock in the morning, but
for his own convenience left it all day and over night in the bag-
gage room, and it was destroyed by fire early the next morning
by the accidental burning of the station, the -company were not
responsible. This decision was followed in a late case of Kellert
v. G. T. Ry. Co. (2) There the same doctrine was laid down, that
the responsibility of carriers with regard to travellers' baggage
ceases when the owner arrives at his destination, and without a
new contiact between the traveller and the company to prolong
the responsibility of the latter, the company are not liable for the
loss of the baggage, this loss being attributable to the negligence
of the traveller. The liability of common carriers is by the
Quebec Code (3) assimilated to that of innkeepers, for the safe
keeping of baggage and personal effects of travellers lodging in
their houses ; and in similar circumstances to those just men-
tioned, the Courts have modified the liability of the innkeeper, —
that is to say, that where the relations of innkeeper and guest
cease to exist, the liability of the innkeeper for baggage left in
his possession afterwards is assimilated to that existing in the case
of a voluntary deposit. For instance, where a person comes to
lodge in a hotel, bringing baggage with him, and on his depart-
ure leaves his baggage in the hotel in the charge of the inn-
keeper, and does not return to lodge there, the innkeeper is
only liable in case of negligence, his responsibility being only to
exercise the care of a prudent administrator, and not remaining
(i) 2 Q. L. R. 142. (2) 22 L. C. J. 257.
(3) C. C. 1672.
CARRIERS. 355
liable except in case of negligence, (i) In Ontario, the doctrine
has been clearly recognized both with regard to railway com-
panies as carriers of passengers' baggage, and to innkeepers. We
might instance the case of Penton v. G. T. Ry. Co., (2) where
a trunk was left by the passenger in charge of the baggageman
from three o'clock to eight o'clock in the afternoon, and on his
return was found to be missing. It was held that the company
were not responsible, as their liability ceased when the trunk was
placed on the platform, and a reasonable time had elapsed for
the passenger to remove it. Again, in the late case of Vineberg
v. G. T. Ry. Co., (3) where the passenger, upon the arrival of
the train, refrained from applying for his baggage, and on send-
ing for it the next day, one of his trunks could not be found, it
was held that the liability of the company as carriers had
ceased, and that the plaintiff's only claim (if any he had) against
the company was as warehousemen or bailees. (4) The same
principle is enunciated with regard to innkeepers in the case of
Palin v. Reed. (5) There the plaintiff had been for some time
a guest of the defendant, an innkeeper, and on leaving the inn,
was allowed to leave a box containing papers, etc., in the bag-
gage room of the hotel. On returning some days afterwards, the
'box could not be found. There was no other evidence of ne-
gligence. It was held that the plaintiff could not recover.
There would seem to be no difference between the law
in Ontario and in Quebec in this respect. In a very recent
case, however, of Pellant v. C. P. R. Co., (6) the Superior
Court of Quebec departed from this principle, and held
that there was no difference between the liability of
railway companies as carriers of passengers' baggage while in
transit, and their liability as- warehousemen or depositaries after
its arrival. There the plaintiff, on the arrival of her baggage at
Montreal, ascertained that it had safely arrived, and allowed it
to remain in the company's premises for over 24 hours. On
(1) Holmes v. Moore, 17 L. C. R. 143.,
(2) 28 U. C. Q. B. 367.
(3) 13 Ont. A. R. 93.
(4) And see McMillan v. G. T. Ry. Co , 16 S. C. R. 555, per Strong,
J. ; Chapman v. G. W. Ry. Co., L. R., 5 Q. B. D. 278.
(5) 10 Ont. A. R. 63.
(6) M. L. R., 7 S- C. 131.
356 THE RAILWAY LAW OF CANADA.
sending for it the following morning, and on production of her
checks, it was found that one of the trunks was missing. The
whole of the baggage had been placed in the company's baggage
room, and was proved to have remained there as unclaimed bag-
gage until a short time previous to being claimed. The com-
pany, in order to rebut any presumption of negligence, proved the
safety of the premises, and that one or more persons were con-
tinually present in charge of the baggage; that it had not been
missent to any other place, and could not have been taken away
by mistake in exchange for other checked baggage, advancing
the theory that it must have been stolen or taken away, notwith-
standing all due care and diligence on the part of the company's
servants. The Judge in the Superior Court held the company
liable, and his decision might be supported on the ground that
if, as appeared to be the case, the baggage was taken away dur-
ing the day, it must have been through some fault or want of
vigilance on the part of the men in charge of the baggage room;
but the learned Judge laid down positively the principle that the
company's liability as carriers existed until the actual delivery of
the goods, and that the extent of their responsibility was the
same as depositaries of the goods as it was while they were
actually in transit on the railway., However, as the learned Judge
took the view that, as carriers, the company would be excused
in the event of an accident happening on the line without negli-
gence on their part, such for instance as a fire,' it cannot be said
that he applied to the company as depositaries a greater meas-
ure of responsibility than he would have applied to them as car-
riers ; in fact, he seems to have held that as carriers of the bag-
gage, they would only have been liable in the case of negligence.
This being the learned Judge's view, it might be well said that
their responsibility as depositaries was not greater than that as
carriers, but there seems to be little doubt that the jurisprud-
ence is now well settled that their liability as cairiers does not
depend upon the question of negligence, but is practically abso-
lute. This judgment was confirmed in appeal, chiefly on the
ground that negligence and want of proper care on the part of
the company's servants in charge of the baggage room was
proved. (r)
(j) C. P.Ry. r. Pellant, Q. R. i Q. B. 311.
CARRIERS. 357
In a subsequent case it was held by the same judge, that where
a transatlantic steamship company consented to keep travellers'
baggage on arrival till examined by the customs officers, and
placed it in their sheds, the contract of carnage was not ended until
the examination was completed, and an opportunity given the
passengers to take away their baggage ; and that the company
were liable for a trunk 'ost pending the examination, (i) And
this would be in accordance with the principle that a reasonable
time must be allowed to take away baggage*.
Where baggage has been found after suit has been issued, and
has been accepted by the owner, the railway company is only res-
ponsible for the taxable costs incurred up to date of delivery. (2)
32. This subject has given rise to much discussion. A large Liability of
number of decisions in the United States has resulted in rendering sleeping car
companies,
the law there fairly definite.
In this country there are apparently but two decisions, one in
the Province of Ontario, (3) the other in the Province of Que-
bec. (4)
In the United States the law on the subject is briefly stated
as follows by the New York Law Journal ' : — " While the company
'is not liable as an insurer, it is bound to furnish sleeping passen-
gers with reasonable protection against theft, as from the very
nature of the contract between the parties, it was intended that
the passengers should not remain capable of protecting them-
selves." (5) The company is bound to have watch kept the
entire night. (6)
The almost universal rule is that sleeping car companies are
not liable as common carriers, or innkeepers, but only for negli-
gence, and that the burden is upon the plaintiff to offer some
proof of negligence in addition to the fact of loss. (7)
(i) Davidson v. Can. Shipping Co., 19 R. L. 558. Confirmed in appeal
Q. R. I. Q. B. 298.
(-2) Provencherr'. C. P. R., M. L. R., 58. C. 9.
(3) Steam v. The Pullman Car Co., 8 O. R. 171.
(4) Sise v. The Pullman Palace Car Co., Q. R., i S. C. 9, confirmed by
the Court of Queen's Bench in Appeal, Pullman Car Co. v. Sise, Q. R., 3
Q. B. 258.
(5) Pullman Car Co. v. Gardner, 3 Pennypaker (Penn.) 78 ; Carpenter
v. N. Y. N. II. &H. R. R. Co., 124 N. Y. 53.
(6) Ib ; Blum v. Southern Pullman Car Co., 3 Cent. L. J. 591.
(7) Pullman Palace Car Co. v. Low, 30 Cent. L. J. 245 ; Carpenter v.
N. Y.N. H. & H. R.R.Co., 124 N. Y. 53.
358 THE RAILWAY LAW OF CANADA.
On the question of the measure of damage, it has been held
that the responsibility extends only to a passenger's clothing and
personal ornaments, the small articles of luggage usually carried in
the hand, and a reasonable sum of money for travelling expenses,
taking into consideration his circumstances in life. It certainly
would be inequitable to the company to charge it with liability
for any indefinitely large sum which a man may choose to carry
with him and place under his pillow, (i)
The two Missouri cases last cited hold, in addition to the pro-
positions above laid down, that a passenger who leaves in his
waistcoat, in his berth, a large sum of money, while he goes to
the closet at the end of the car, is guilty of contributory negli-
gence as a matter of law. If a passenger, before retiring, leaves
his clothing and valuables in an empty berth directly above him,
which upper berth he has not hired and does not control, it is
not as a matter of law such contributory negligence as will bar
recovery. (2)
The whole gist of the matter in these sleeping car decisions
is that the contract contemplates the passengers going to sleep,
and that the company is therefore bound to take precautions to
protect him from stealthy theft. If the passenger is awake, the
ordinary rules as to the protection of his own property apply. On
this point it has been held (3) where a passenger on a parlor
car got off at a station for refreshments, leaving property on her
seat which she did not put under the charge of defendant or its
agents, and the same was stolen during her absence, that she
was guilty of contributory negligence fatal to her action.
Other cases have been decided in keeping with the foregoing
jurisprudence. (4)
In discussing this question from a practical point of view, it is
evident that the question, as to whether sleeping car companies
are or are not liable as common carriers or innkeepers, is not of
such importance as the determining by the courts of the degree
of negligence required to render the company responsible.
(l) Blum r. Southern Pullman Car Co. , 3 Cent. L.J. 591 ; Root v. Sleep-
ing Car Co., 28 Mo. App. 200 ; Wilson v, B. & O. R. R. Co., "2 Mo. App
682.
(2) Florida v, Pullman Car Co., 37 Mo. App. 598.
(3) Whitney z: Pullman Palace Car Co , 143 Mass. 243.
(4) Hampton v. Pullman Palace Car Co., 42 Mo. App. 134 ; Banott v.
Pullman Palace Car Co., 51 Fed. Rep. 796.
CARRIERS. 359
For instance, in the Ontario case, (i) which based its deci-
sion on the American cases, the question turned entirely upon
the negligence of the company, and as the latter were held not
to be insurers of the baggage, the burden of proof was upon
plaintiff to show negligence on the part of the company. This
he failed to do to the satisfactfon of the judges, as he could not
prove any specific act of negligence. But in a New York
case, (2) where the facts were exactly the same, as was appar-
ently the law applicable to the case, the court said : " The un-
disputable evidence is that the entire force employed on the
sleeper, which ran over an important thoroughfare, and made
frequent stops, was one man (as in the Ontario case) who acted
as conductor, as porter, and was also engaged for his own profit
in blackening the shoes of the passengers. Whether this em-
ployee had that part of the sleeper, which is for the common use
of passengers and the servants of the corporation, constantly
in view during the trip is not shown by the evidence, except
inferentially. These facts affirmatively appear, and in addition
it may be presumed that he assisted passengers in entering and
leaving the coach at intermediate stations. The existence of these
facts was not denied, nor was any explanation of them offered.
The defendant gave no evidence. Under the circumstances the
evidence was sufficient to put the defendant to proof of the care
which it took of the occupants of the sleeper on this trip, and in
the absence of any explanation on its part it was sufficient to
require the question, whether the loss was caused by the defen-
dant's negligence to be submitted to the jury."
It may be pertinently asked, why, in the United States, are all
actions for losses in Pullman cars taken against the Pullman Car
Company instead of the railway ? Is it because the railway
company, with whom the contract of carriage is always made,
would not be liable? This cannot be so, for it has been held
by the Supreme Court of Massachusetts, (3) that if a person,
who has made a contract with a railroad corporation for his per-
sonal transportation from one place to another, takes a seat in a
sleeping car, for which he had bought a ticket, and there loses an
(1) Steam f. The Pullman Car Co., 8 O. R. 171.
(2) Carpenter jy. The N. Y. N. H. & H. R. R. Co., 124. N. Y. 53.
(3) Kinsley f. Lake Shore Railroad, 125 Mass. 54.
360 THE RAILWAY LAW OK CANADA.
article of personal baggage, through the negligence of a person
in charge of the car, and without fault on his own part, it is no
defence to an action against the corporation that the car was not
owned by the defendant, but by a third person, who, by a con-
tract with the defendant, provided conductors and servants ; in
the absence of evidence, that the plaintiff had knowledge of the
fact.
The answer to the question lies in this : that in the United
States a railroad corporation is not liable as a common carrier
for an article of personal baggage kept by a passenger exclusively
within his own control, (i) The contrary, of course, is the
rule in England. (2) Consequently, actions in the former
country have invariably been taken against the sleeping car
company with a view to fixing upon them a special liability as
innkeepers ; but this contention has only been maintained in
about one instance. (3)
We explained in a previous part of this work (4) the rule
applicable to the common law provinces of this country is that
laid down in the Great Western Railway Co. v. Bunch. (5)
Once these views are accepted here, the question as to whether
sleeping car companies are liable as innkeepers or carriers will
not have much practi -al interest in actions by passengers for the
loss of their baggage.
In Quebec, however, the question as to whether sleeping car
companies are liable as innkeepers or not takes a different interest,
for there the term innkeeper must be interpreted according to
the civii law authorities. The case of Sise v. The I'tiUman
Palace Car Co. (6) decided that sleeping car companies are
liable as innkeepers.
In appeal, the Sis', case was confirmed, but, on the grounds of
negligence, the Court avoiding the question as to whether tha
company were innkeepers. (7) In a French case, (8) decided
(1) See Sttpra,\>. 351, and Kinsley v. Lake Shore Railroad, 125 Mass. 54.
(2) Great Western Ry. Co. v. Bunch, 13 App. Cas. 31.
(3) Pullman Palace Car Co. i\ Lowe, Supreme Ct. of Nebraska, Max-
well. J., 1889, Amer. Law Register, 1890, p. 251.
(4) Supra, p. 350. (5) Ubisupra. (6) Q. R., I S. C. 9.
(7) Pullman Car Co r. Sise, Q. R., 3 Q. B. 258.
(8) Compagnie des Wagons-L'ts v. Epoux Barthelemy, Tribunal Civil de
la Seine, 14 Mai 1892, translated in I M. L. D. & R. 323.
CARRIERS. 361
about the same time as the Sise case was decided in the Superior
Court, it was held that such companies were not liable as inn-
keepers ; and it is interesting to note that this case is now before
the Court of Cassation. The decision of this Court will, no
doubt, have much weight in moulding the future jurisprudence
of Quebec on this point. The French case, however, decided
that the sleeping car company were common carriers, acting in
concert with the railway company whose lines and traction they
hired.
33. There is no doubt that however much railway companies Limiting
may limit the amount of baggage that travellers may take as such,
and the sum for which they will be liable thereon, yet the liability
will be controlled by sub section 3 of sec. 246 of The Railway Act,
and the decision of G. T. Ry. Co. v.Vogel, (i) but just to what
extent has not yet been decided by any reported cases, although
the point was barely touched upon in Shaw v. C. P. R. Co. (2)
It was there decided that the section of the Act probably intro-
duces an implied term in contracts to which it is applicable.
Special conditions on tickets must be brought to the notice of
the purchasers thereof to bind them. (3) Thus, where the agent
Obtained the plaintiff's signature, explaining that it was for the
purpose of identification, but did not read nor explain to her any
of the conditions, and having sore eyes at the time, she was
unable to read them herself, it was held that she had not had
notice of the conditions. (4) And, as to the evidence in such
cases, it has been held proper to admit a letter written by the
defendants' baggage agent to the passenger agent, asking whether
plaintiff's attention had been called to the condition on the ticket>
and why it had not been signed by her, and the reply thereto,
stating that the company's rules did not require unlimited first-
class tickets signed, and that this ticket had been sold at full tariff
rate. (5)
The company will not be held liable for loss of baggage where
(1) ii S. C. R. 613.
(2) 5 Man. 334.
(3) Richardson, Spence & Co. r. Rowntree 6 R. 95 (1894); Bate v. C.
P. R., 18 S. C. R. 697 ; Allan v. Woodward, 22 L. C. J . 315, Q. B.
(4) Bate v. C. P. R , 18 S. C. R. 697.
(5) Andersons. C. P. R., 17 O. R. 747.
362
THE RAILWAY LAW OF CANADA.
Prescription
or limitation
of actions.
a commercial traveller, whose ticket was issued at a reduced rate,
caused trunks to be checked which did not constitute his bag-
gage proper, but contained samples, the ticket containing the
condition that in view of the reduced rate the company would
not hold themselves responsible for loss of goods or merchandise
carried by the travellers, (i) But where the condition of the ticket
issued to commercial travellers was "with allowance of 300 Ibs.
of baggage free, but the baggage must be at the owner's risk
against all casualties," it was held by the Supreme Court, that
though the goods lost were in one sense merchandise, they were to
be treated as the personal baggage of a person in the position of
the plaintiff travelling with samples in the course of his business ;
but the company were protected by the condition. (2)
34. The one year's limitation clause, under sec. 287 of the Act
does not apply to actions for loss of baggage arising out of con-
tract, but only to actions for damages occasioned by the com-
pany in the execution of the powers given, or assumed by them
to be given, for enabling them to maintain their railway, jfc) (£)
(1) Packard v. C. P. Ry. Co., M. L. R., 5 S. C. 64.
(2) Dixon 7'. Rich. Nav. Co., iSS.C. R. 704, affirming 15 Ont. A. R. 647.
(3) Andenon v. C. P. Ry. Co., 17 O. R. 747.
CHAPTER XL
NEGLIGENCE.
+s I . Rule in the Provinces other than
Quebec.
\/ 2. Illustrations of remote negli-
gence.
v/ 3. Subsequently developed injuries.
^4. Acts of God.
5, Acts of agents and servants.
</ 6. Non-performance of statutory
duty.
•/ 7. Contributory negligence.
8. Injuries received while avoiding
danger and inconveniences.
9. Children, etc.
i o , Negligence of parents .
II. Intoxication.
,J 12. Burden of proof .
^13. Presumption of negligence.
14. T1,^? Court and the jury.
15. 7">fo /#7t' 0/" negligence in the
Province of Quebec.
\/l6. Injuries to per sons on the railway
track .
17. Obstructing and interrupting
free use of railway.
18. Injuries to employees.
«^ 19. Volenti non fit injuria.
20. Special provisions for the pro-
tection of employees.
21. Investigation into accidents.
22. Cattle injured or killed on the
railway.
23. Burden of proof .
24. Cattle at large on the highway .
25. By-laius allowing cattle to run
at large.
J 26. Damage by fire.
J 27. Evidence in such cases.
28, Rule in the Province of Quebec
as to damage by fire .
1. As regards the English law of actionable negligence, the Ruie in the
following definition of that term by Brett, M. R., (i) is submitted Provinces
other than
as expressing most completely its essential elements : — Quebec.
" The neglect of the use of ordinary care or skill toward a per-
son to whom the defendant owes the duty of observing ordinary
care and skill, by which neglect the plaintiff, without contribu-
tory negligence on his part, has suffered injury to his person or
property. "
It will be seen that in view of this and other definitions to the
same effect, distinctions as to the various degrees of negligence
are immaterial. It is indifferent whether the want of care upon
(i) Heaven v. Fender, L. R. 11 Q. B.U. at p. 507.
364 THE RAILWAY LAW OF CANADA.
which the action is based amounts to slight or gross negligence,
so long as there is an obligation to exercise that care, the want of
which is the cause of injury, (i) As was said by Lord Cranworth,
there is " no difference between negligence and gross negligence ;
it is the same thing, with the addition of a vituperative epi-
thet." (2)
But it is also necessary, in order that the negligence should be
actionable, that it should be the proximate and not the remote
cause of the injury to the plaintiff. (3) In the case of Victorian
Railway Commissioners v. Coultas (4) in the Privy Council, it was
decided that damages for a nervous shock or mental injury
caused by fright at an impending collision are too remote. (5)
Pollock, C. B., in Greenland \. Chaplin (6) expressed the view
that a person is expected to anticipate and guard against all
reasonable consequences, but that he is not, by the law of
England, expected to anticipate and guard against that which
no reasonable man would expect, to occur.
Illustrations 2. The following are cases in which the negligence proven wa?
of remote \\t\& not to be the proximate cause of the injury,
negligence,
A railway having unlawfully obstructed a highway crossing by
a train at rest, the plaintiff, in order to avoid the obstruction,
turned into another street, and there was injured by falling ice.
(7) The iaii\vay had permitted a derailed and overturned car
to remain at the side of a highway crossing, and the plaintiff's
horse was frightened thereby. (8) Where the railway obstructed
a highway crossing by a -train, and the plaintiff, in avoiding the
obstruction by driving across the line, at a point where there was
no public crossing, and, consequently, no planking between the
rails, was jolted out of his vehicle and thereby injured. (9) Where
(1) Lord Denman, 2 Q. B. 66 1.
(2) Kolfe B., u M. &W. 115.
(3) Lord Bacon, Max. Reg. I ; G. T. Ry. Co.v. Rosenberger, 9 S. C. R.
311; Metropolitan Ry. Co. r1. Jackson, L. R., 3 App. Cas. 198 ; Canada
Southern Ry. r. Phelps, 14 S. C. R. 132.
(4) M APP- Cas- 222-
(5) And for the same rale in Quebec, se: Rock v. Denis, M. L. R., 4
S. C. 134, 16 R. L. 569.
(6) 5 Ex. 243.
(7) P. C. & St. L. Ry. Co. v. Slaley, 41 Ohio St. 118.
(8) P. S. Ry. v. Taylor. 104 Penn St. 306.
(9) Jackson r. N. C. & St. L. Ry., 13 Lea (Tenn.) 491.
NEGLIGENCE. 365
the carriage in which the passenger was riding was overcrowded,
other persons attempted at a station to force their way into the
carriage, and the plaintiff having risen to prevent their entrance
as the train started, in order to save himself from falling, put his
hand on the edge of the door, where it was caught and crushed
by the act of the railway's servant in closing the door, in per-
formance of his duty, (i) Where the railway set down the plain-
tiff and his wife and children at night in a rain storm, at a station
several miles distant from that to which it had agreed to carry
them, and the wife contracted a severe illness from walking in the
storm. (2)
3. The general rule is that railway companies are liable for sub- Subsequently
sequently developed injuries that cannot be proved to have re- . e.v . Ped
suited from a sufficient independent cause, (3) as, when a
prematuie confinement and birth of a dead child resulted from
fright caused to a pregnant female passenger by a collision. (4)
4. The mere fact that a natural phenomenon has happened Acts of God.
once, when it does not carry with it or import any probability of
a recurrence, does not place it out of the operation of the rule of
law with regard to the act of God. It is not necessary that it
be unique, that it should happen for the first time. It is enough
should that it is extraordinary, and such as could not necessarily
be anticipated. (5) But where there is negligence on the part of
the railway company conducive to the injury in connection with
an extraordinary natural phenomenon, the railway company
would be responsible. (6)
5. The relation between the railway company and the person Acts of agents
who has omitted to perform a particular act of care is immaterial and servants-
where the duty of the company towards the injured person re-
quired it to be performed for his protection : — the liability is deter-
mined by the fact of the omission. (7) But where the injury is
(1) Metropolitan Ry. Co. v. Jackson, 3 App. Cas. 193.
(2) Hobbs v. London & South Western Ry. Co., L. R., 10 Q. B . 1 1 1 ; but
see Toronto Ry. Co. v . Grinsted, 24 S. C. R. 570.
(3) Robinsons. C. P. Ry. Co., M. L. R., 2 Q. B. 25.
(4) Fitzpatrickf. G. W. Ry. Co., 12 U, C. Q. B. 645.
(5) Per Fry J. in N. P. &O. C. M. Co. v. L. & St. K. Docks Co.,
L. R-.gCh. D. 515.
(6) Lambkin v. South Eastern Ry. Co., 5 App. Cas. 352.
(7) Per Blackburn, J., in The Mersey Dock Trustees v. Gibbs, L. R., I
H. L. 115.
366 THE RAILWAY LAW OF CANADA.
caused by an overt act of commission, the liability depends upon
the relationship of the person committing the wrongful act, and
the company, and the application of the maxim, quifacitfer
al turn facit per se. (r) So where a stranger put a fog signal on
the track, and a passenger was injured by an explosion, the com-
pany was held not liable. (2)
But where the proximate cause of the injury is the negligence
of the railway company, the fact that the negligent act of a
third party contributed to the injury will not exempt the com-
pany from responsibility. (3)
Non-perform- 6. Where there is a duty cast upon a railway company, by
:e of statu- statute, the company are responsible for injury directly resulting
from neglect of such duty : — or at least a failure to comply with
the provisions of the statute, or even of a municipal ordinance,
is evidence of negligence ; but where the injuries do not directly
result from neglect of such duty, the company would not be
responsible merely because of such neglect. (4)
As illustrating the application of these principles the fol-
lowing cases may be referred to. At a place which was not a
station nor a highway crossing, theN. B. Railway Company had a
siding for loading lumber delivered from a saw mill and piled
upon a platform. The deceased was at the platform with a
team for the purpose of taking away some lumber, when a train,
coming out of a cutting, frightened the horses, which dragged
the deceased to the main track, where he was killed by the
(1) Reedie v . L. & N. W. Ry. Co., 4 Ex. 243.
(2) Jones r. G. T. R., 45 U. C. Q. B. 193.
(3) Illidge i'. Goodwin, 5 C. & P. 190 ; Lynch v. Nurdin, i Q. B. 29 ;
Daniels v. Potter, 4 C. & P. 262 ; Hughes v. Macfie, 2 H. & C. 744 ; Col-
lins v. M. I,. Commrs, L. R.,4C. P. 279 ; Sneesby v. L. & Y. Ry., L. R., I
D. 42 ; Clark v. Chambers, L. R., 3 Q. B. D 327 ; Smith r. L. & S. W.
Ry., L. R., 5 C. P. 98 ; Burrows v. March, G. & C. Co., L. R., 5 Ex. 67, 7
Ex. 96 : Watling er. Oastter, L. R., 6 Ex. 73.
(4) Williams v. G. W. Ry., L. R.,9Ex. 157; Hayes 7'. M.C. R. R., in
U. S. 228 ; Nitro Phosphate Co. v. L. S. & St. K. Co., L. R., 9 Ch. D. 503 ;
Atkinson v. N. & G. Water Works Co., L. R., 2 Ex. D. 441 ; Hanlon v. S.
B. H. Ry. Co., 129 Mass. 310 ; Kelley z>. H. & St. J. Ry. Co., 13 Am. &
Eng. Ry. Cases 638 ; Meek v. Penna. Co., ibid. 643 ; Great Western Ry.
7. Brown, 3 S. C. R. 159; G. T. R. i'. Rosenberger, 9 S. C. R. 311 ; G.
T. R. v. Sibbald; G. T. R. v. Tremayne, 20 S. C. R. 259 ; Couch v.
Steel, 3 E. & B. 402 ; Blamires v. L. & Y. Ry., L. R., 8 Ex. 283 ; Britton
v. G. W. Cotton Co., L. R., 7 Ex. 130 ; Stapley v. L. B. & S. C. Ry., L.
R., i Ex. 21.
NEGLIGENCE. 367
train. It was held that there was no duty upon the company
under the statute to ring the bell or sound the whistle, or to
take special precautions in approaching or passing the siding.
CO
As another instance of a similar accident may be mentioned
the case of Howe v. Hamilton & North Western Ry. Co.,
(2) where the Court of Appeals in Ontario decided that a rail-
way company was not responsible for an accident caused by a
horse taking fright at an engine standing near a crossing of a
public road, where the company had been empowered by the
corporation to run their railway along the highway, there being
no proof of negligence on the part of the railway company in
the management of the locomotive. And the same doctrine
was upheld in a case in Quebec, (3) where a horse took fright at
the escape of steam from a locomotive standing on one of the
wharves at Quebec, and was killed ; the Court holding that the
escape of steam was without negligence on the part of the driver
or person in charge of the engine, and was a necessary conse-
quence of the exercise of the powers of the railway company, and
the engine being lawfully where it was under the charter of the
Company, and the permission given by the City Council to con-
struct and operate the railway at that point.
But where the railway company had erected posts on their line
at some distance from a highway crossing and bridge, for the pur-
pose of indicating that trains should stop there before approach-
ing the bridge, and a train, instead of stopping at the posts, came
on to within a few yards of the bridge, and the engine remained
there blowing off steam, whereby the plaintiff's horses, attempting
to cross the bridge, were frightened and ran away, the company
were held liable for the ensuing damage. (4)
(1) New Brunswick Ry. Co. v. Vanwart, 17 S. C. R. 35 ; and see C. P.
R. v. Lawson, Supreme Court 1885, Cassels, p. 731 ; G. T. R. v. Boulanger,
Supreme Court 1 886, Cassels, p. 734 ; G. T. R. v. Beckett, 16 S. C. R. 713 ;
Can. Southern Ry. Co. v. Jackson, 17 S. C. R. 316 ; Jones v. G. T. R., 18
S. C. R. 696.
(2) 3 Ont.A. R. 336.
(3) C. P. R.Co. v. Chateauvert, 16 R. L. 28.
(4) C. P. R. Co. v. Lawson, Cass. Dig. 731 ; and see G. T. R. Co. v.
Ro-enburger, 9 S. C. R. 311.
368 THE RAILWAY LAW OF CANADA.
Contributory 7. Where the person injured has contributed to the injury by
negligence. fajiure to exercise ordinary care, to such an extent that the
accident would not otherwise have happened, the railway
company would not be held responsible for such injury, (i)
The obligation to exercise ordinary care by the injured party
depends upon the particular facts and circumstances of each case.
So he is not bound to exercise the same degree of care, when
he has been induced by the action of the company's servants to
act in a manner he would otherwise not have done, a?, for
instance, where the railway company have by their servants in-
vited a passenger to embark on a train when it was not safe to
so embark. (2) Although negligence upon the part of the plain-
tiff may have in fact contributed to his injury, the railway com-
pany will nevertheless be liable, if its servants could by the
exercise of ordinary care have avoided the injury to the plain-
tiff. (3) The plaintiff's contributory negligence must, in order to
bar his recovery, have been a proximate cause of the injury. (4)
Injuries 8. A railway.company is liable for injuries suffered by a person
received while m attempting to escape from a situation of apparent peril, in
danger and which he has been placed by the negligence of the railway com-
inconvenien- pany, whereby he is forced to adopt one of two perilous alter-
natives (5) ; as well as for injuries occasioned to a person in
attempting to avoid a serious inconvenience to him by acting in
a manner not necessarily dangerous ; (6) but not for injury to a
person attempting to avoid a slight inconvenience by a rash and
dangerous action. (7)
Children, etc. 0. Lunatics, idiots and children are to be held only to the
exercise of that degree of care and discretion which ought reason-
ably to be expected of persons of their age and capacity. (8) The
general rule is that it is a question of fact, under the particular
(1) ButteifiekU1. Forrester, n East 60 ; Bridge r. Grand Junction Ry. Co.,
3 M. & W. 244; Moffette v. G. T. R. Co., 16 L. C. R. 231 ; Roy v. G. T.
R. Co., M. L. R., i Q. B-. 353.
(2) Hall 7-. McFadden, Cassel's Digest 724.
(3) Davies v. Mann, lo M. & W. 546 ; Radlay v. L. & N. W. Ry., i App.
Cae. 754.
(4) Witherly r. Regent Canal Co., 12 C. B. N. S. 2.
(5) Jones i'. Boyce, I Starkie 493; Wilson r. Newport Dock Co., L. R.,
i Ex. 177; Adams r. Lan. & Yorkshire Ry. Co., L. R., 4 C. P. 743.
(6) Adams r. Lancashire & Yorkshire Ry. Co., L. R., 4 C. P. 739.
(7) Bramwell, J., in Siner v. G. W. Ry., L. R., 3 Ex. 154; Gee v.
Metropolitan Ry. Co., L. R., 8 Q. B. 161.
(8) Lynch r. Nurdin, I Q. B . 29.
NEGLIGENCE. 369
circumstances of each case, what amount of reason and discre-
tion ought to have been exercised by the injured infant ; (i) but
where the injured person is confessedly of average capacity, and
an infant only in legal theory, it is a question of law for the court
and not one of fact for the jury. (2)
10, When the injured person is an infant of tender years, it is Negligence
held in the United States that it is for the jury and not for the of Parents-
court to determine whether or not the contributory negligence
of the parents or guardians of the infant, in permitting him or
her to be at large, would defeat the action. (3) The question
does not seem to have been directly raised in England, neither
Lynch v. Nurdin, (4) Singleton v. E. C. Ry., (5) Mangan v.
Atterton, (6) nor Waite v. N. E. Ry., (7) definitely decide
the question. But in Quebec the parents' negligence has been
held to preclude recovery of damages. (8)
11. The fact of the intoxication of the injured person at the time Intoxication,
of the injury will not only not relieve him from the legal conse-
quences of his contributory negligence, but also, if his intoxicated
state contributed to the happening of the injury, will be admiss-
ible in evidence as proof of contributory negligence. (9)
4-2. The burden of proof is upon the plaintiff of showing affirm- Burden of
atively negligence upon the part of the railway. (10) And in regard Proof-
to contributory negligence, the English rule is, that if the plaintiffs
case has shown the railway to have been negligent, and the rail-
way relies upon contributory negligence as a defence, the burden
is on the railway of proving that contributory negligence, (n)
(1) Patterson Ry. Accidt. Law, p. 69.
(2) Ib., pp. 70 71. (3) Patterson, p. 90. (4) r Q. B. 29.
(5) 7C.B. N. S. 287. (6) L. R., i Ex. 239. (7) El. Bl. & El. 719.
(8) M. C. P. Ry. Co. r. Dufresne, M. L. R., 7 Q. B. 214.
(9) Patterson, Rly. Accdt. Law 74, and cases there cited.
(10) Patterson, 433, Roy r. G.T. R., M. L. R., r Q. B. 353 ; Moffettew.
G. T. Ry. Co. 16 L. C. R. 231. Falconer v. European & North Amer. Ry.
Co., i Pug 179.
(11) Smith on Negligence — Patterson 435 ; D. W. & W. Ry. v. Slattery,
3 App. Cas. 115$. But in Quebec, see Moffette "'. G. T. R}'. Co., 16 L. C.
R. 231. In Ontario held ; In an action to recover damages for negligence, tried
with a jury, where contributory negligence is set up as a defence, the onus of
proof of the two issues is respectively upon the plaintiff and defendant, and
though the judge may rule negatively that there is no evidence to go to the
jury on either issue, he cannot declare affirmatively that either is proved.
The question of proof is for the jury. Morrow v. Can. Pac. Ry.3 21 Ont.
A. R. 149.
24
370 THE RAILWAY LAW OF CANADA.
Presumption 13. There is a rebuttable presumption of negligence on the part
neg igence. ^ ^ rajjway jn tne case of an injury caused by circumstances
from which may fairly be inferred a non-performance of duty on
the part of the railway, (i)
The Court 14. It is the duty of the judge to determine whether, as to each
and the jury. jssue before the jury, competent evidence has been produced,
which would justify men of reasonable minds in finding a verdict
in favor of the party upon whom rests the burden of proof in
that particular issue. (2)
In Ryder v. Wombwell, (3) Willes, J., said : " There is in
every case a preliminary question which is one of law, viz. :
whether there is any evidence on which the jury could properly
find the question for the party on whom the onus of proof lies.
If there is not, the judge ought to withdraw the question from
the jury, and direct a non-suit if the onus is on the plaintiff, or
direct a verdict for the plaintiff if the onus is on the defendant."
In Bridges v. N. L. Ry., (4) Pollock, B., said, referring to
Ryder v. Womb w ell : "This is a clear expression of the rule,
and it has been generally acquiesced in, and acted upon, and it
follows from it that, although the question of negligence or no
negligence is usually one of pure fact, and, therefore, for the
jury, it is the duty of the judge to keep in view a distinct legal
definition of negligence as applicable to the particular case, and
if the facts proved by the plaintiff do not, whatever view can be
reasonably taken of them, or inference drawn from them by the
jurors, present a hypothesis which comes within that legal defini-
tion, then to withdraw them from their consideration." ^Jack-
son v. Metropolitan Ry., (5) Cairns, L. C., and Lords O'Hagan,
Blackburn and Gordon concurred in holding that Bridges' case
did not have the effect attributed to it in the Court below, of
qualifying the rule in Ryder v. Wombwell, Cairns, L. C., say-
ing : "The judge has a certain duty to discharge, and the jury
(1) Patterson 438, Carpue v. L. & B. Ry., 5 Q. B. 747 ; Scott r-. L. &
St. K. Docks Co., 3 H. & C. 596 ; G. W. Ky. Co. r. Braid, i Moore P.
C. N. S. 101 ; Chalifoux v. C. P. Ry. Co., 22 S. C. R. 721.
(2) G. T. R. v. Wilson, Cassel's Dig., p. 723; Can. All. Ry. Co. v. Mo-
seley, 15 S. C. R. 145.
(3) L. R., 4 Ex. 32. (4) L. R., 7 II. L. 213.
(5) 3 APP- Cas. 193 ; and see Dublin W . & W. Ry. Co. v. Slattery, 3 App.
Cas. 1155.
NEGLIGENCE. 371
" have another and a different duty. The judge has to say
" whether any facts have been established by evidence from which
"negligence may be reasonably inferred; the jurors have to say
" whether from those facts, when submitted to them, negligence
" ought to be inferred."
15, In so far as concerns the duty a person owes of observing The law of
ordinary care and skill in his relations towards others, the law of negHgence in
* ' . the Province
negligence in the Province of Quebec does not materially differ cf Quebec.
from the rule prevailing in the other Provinces, (i)
The diversion between the two systems commences with the
doctrine of contributory negligence. In the earlier cases, before
the Code, the English doctrine of contributory negligence was
fully recognized; but, since the Code has come into force,
especially of late years, there has been a disposition on the part
of the Courts to adopt the jurisprudence of the French Courts in
interpreting the articles of the Code Napoleon on the same sub-
ject. It must be remarked, however, that there is a distinction
to be made between Article 1053 of the Quebec Code and Article
1382 of the Code Napoleon. Article 1053 of the Quebec Code
reads as follows : —
" Every person capable of discerning right from wrong is
responsible for the damage caused by his fault to another, whether
by positive act, imprudence, neglect, or want of skill," whereas,
in the French Code, the governing words " by his fault " are
omitted.
The earliest case of importance in Quebec is that of Moffette v.
Grand Trunk Ry. Co., (2) decided by the Superior Court in
Review in 1866. This was a case of injury at a highway crossing.
The holding there was that the party suing in damages, resulting
from imputed fault or negligence on the part of the defendant,
must himself be without any misconduct or fault, and have used
ordinary care ; and that where an injury has resulted from the
negligence of both parties, more especially if without any wanton
or intentional wrong on the part of either, the action will not lie ;
(i) Stephens v. Chausse, 15 S. . R. 379; G. T. R. v. Boulanger, Cass.
Dig. 734; C. P. R. Co. v. Chalifoux, Cass. Dig. 749; Lambkin v. South
Eastern Ry. Co., 5 App. Cas. 352.
(2) 16 L. C. R. 231.
372 THE RAILWAY LAW OF CANADA.
and that, though the defendant is guilty of negligence causing
damage to the plaintiff, yet, where the plaintiff is guilty of want
of ordinary care, contributing essentially to the injury, he cannot
recover; and that the burden of proof is upon the plaintiff to show
negligence on the part of the defendant and freedom from negli-
gence on his own part.
In 1871, it was held in Maguire v. 7he City of Montreal^ (i)
that a municipal corporation is not responsible for damages
caused by obstructions left on the street, if the party injured
could have avoided the obstruction by the exercise of ordinary
care. And the same principle, that the plaintiff's negligence
would defeat the action, was recognized by the Superior Court in
1874. (2)
In 1877, in Periam v. Dompierre, (3) it was. decided by the
Court of Appeals that, where the plaintiff, a carter, went to load
wood at a wharf in the port of Montreal, where a steamer was in
the act of mooring, and was injured by the snapping of a cable,
he was guilty of contributory negligence in not avoiding the
danger which was evident, and in unnecessarily placing himself
in a position of danger. In a later case, however, where an
accident arose from a similar cause, the Court of Appeals held
that the action would lie, inasmuch as the person injured by the
breaking of the rope had been requested by the ship master to
cast it off the mooring post, and when injured was standing in a
position that was necessary for him to occupy to perform that
act. (4) In this case, however, there was a strong dissent by
Ramsay and Cross, J. J., on the ground that the party injured
was guilty of contributory negligence.
In 1879 it was held by the Court of Review that, in an action
of damages for injury suffered while walking on a railway track
near a crossing, the plaintiff, owing to his contributory negli-
gence, could not recover. (5) This judgment was rendered by
Mackay, J., who quoted from Sherman and Redfield on Negli-
gence, as well as Sourdat on Responsabilite. It is to be noted
that Sourdat, in cases such as these, lays down a doctrine which,
(I) 3 R. L. 450. (2) Ware v. Carsley, 5 R. L. 238.
(3) I L- N- 5-
(4) Corner v. Byrcl, M. L. R., 2 Q. B. 262.
(5) Wilson v. G. T. Ky. Co., 2 L. N. 45.
NEGLIGENCE. 373
to the extent to which it goes, is equivalent to the English rule ;
thus he says : (r)
" If the injured party has himself contributed to his injury by
a personal fault, this is a bar to his action"; but he goes on to
say : " If it consists only in imprudence, it is but fair that it should
set off against a like fault committed by the immediate agent of
the injury."
The decision in the Wilson case was reversed by the Court of
Appeals, (2) on the ground that the accident occurred through
the gross negligence of the company's servants, and this judg-
ment was confirmed by the Supreme Court. (3)
In another case, decided in i88r, (4) it was held that while a
person carrying on a trade is bound to have his premises in a safe
condition for persons coming there by implied invitation to give
him their custom, yet he may relieve himself from damages arising
from the unsafe condition of the premises by showing that there
was contributory negligence on the other side, without which the
accident would not have occurred. And, therefore, where a
valuable horse received an injury while being shod by a farrier,
and it appeared that the accident was caused by the groom in
charge of the animal striking him with a whip, the farrier was
relieved from liability, notwithstanding that the horse was in-
jured partially through the unsafe condition of the floor of the
smithy. This decision was based on the ground that the animal
could not have been injured in the way in which it was, had not
the groom caused it to plunge by striking it.
Under the jurisprudence in France, where the doctrine of com-
parative negligence obtains, it would seem that in such a case
as this the plaintiff would have been entitled to recover, but the
damages would have been reduced or compensated to some
extent by the contributory negligence of the defendant. (5)
Where, however, the negligence of the plaintiff is gross, and
(I) I Sourdat 660. (2) 2 Dor., Q. B. R 131.
(3) Cass. Dig. 722.
(4) Allan v. Mullin 4 L. N. 387.
(5) Cass., 20th Aug., 1879 ; S. 80, I, 55 ; D. 80, I, 15 ; Cass., 5th Aug.,
1879; S. 8l, I, 403 ; D. 81, I, 268 ; Cass., 8th Feb., 1875 > S- 75> T> 204 > D-
75, I, 320 ; Paris, 4th Feb., 1870 ; S. 70, 2, 324 ; D. 70, 2, 1 1 1 ; Paris, 2ist
Dec., 1874 ; D. 76, 2, 72 ; Caen, I7th Mar., l£8o ; S. 80, 2, 176; Nancy,
9th Dec., 1876; Aix, icthjan., 1877; Bordeaux, igth Aug., 1878.
374 THE RAILWAY LAW OF CANADA.
that of the defendant is slight, the former cannot recover even
in France, (i)
The French doctrine of comparative negligence seems to have
been adopted in a Quebec case, decided in the Circuit Court in
1883, (2) m which it was held that where a collision occurred
between two vehicles, and both drivers were in fault, but it ap-
peared that the accident nevertheless might have been averted by
ordinary care on the part of one of the drivers who did not stop
when requested; the latter was held liable in mitigated damages ;
in this case the plaintiff's contributory negligence consisted in
violating the rule of the road by driving on the wrong side, but
it appeared that the defendant could have avoided the accident
by the use of ordinary care.
In a subsequent case decided by the Court of Appeals in 1885,
where the plaintiff was injured on the railway track at a street
crossing; it was held that he must show that the company were
guilty of some fault or negligence, whereby the injury was caused ;
and having attempted to cross, notwithstanding that the warnings
and signals required by the Act had been given, plaintiff could
not recover for consequent injury. (3)
The true rule in such cases, it appears to the author, would
be to ascertain whether the proximate cause of the injury is due
to the negligence of the plaintiff or the defendant; and if it be
ascertained that the proximate cause of the injury is the negli-
gence of the plaintiff, without the occurrence of which he would
not have been injured, it is difficult to see how, under Article 1053,
the defendant could be held liable, even if there was also fault
upon his part, so long as his fault was not the proximate cause
of the injury. (4) The rule thus stated would seem to be in
accordance with the principles deducible from Article 1053 of
the Civil Code ; and, thus stated, would not seem to differ mate-
rially from the English doctrine of contributory negligence,
though that doctrine is not technically known to the Quebec
(1) Cass., 15111 Nov., 1881 ; Sirey 83, i, 402 ; Larombiere vol. 7, p. 560 ;
Sourdat, Responsabiliie, No. 660.
(2) Therrien «'. Morrice, 6 L. N. iln.
C3) Roy v. G. T. R. Co., M. L. R., I Q. B. 353.
(4) C. P. Ry. Co.?-. Cadieux, M. L. U., 3 Q. 15. 315; Allan v. Mer-
chants Marine Ins. Co., 18 R. L. 481 ; Cunie f. Couture, 19 R. L. 443 ;
Sarault r. Viau, n R. L. 217 ; Gagnon rr. Forsyth, 5 R. L. 228.
NEGLIGENCE. 375
law. This view has now been adopted by the Supreme Court in
the case of The Quebec Central Ry. Co. v. Lortie. (i) In this
case the defense was contributory negligence of plaintiff in
alighting from the train, and the court sustained the defense.
(FoTirnier J. Diss).
As was stated by Ramsay, J., in the Court of Appeals, in
Faucher v. North Shore Ry . Co., (2) in discussing the difference
between the Civil and Common Law doctrines, the difference
between them is not so great as is generally supposed ; as the
learned judge there said : " In the French jurisprudence they
" have not precisely in so many words the doctrine of contributory
" negligence which throws the responsibility on the sufferer, but
" they have the idea, as will be seen in -the note in Sirey." (3)
In this case it was held that a line of railway running alongside
of a street, and not divided by any fence from the street, is not
a road on which foot passengers are entitled to the same protec-
tion as if they were walking on the ordinary highway, and a
person who was injured by falling over some planks lying on the
track, which he might have avoided by the exercise of ordinary
care, had no action against the compiny.
The doctrine contended for is supported by the decision of the
Court of Appeals in 1887, in a case of the The Canadian Pacific
Ry. Co. v. Cadieux. (4) The holding there was, that where the
injury was caused by the negligence of the defendant, and there
was negligence also on the part of the plaintiff, it is the duty of
the Court to ascertain the immediate or proximate cause of the
accident, and to condemn its author to pay the damages suffered
by the other party. In that case, however, the Chief Justice (Sir
A. A. Dorion) in delivering judgment said: <; Although the ma-
" jority of the Court is not disposed to alter the judgment of the
" Court below " (in plaintiff's favor), " it is my opinion that where
" both parties are in fault, the damages should be divided bet-
" ween them; this was the rule of the Roman law, as it is that
" now followed in France, and is applied in England in Admiralty
(1) 22 S. C. R. 336, reversing S. C. & Q. B. ; not reported.
(2) 9 L. N. 75, Q. B. Que. 1886.
(;) Sirey Codes Annotes, Article 1382 C. N., No. 533 ; and see Sirey 83,
1,402.
(4) M. L. R., 3 Q. B. 315.
376 THE RAILWAY LAW OF CANADA.
" cases. However, the rule has never been adopted in this coun-
" try, although I think it is the better rule."
Notwithstanding this statement by the learned Chief Justice,
that the French rule of mitigating the damages in cases of com-
mon fault has never been adopted in this country, it was recog-
nized in a former case by the Superior Court in 1886, (i) and in
a later case, (2) decided in 1889 by the Superior Court in Re-
view. There the plaintiffs husband tried to cross a railway track
at intersection with the highway ; he was warned by the gate-
keeper not to cross, but persisted in so doing, the gate was
closed; it was daylight, the engine bell was ringing, and the
approaching train could be seen for three-quarters of a mile
from the point of intersection. The jury found for plaintiff, but
the Court of Review granted a new trial on the ground that the
verdict was against the evidence. The trial judge, however, in
charging the jury, had admitted the principle of mitigated dam-
ages, and his charge seems to have been approved by the full
Court.
In another case in the same year (3) the judges were equally
divided. In that case the plaintiff was driving in a cart with two
men, and was leading two horses behind the cart by a rope or
halter twisted around his thumbs ; two of the defendant's dogs
rushed out, their barking frightened the horses, with the result
that part of the plaintiffs thumb was torn off. In the first
Court, the Judge sitting without a jury found for the plaintiff in
five hundred dollars damages, the amount being reduced to that
sum on the ground of his contributory negligence in leading the
horses in the way in which he did ; but in the Court of Review,
the judgment was reversed, and the action dismissed, Wurtele,
J., dissenting. The Court, however, allowed no costs, in order
to discourage the habit which existed in the country of keeping
vicious dogs, which flew out at persons passing by.
In two more recent cases, however, the principle of reducing
the damages where there is common fault was recognized and
applied in the Superior Court. In one of these cases, that of
(1) Daou?t v . Laverdure, 14 R. L. 279.
(2) Curran v. G. T. Ry. Co., M. L. R., 5 S. C. 251.
(3) Vital.-. Tareault, 34 I. C.J. 26.
NEGLIGENCE. 377
White v. The City of Montreal, (i) the holding was " that a
municipal corporation cannot escape responsibility for the con-
dition of a road rendered dangerous by a sudden thaw and sub-
sequent frost; but where the person injured undertakes to venture
down a steep hill in winter time without creepers and wearing
well worn rubbers, such imprudence on his part having contri-
buted to the accident must go to mitigate the damages." In the
other case decided in the same year, it was held that, where
there is common fault on the part of the master and his servant,
the master is still liable, but the fault of the servant is to be con-
sidered in determining the quantum of damages. (2)
The above summary of the jurisprudence in the Province of
Quebec shows the unsettled state of the law ; and some authori-
tative decision of the highest Courts is needed to set the question
at rest. The decision of the Supreme Court in Quebec Central
Ry. Co. v. Lortie (3) might be regarded as such, but that their
Lordships, with the exception of the dissenting judge (Fournier
J.) and Gwynne J. gave no reasons for allowing the appeal, and
the latter's opinion was based solely on the ground that the
accident was attributable wholly to the plaintiffs' own negligence.
However, a recent decision of the Court of Appeals would
seem to go far in deciding that the negligence of the injured
party, or of the persons responsible for his acts, might defeat the
action. (4) It was there held that, where a child two years of age
accidentally escaped from the surveillance of its mother, and
straying into the street got in the way of an approaching street
car, and was run over and killed, the parents could not recover;
and the Court of Appeals dismissed the action, reversing the
judgment of the Superior Court. (5) In this case it was proved
that the child had strayed once or twice before from its mother's
dwelling into a shop below, and had it not been noticed by per-
sons in the shop, might have wandered into the street and been
(1) Q. R., 2 S. C. 342, 1892.
(2) Pontus dit Clement v. Rousseau, Q. R , I S. C. 263 ; but see Des-
roches v. Gauthier, 5 L. N. 404 ; St. Lawrence Sugar Refining Co. f. Camp-
bell, M. L R, i Q. B. 290; Dominion Oil Cloth Co. v. Coallier, M. L. R., 6
Q.B. 268.
(3) 22 S. C. R. 336.
(4) Montreal City Passenger Cy. Co. v. Dufresne, M. L. R., 7 Q. B , 214.
(5) Ib. reversing M. L. R., 7 S. C. lo.
378 THE RAILWAY LAW OF CANADA.
injured, as it eventually was; it was held, that the parents
should have profited by the warning they had already received,
and were precluded by their negligence from recovering dam-
ages by the death of the child. It is true that in this case the
Court held that there was no negligence on the part of the de-
fendants ; though there was evidence adduced on the part of
the plaintiffs that the car was running too fast, and that the
driver should have seen the child and stopped the car before he
did ; still, it is difficult to see how the Court could have re-
versed the judgment of the trial Judge, who found negligence on
the part of the defendants, except upon the ground of the negli-
gence of the parents.
Injuries to !(}. The next question to be taken up is that of the liability of
persons on the •, • - ... ,
railway track. railwav companies in cases of injuries caused to persons upon
the railway track injured by passing trains. With regard to this
class of accidents, attention must be called to the provision of
the A.ct, which prohibits every person not connected with the
railway or employed by the company from walking along the
track except where it is laid across or along a highway, (i) It
would follow clearly from this, that in the case of a person walk-
ing upon the track, the company would not be liable in damages
to him for injuries received by being struck by a train, or to his
representatives in case of his resulting death, in the absence of
negligence on the part of persons in charge of the train. It
would be difficult to conceive of a case of negligence on the part
of the driver of the engine or other person having control of the
train in such cases. It would of course be the obvious duty of
the engineer seeing a person walking upon the track to sound
the whistle, ring the bell, or make other signal to attract his at-
tention, but it is doubtful whether the omission to give such
signals would render the company liable to such a person un-
lawfully upon the track. If, however, the company's servants in
charge of the train had failed to comply with any of the require-
ments of the Act, the company might be held liable in certain
supposable cases. For instance, it is required by sec. 259,
that no locomotive shall pass through any thickly peopled por-
tion of any city, town or village at a speed greater than six miles
(I) Sec. 273.
NEGLIGENCE. 379
an hour, unless the track is properly fenced. This of course
would mean that the track is fenced on both sides, with proper
gates at street or highway crossings, and in the case where this
provision of the Act was disregarded, and it was shown that the
accident resulted from such disregard of the positive provisions
of the law, the company might be held liable. Again, by sec.
260, it is required that trains moving reversely in any city, town
or village shall have a man on the last car of the train to warn
persons standing upon or crossing the track of the approaching
train. A disregard of this provision of the Act would doubtless
render the company liable in case of an accident resulting in the
injury of any person on the track, (i)
The cases which most frequently occur, however, are those of
accidents at level crossings, where the railway crosses streets or
highways at rail level. The frequency of such crossings in this
country has resulted in large numbers of unfortunate accidents,
nowtithstanding the provisions of the Railway Act intended to
prevent as far as possible their occurrence. By sec. 256 cf
the Act, provisions are made for signals to warn travellers on
the highway of the approach of trains at such crossings. It is
required that the bell of the engine, which by sec. 244 must
be of at least thirty pound weight, shall be rung or the whistle
sounded at the distance of at least eighty rods from every high-
way crossing, and the bell must be kept ringing or the whistle
sounding at short intervals until the engine has crossed the high-
way ; and the same section provides a penalty of eight dollars
for each neglect to comply with its provisions, and further makes
the company liable for all damage sustained by any person by
reason of such neglect. And it is to be noted that one-half of the
penalty and damages are chargeable to the engineer who neglected
to sound the whistle or ring the bell, and may be collected from.
him by the company. Such are the duties cast upon the railway
company by the Act in order to prevent, as far as possible,
such accidents from occurring, in addition to the provisions
of sees. 183 to 191, with reference to the crossing of highways,
and the powers .given to" the railway committee to take meas-
ures of precaution with regard to level crossing?. Where the
(i) See Casey r. C. P. R. Co., 15 O. R. 574.
380 THE RAILWAY LAW OF CANADA.
crossing is especially dangerous, the railway committee may,
if it permits the crossing at a level at all, order the erection of
gates or the posting of watchmen, or other protection ; but un-
less the railway committee so orders, the absence of such pro-
tection would not be an element in deciding upon the liability
of the railway company; (i) their liability in all such cases
would depend first upon the question as to whether they or their
servants were guilty of negligence.
The omission to comply with the statutory regulations as to
the giving of signals is always an important element in determin-
ing the liability in such cases, but there is also a duty cast upon
the traveller using the highway and crossing the railway, which
is of great importance in the decision of such cases. A railway
train cannot be stopped except within a certain distance, accord-
ing to the velocity at which it is being propelled, whereas the
traveller on foot or in a vehicle can easily come to a halt in ap-
proaching a railway crossing. In these cases, it is always the
old question as to whose fault it is that an accident occurs. If
a man, either on foot or driving or riding, goes blindly upon a
railway crossing, without looking either to the right or the left,
and taking no heed, it would be hard to say that the railway
company should be liable, should he be struck by a passing
train. It is the generally accepted principle that the duty cast
upon the traveller in approaching a railway crossing by the high-
way is to make use of his senses of sight and hearing, and both,
to look and listen for an approaching train, — that is to say, that
he is bound to listen for the signals and to look both ways up
and down the track, to see if a train is approaching ; and if he
neglects these precautions and goes blindly upon the track, and
is injured or killed, he himself is the cause of his own misfortune,
and this as has been held even in the case of the omission to
give the signals by the engineer in charge of the engine. (2)
Tnis doctrine was long ago laid down by the Court of Appeals
for Quebec in the case of Moffette v. Tne Grand Trunk Rail-
way Company, (3) and has since been recognized in a large
(1) Per Patterson J. in C. P.Ry. Co. v. Fleming, 22 S. C. R., at p. 44 ;
Stubley v. Lon. & N. W. Ry. Co., L. R., I Ex. 13, 20.
(2) Davey v. London & N. VV. Ry. Co., L. R., 12 Q. B. D. 70.
(3) 16 L. C. R. 231.
NEGLIGENCE. 381
number of decisions of our Courts, and is the universally adopted
doctrine in England and in the United States. It is unnecessary
to go into a discussion of the numerous reported decisions,
though some may be given as examples, for every such case de-
pends upon the slate of facts as disclosed by the evidence, and
there ate few cases which come before our Courts in which
greater conflict of evidence will be found than in cases of this
class. As a rule, a number of witnesses can be brought to swear
that, though within hearing distance, they did not hear the sig-
nals required by the statute ; while the engineer and the fireman
of the train will generally be brought to swear that the signals
were given. In such a case, according to strict rules of evidence,
the positive testimony that the signals were given should out-
weigh the negative evidence of those who did not hear them ;.
but inasmuch as the engineer is statutorily liable for one-half
the penalty and damages, little weight is, as a rule, whether
rightly or wrongly, given by juries or judges to his evidence;
and a like suspicion is generally cast upon the evidence of the
fireman, whose special duty it is to ring the bell, as neglect of
such duty would in most cases lose him his position. If inde-
pendent evidence can be brought, even of one or two witnesses,
to the effect that they heard the signals given, there is no doubt
that the correct rule would be to hold that their affirmative evi-
dence would outweigh the negative testimony of any number of
witnesses who had sworn that they had not heard the signals,
(i) It is evident that the decision of such cases as these depends
more upon questions of evidence than of law, for the principles
of law are clear enough and are the same as govern most cases
of personal injuries, that is to say, that it is purely and simply a
question as to which party is in fault, according to the weight of
the evidence.
As illustrating the practicable application of these principle s,.
some of the reported cases.may be here referred to.
In the case of injuries caused by collisions between the com-
pany's engines and persons crossing the track in carriages or on
foot at the intersection of highways, each is exercising an equal
(i) But, as to setting aside the verdict of a jury on tl.ese ground?, see
Dublin, Wicklovv & \V. Ry. Co. r. Slattery, 3 App. Cas. 1155.
382 THE RAILWAY LAW OF CANADA.
legal right independent of any contract or favor extended by
the one to the other. The duty of each under such conditions
is to use ordinary care in the exercise of his own right to avoid
injury to the other. If, notwithstanding such care by both
parties, an injury happens, it is a misfortune which must be borne
by the sufferer alone, (i)
It is not necessary, in order to recover, that the injury should
have occurred by actual collision with an engine or train cross-
ing a highway. (2) There need be no impact, (3) provided
that the injury is the direct and immediate result of the com-
pany's negligence. So where a horse takes fright at a passing
engine, and, by reason of the defective state of the highway,
damage is sustained, the remedy would be against the party by
whose act or neglect the highway was insecure,- in this case the
railway company. (4) And where the engineer neglects to ring
the bell until just upon the crossing, the sudden ringing of
which frightens the plaintiff's horse, which was not being negli-
gently managed, the company will be held liable. (5) In another
case, a little boy was standing on a snowbank on the side of the
track where it crossed a street. He saw the train approaching,
and when it came opposite to where he was, it gave a jerk, which
frightened him and he slipped down on to the track, where he
was run over by the train and injured. It was held that the
omission to sound the whistle or ring the bell did not impose any
liability on the defendants, as it in no way contributed to the
accident. (6)
The authority to operate a railroad includes the right to
make the noises incident to the movement and working of its
engines, as in the escape of steam and rattling of cars ; and also
(i) Bender v. Canada Southern Ry. Co.., ^7 U. C. Q. B. 25 ; and see
Brand v. Schenectady & T. Ry. Co., 8 Barb 368 ; Motfette v. G. 1'. R , 16
L. C. R. 231.
(2) G. T. R. v. Sibbald, 20 S. C. R. 259; following G. T. R. r.
Rosenberger, 9 S. C. R. 311.
(3) But see Atkinson ». G. T. R., 17 Ont. 220; Rock v. Denis, M. L.
R. 4 S. C. 134, confirmed in review M. L. R. 4 S. C. 356.
(4) G. T. R. T'. Sibbald, 20 S. C. R. 259 ; and see Toms?'. Township of
Whitby, 35 U. C. Q. B. 195 ; 37 U. C. Q. B. loo; Steinhoff?'. Corpora-
tion of Kent, 14 Ont. App. 12.
(5) G. T. R.r. Rosenberger, 9 S. C. R. 311; C. P. R. v. Lawson,
Cassel's Dig. 731 (1893).
(6) Shoebrink r. Can. Atl. Ry. Co., 16 O. R. 515.
NEGLIGENCE. 383
to give the usual and proper admonitions of danger, as in the
sounding of whistles and the ringing of bells. And they are not
liable for injuries resulting from fright caused by such sounds.
But if the injury resulting from the fright would not have hap-
pened but for a breach of duty by the company, it will be liable
for the injury. Thus if it neglected to give the signals prescribed
by statute," and thereby the traveller was brought into close
proximity to the train and his horse became frightened, it is
liable for the consequences, (i)
Mr. Justice Patterson, in a lengthy dissenting opinion in the
case of C. P. Ry. Co. v. Fleming (2) expressed the view that the
English cases, relating to the degree of care to be exercised by
railway companies in passing crossings, were not applicable to
our country, owing to the differences created by our legislation,
especially as to giving warning by bell or whistle. In the court
below, it appears that judgment proceeded on the idea that some
level crossings may be peculiarly dangerous, and that at them the
statutory signals may be insufficient. But the learned judge,
dissenting in the Supreme Court, thought that when the company
had adhered to the requirements of the statute, that was, under
the circumstances of the case, sufficient. The majority of the
Court, however, upheld the decision of the Court below, without
going into detail?. (3) The accident in this case occurred
at a city crossing ; the arm of the gate which barred the crossing
was raised at the time, and could not be brought down owing to
the frost, but the signal man had gone on to the track, and
seeing plaintiff's approach at a dangerous moment, waved his
lantern and shouted to him. The plaintiff said he did not see
the light or hear the bell. The defendants had kept down their
speed to six miles an hour, and had properly rung the bell. The
company were nevertheless held liable.
(1) Pierce, 348 ; Robertson i>. Halifax Coal Co., 20 N. S. 517 ; Norton v.
Ea-tern R. R. Co., 113 Mass. 366 ; Prescott r. Eastern R. R. Co., 113
Mass. 370; Shaw v. Boston & W. R. Co., 8 Gray 45 ; Pollock r-. Eastern
R. Co., 124 Mass. 158; PennR. Co., v. Barnett, 59 Pa. St. 259 ; Phil.W.
& B. R. Co. r. Stinger, 78 Pa. St. 219 ; Hudson v. L. & N. R. Co., 14
Bush 303.
(2) 22 S. C. R. at pp. 43-44 ; and see per Patterson & Rose, J. J., in
Peart v. G. T. R. Co., 10 Ont. A. R. 191.
(3) The Quebec case of G. T. R.v. Godbout, 6 Q. L. R. 63, is to the
same effect.
384 THE RAILWAY LAW OF CANADA.
As to the conflict in the American decisions on this point, Mr.
Patterson in his work, on Railway Accident Law, (i) favors the
view taken by the dissenting judges in the above case.
Sec. 256 of the Railway Act applies to shunting in a station
yard. (2)
It appears that the rule which has prevailed in the State of
Pennsylvania, which requires that a person about to cross the
track must " stop," as well as look, and listen for an approach-
ing train, is not applicable to our country. The circumstances
of every case differ from the circumstances of every other case,
and it is impossible to frame a hard and fast rule applicable to
every case. (3) The traveller is bound to look not only for
regular trains and those stated in time tables, but as well for
extra trains, or any trains beyond time. (4)
Where the defendants were negligent in not fencing a cross-
ing, and thereby disregarded a statutory duty, yet if the proxi-
mate cause of the accident was plaintiff's own negligence, he can-
not recover. (5) In the following case plaintiff showed negli-
gence by driving on to the track without looking for the train,
and while attempting to save his oxen was struck himself. The
bell used by the defendants was an automatic one, but there was
evidence that these bells do not always ring when the train is in
motion, and that it was not ringing at the time of the accident.
It was held, the Chief Justice doubling, that there was evidence
of negligence for the jury. (6) In another case, where the
plaintiff had approached and attempted to cross the track at a
trot, without looking out, though he could have seen along the
(1) p. 162, s. 164.
(2) Hollinger v. C. P. R., 20 Ont. App. 244 ; Casey v. C. P. R., 15
O. R. 574-
(3) Armour, C. J., in Hollinger v. C. P. R., 21 O. R. 710.
(4) Winckler r. Great West. Ry. Co., 18 U. C. C. P. 266 ; Stubley v.
London, etc., Ry. Co., L. R., i Ex. 13 ; Wilcox v. Rome, W. & O. R, Co.,
39 N. Y. 358 362 ; Salter v. Utica & B. R. R. Co., 75 N. Y. 273.
(5) Winckler v. Great West. Ry. Co., 18 U. C. C. P. 251.
(6) Wilton v. Northern W. R. Co., 5 O. R. 490 ; Peart v. G. T. R., lo
Ont. App. 191 ; G. T. R. v. Godbout, 6Q. L. R. 64 ; and see Davey v. Lon-
don & S. W. Ry. Co., L. R. 12 Q.B. D. 70 ; Johnson v. Northern Ry. Co.,
34 U. C. Q. B. 439 ; Blake v. C. P. R., 17 O. R. 177 ; Weir v. C. P. R.,
16 Ont. App. 100 ; Miller v. G. T. R. Co., 25 U. C. C. P. 389 ; Boggs r.
Great West. Ry. Co., 23 U. C. C. P. 573 ; G. T. R. r. Rosenberger, 9 S.
C. R. 311 ; G. T. Ry. Co. r. Beckett, 16 S. C. R. 713.
NEGLIGENCE. 385
line in either direction, it was held he could not recover, the
defendant's position not being affected by their allowing cars to
be on a siding, obstructing the view while the train was passing.
(i) But where a freight car was allowed to remain standing
for an unreasonable time upon the crossing within the limits of
the street, the company will be held liable for damage to a
traveller by reason of his horses becoming frightened and tin
manageable on account of it. (2)
It has been questioned whether an engine and tender con-
stitute a train within sec. 52 of R. S. C., ch. 109, so as to require
a man to be stationed on the rear thereof to warn persons of their
approach ; (3) and an attempt appears to have been made to
cover the point by an amendment to the present Act, (4) which
does not, however, seem to be broad enough, for though the
words " engine and tender " have been added, the provision
still applies only to " ji train of cars moving reversely," with the
engine and tender in the rear of such train. In all these cases,
there is something more to be considered than the value of a pair
of horses, or even than the life of the driver, and that is, the
safety of passengers lawfully using the railway, whose lives are
at least of equal value. (5)
Where a railway company crosses a highway, the duty of the
company is not merely to provide a crossing upon which the rails
do not rise more than one inch above or sink one inch below the
level ; but it is also the company's duty to construct and maintain
such approaches as may be necessary to enable persons using
the highway to avail themselves of the crossing. (6) Therefore,
where a railway company laid a plank 14 feet long outside the
rail, and did not grade the road up to the plank at one end of it,
but left the ends of the ties exposed, it was held that the com-
pany were liable for an accident occurring to the plaintiff's mule,
(1) Johnson v. Northern Ry Co , 34 U. C. Q. B. 432 ; see also Nicholls
v. Great West. Ry. Co., 27 U. C.Q.B. 382; see also Rastiick v. Great West.
Ry. Co., 27 U. C. Q. B. 396; Weir v. C. P. R., i6Ont. App. 100 ; C. P. R.
Co. v. Chateauvert, 16 R. L. 28 (Q. B.) ; Casey v. C. P. R. Co., 15 O. R.
574-
(2) Desrousseau v. Boston & Maine, 34 L. C. J. 252.
(3) Casey v. L. P. R., 15 O. R. 574.
4) 55-56 Vic., cap. 27.
(5) Miller v. G. T. R., 25 U. C. C. P. 396, Hagerty, C. J.
(6) G. T. R.v. Sibbald,2oS. C. R. 259 ; Moggy v, C. P. R., 3 Man. 209.
25
386
THE RAILWAY LAW OF CANADA.
by reason of the whiffletree catching upon one of these ties, (i)
The company having made a crossing of plank 14 feet wide
should have provided for the grading of the approaches being
the same width, and not left them sloping off on each side of
the grading within that width.
The case of Faucher v. North Shore Ry. Co., (2) decided in
the Province of Quebec, shows that the jurisprudence of that pro-
vince is not very clear on this point. The duty of the company
to use the best system of brakes and other appliances for stopp-
ing trains is not confined to the carriage of passengers, but ex-
tends to persons rightfully using or crossing its tracks. (3)
Obstructing ^7, By sec. 273 no person is to walk on the line of railway,
and inter- , . , , ...
rupting free except where same is laid across or along a highway, under a
use of railway, penalty upon summary conviction not exceeding ten dollars. B.,
without the consent of a railway company, took a trolley or hand-
car belonging to them, and ran upon the railway for a number of
miles, at a time when, ordinarily, no train was reasonably to be
expected to be running upon that part of the road. It was held
by the Supreme Court of New Brunswick that he was guilty of
" obstructing and interrupting the free use of the railway" under
sec. 86 of the Dominion Act, 42 Vic., c. 9, though his doing so
did not actually interfere with any train. (4) Foot passengers
are to use foot-bridge if provided, (5) under penalty often dollars
for offending against this provision.
Another species of accident is that of collisions occurring at
the crossing of two railways. There are provisions in the Sta-
tute intended to prevent, as far as possible, the occurrence of
such accidents. By sec. 257 it is provided that at every
point where two railways cross each other at rail level, an offi-
cer must be stationed, and no train is allowed to pass over
such crossing until a signal has been given that the way is clear.
As an additional precaution, by sec. 258, every train or
(1) Moggy v. C. P.R , 3 Man. 209; see also The People v. N. Y. Cent. &
H. P. R. Co., 74 N. Y. 302.
(2) o L. N. 75 (1886), Ramsay J. (Q.B.).
(3) Smith v, N. Y. & H. R. R. Co., 19 N. Y. 127 ; Gagg v, Velter, 41
Ind. 228.
(4) Reg. v. Browneil, 26 N. B. 579.
(5) Sec 274 Ry. Act.
NEGLIGENCE. 387
engine is required to stop for at least one minute before cross-
ing the track of any ether railway, with the exception that where
an interlocking switch and signal system or other device is used,
which, in the opinion of the railway committee, renders it safe
for engines and trains to pass over the crossing without stopping,
the committee may give permission in writing to pass without
stopping, under such regulations as to speed and other matters
as the committee deems proper; but the order giving such per-
mission may be modified or revoked at any time. Any failure on
the part of the railway company to comply with those provisions
of the Act would undoubtedly render them liable for any loss or
damage resulting from an accident occurring in consequence.
It has been held by the Supreme Court, that it is negligent for
an engineer not to apply the air-brakes at a sufficient distance
from the crossing to enable the train to be stopped by hand-
brakes in the case of the air-brakes giving way. (i) In another
case, defendants' railway crossed the track of another railway on
the level, and both were bound by statute to stop at least a min-
ute before crossing, but neither did so. Defendants' line was
signalled as clear, and their train, in which the plaintiff was a
passenger, went on without stopping. The other line was sig-
nalled as not clear, but the train on it ran on, disregarding this
signal, and struck the defendants' train at the crossing, whereby
the plaintiff was injured. If either train had pulled up
about two seconds sooner, the collision would have been avoided.
It was held that the defendants were liable to the plaintiff, for
that their neglect to stop the required time was, as far as the
plaintiff was concerned, a part of the cause of his injury and
sufficiently proximate. (2) And there seems no doubt that as
between themselves the negligence of the defendant company in
not stopping the regulation time before crossing, although the
line was signalled clear, was not sufficient to clear the other
company from the results of its negligence, because by the exer-
cise of care on their part they would have avoided the conse-
quences of the defendants' neglect or carelessness. (3)
With reference to railway accidents generally, attention should
(i) Great Western Railway Company v. Brown, 3 S. C. R. 159.
(12) Graham v. Great Western Railway Company, 41 U. C. Q. B. 324.
(3) Ibid.
388 THE RAILWAY LAW OF CANADA.
be called to sec. 243 of the Act, providing that passenger
trains shall be provided with such known apparatus and arrange-
ments as best afford good and sufficient means of immediate com-
munication between the conductors and the engine drivers while
the trains are in motion, and good and sufficient means of apply-
ing the brakes both to the engine and to the cars, by means of
steam or otherwise, and of disconnecting the engine or any ot the
cars from each other, and also the best apparatus and arrange-
ments for securely fixing the seats or chairs in the cars. And the
company is subject to the orders of the railway committee with
reference to such appliances, and may be compelled to alter them
or supply new ones from time to time. The company are subject
to a penalty of $200 for every day during which they are in
default to comply with the provisions of this section, besides their
liability in damages to all persons who may be- injured in conse-
quence ; and this, notwithstanding any agreement to the contrary
made with any such person.
Injuries to ^ 8. Next, with regard to accidents resulting in injury to em-
employees, ployees of the company. The general rule, in Quebec at least,
would seem to be that the company would be liable towards
employees, on the same principle that they would be liable to
passengers or other persons not in their employ, unless indeed
the injury was the necessary result of one of the risks of employ-
ment which the employee impliedly undertook in entering into
the service of the company, without there being fault or negligence
imputable to the company or their officers, for whom they are
responsible, (i) The Quebec Courts have refused of late years to
adopt the English doctrine that employers are not responsible
for injuries to their servants resulting from the fault or negligence
of fellow-servants in a common employment with them, though in
earlier cases it was distinctly recognized. (2) The English com-
mon law doctrine appears to have been, that where a seivant was
injured through the negligence of a fellow-servant woiking with
him in the same employment, the master was not responsible,
(1) Rich. & Ont. Kav. Co. v. St. Jean, M. L. R., i Q.B. 252 ; St. Law-
rence Supar Refining Co. ?'. Campbell, M. L. R , i Q. B. 290.
(2) Fuller, v. G. T. R. Co., i L. C. L. J. 68, S. C. R. 1865 ; Bourdeau
v. G.T. R. Co., 2 L. C. L. J. 186, S. C. 1866 ; Hall r. Can. Copper &
Sulphur Co., 2 L. N. 245, S. C. R. 1879, confirming.
NEGLIGENCE. 389
providing that he had exercised due care in the selection of the
servant causing the injury, and had not engaged a notoriously
incompetent man. (i) Nice distinctions have been made in
England as to what would constitute common employment as
between different servants working for the same master, and it is
now regulated there by Statute, the general principle being that
to constitute common employment, the servants must be em-
ployed in the same work and of equal grade, and that the
master would be responsible where inju-y was caused to his ser-
vant through the negligence or fault of other servants placed in
authority over him by the master, such asaforeman, superinten-
dent, or otherwise. And this would seem to be in accordance
with principle and common sense ; for while, on the one hand, it
would be hard to say that the master should answer for the con-
sequences of injury caused by one servant to another working
together at the same job, where the fault was practically common
to both, it would be equally unjust to say that the servant should
have no recourse against his master where he had been injured
in obeying the orders of a superior placed in authority over him
by the master. A striking instance might be taken from the case
of brakemen and other men employed upon a train, injured
or killed through the fault or neglect of the despatcher ; though
in some American cases recourse has been denied to employees in
such circumstances, on the ground that the injury was the result
of the negligence of a fellow-servant in a common employment
with them. In the present state of the jurisprudence, the Quebec
Courts refuse to make any distinction between the case of an
accident happening to a servant through the negligence of a fellow-
servant, and an accident happening to a stranger through the
same agency. The courts have refused to go beyond the length
of recognizing that the servant entering upon a dangerous occu-
pation accepts the ordinary risks of it, and cannot recover unless
he can show negligence on the part of his master, as evidenced
(i) Priestley v. Farrell, 3 M. & W. i ; Hodges on Railways 66r ; i Red-
field 386 ; Deverill v. G. T. R. Co., 25 U. C. Q. B. 5 17 ; Plant v. G. T. Ry.
Co, 27 U. C. Q. B. 78 ; Cunningham v.G.T. Ry. Co., 31 U. C. Q. B. 350;
O'Sullivan ?'. Victoria Ry. Co-, 44 U. C. Q. B. 128 ; Macfarlane v Gilmour,
5 O. R. 302 ; Matthews v. Hamilton Powder Co., 14 Ont. A. R. 261 ;
Johnson v. Lindsay, [1891], App. Cas. 371 ; Cameron v. Nystrom [1893],
App. Cas. 308.
390 THE RAILWAY LAW OF CANADA.
either by the fault of some fellow servant or defects in some
machinery, material or otherwise, (i)
" Our law," said Judge Ramsay, in — Tne St. Lawrence Sugar
Refining Co. v. Campbell, (2) "fortunately is unembarrassed by
any artificial jurisprudence disturbing general principles. An
employer is liable for any want of care on his part by which his
servant is injured ; and so, if he engages an unskilled person to
conduct his work, and, owing to the want of skill of the person so
employed, another workman is injured, the employer is respon-
sible, precisely for the same reason he is responsible for defective
machinery, or any other cause of disaster."
In Ontario the effects of the common law doctrine can be
avoided by taking action under the Workmen's Compensation for
Injuries Act, (3) where the injury is caused by the negligence of
any person in the service of the employer who has the charge
or control of any signal-points, locomotive, engine, or train upon
a railway. This Act applies to all railways in the Province,
whether under Provincial or Dominion jurisdiction; — the
Supreme Court deciding that it was not ultra vires in its applica-
tion to the latter railways, because the rule of law which it alters
was a rule of common law in no way dependent on or arising
out of Dominion legislation. (4) In actions under this sub-
section of the Act, it is a fair test of the plaintiffs right to
recover, to consider what would be his right were the employee
causing the accident to be considered the defendant in the place
of the company. (5)
A switch-tender was obliged, in the ordinary discharge of his
duty, to cross a track in the station yard to get to a switch, and
he walked along the ends of the ties which projected some sixteen
inches beyond the rails. While doing so, an engine came behind
him and knocked him down, with his arm under the wheels, and
it was cut off near the shoulder. On the trial of an action against
(1) Rich. & Out. Nav. Co. r. St. Jean, supra, p. 388 ; Campbell r. St.
Lawrence Sugar Rfg. Co., M. L. R., i Q. B. 290; Dominion Oil Cloth Co. v,
Coallier, M. L. R., 6 Q. B. 268 ; Lavoie r. Drapeau, M. L. R., 3 S. C. 304;
Ross r>. Langlois, M. L R., I Q. B. 280; and in Ont. see Hurdman v.
Can. Atlantic Ry. Co., 22 Ont. A. R. 292.
(2) M. L. R., i Q. B., pp. 294 295.
(3) i R. S. O., c. 141, sec. 3, s.s. 5.
(4) Canada Southern Ry. Co. r. Jackson, 17 S. C. R. 316.
(5) Rose, J., in Brunell ?'. C. P. Ry. Co., 150. R. 378.
NEGLIGENCE. 391
the company, in consequence of such injury, the jury found that
there was negligence in the management of the engine in not
ringing the bell, and in going faster than the law allowed. They
also found that the plaintiff could not have avoided the accident
by the exercise of reasonable care. The Supreme Court held
that the Workmen's Compensation for Inj uries Act of Ontario
applied ; and that there was no such negligence on the plaintiff's
part as would relieve the company from liability for injury caused
by the improper conduct of their servants ; and the verdict was
upheld, (i)
Another case under this Act was where the plaintiff's son was
employed as fireman on a locomotive engine, which was in charge
of a driver, plaintiff's son being under his orders. Plaintiff's
son was severely scalded by the bursting of the boiler, from which
death resulted. The accident was apparently caused by the
sudden influx ot cold water into the boiler, which had been
allowed to run too low. There was no evidence to show to whom
the negligence was attributable ; but it was proved that, though
the company held the driver responsible, as regards the engine,
it was the duty of the fireman, for which he also was responsible
to the company, to attend to the supply of water, which was part
of his education to fit him for the superior position of driver ;
and that, from his position, he had greater facilities for opening
the valve than those possessed by the driver ; and from a report
put in by one of the defendant's officials, it appeared that plaintiff's
son had charge of the water at the time of the accident. De-
fendants were held not liable. (2)
One result of taking action under the Workmen's Compensation
for Injury Act is to limit the amount of compensation a work-
man can recover to a sum not exceeding the aggregate of his
average wages for the three years preceding the accident. (3)
19. This is a maxim of the English law borrowed from the Volenti non
Civil Law, and its interpretation, which formerly gave rise to so l
much difficulty, is now considered clearly determined by the deci-
sion of the House of Lords in Smith v. Baker, (4) in so far as its
application to the law of master and servant is concerned.
(1) Canada Southern Ry. Co. v. Jackson, 17 S. C. R. 316.
(2) Brunell v. C. P. Ry. Co., 15 O. R. 375.
(31 Sec. 6. (4) [1891] App. Cas. 325.
392 THE RAILWAY LAW OF CANADA.
The maxim, " Volenti non fit injuria" said Lord Watson
in that case, (i) " originally borrowed from the civil law, has
lost much of its literal significance." Both the French and
the English law started from the principle of this maxim, (2)
as Ramsay J. put it in Richelieu & Ontario Navigation Com-
pany v. St. Jean, (3). "As I understand it the English law,
" though it expressed its rule in a somewhat more absolute form
" than the French law, really aimed at the same result. Both
" the English and the French law started from the principle
" volenti non fit injuria." As far as the Province of Quebec is
concerned, it is clear that the maxim now receives the same
interpretation as that put upon it in Smitn v. Baker. (4)
" Lord Watson in the last mentioned case commented upon
" the maxim thus : — " A free citizen of Rome, - who, in concert
" with another, permitted himself to be sold as a slave, in order
" that he might share in the price, suffered a serious injury; but
" he was, in the strictest sense of the term, volens. '1 he same
" can hardly be said of a slater who is injured by a fall from the
" roof of a house ; although he, too, may be voiens in the sense
" of English law. In its application to questions between the
"' employer and the employed, the maxim, as now used, gener-
" ally imports that the workman had either expressly, or, by
" implication, agreed to take upon himself the risk attendant
" upon the particular work which he was engaged to perform,
" and from which he has suffered injury. The question which
" has most frequently to be considered is not whether he volun-
" tarily and rashly exposed himself to injury, but whether he
" agreed that, if injury should befall him, the risk was to be his
" and not his master's. When, as is commonly the case, his
" acceptance or non-acceptance of the risk is left to implication,
" the workman cannot reasonably be held to have undertaken it
" unless he knew of its existence, and appreciated, or had the
" means of appreciating, its danger. But, assuming that he did
" so, the mere fact of his continuing at work, with such know-
(1) [1891] App. Cas. at p. 355.
(2) Ramsay, J., in Rich. & Out. Nav. Co. v. St. Jean, M. L. R., I Q. B.
261.
(3) Ibid.
(4) See Ib.,and Ross v. Langlois, M. L. R., i Q. B. 280; Desroches v.
Gauthier, 5 L. N. 404 ; Cossette v. Leduc, 6 L. N. 181.
NEGLIGENCE. 393
" ledge and appreciation, will not, in every case, necessarily
" imply his acceptance. Whether it will have that effect or not
" depends to a considerable extent upon the nature of the risk,
" and the workman's connection with it, as well as upon other
" considerations, which must vary according to the circumstances
" of each case." (i) And Lord Herschell distinguished the
risks due to negligence on the part of the master, as follows •
" Whatever the dangers of the employment which the employed
undertakes, amongst them is certainly not to be numbered the
risk of the employer's negligence, and the creation or enhance-
ment of danger thereby engendered." (2) The question, whe-
ther the workman has so undertaken the risk, is, therefore, one
of fact and not of law.
At common law, a master who employs a servant in work of
a dangerous character is bound to take all reasonable precau-
tions for the workman's safety. And such master is no less res-
ponsible to his workmen for personal injuries occasioned by a
defective system of using machinery than for injuries caused by
a defect in the machinery itself. (3) But of course, in order
that the servant may recover for injuries received, there must
be negligence on the part of the master. (4).
So where a switch stand was erected in a railway company's yard
close to the track, and a brakeman in their employ was aware of
its position and proximity to the track ; while a train was passing
through the yard, this brakeman, who should have been on top
of the car, was on the side, holding on to the ladder by which
brakemen mount to the top of a car, and his attention being
drawn towards the end of the train he did not see the switch-
stand, when he was struck by it and thrown under the wheels
of the car, and killed ; — the Court held that there was no evid-
ence of negligence on the part of the defendants; and that
there was such want of care on the part of the deceased as dis-
entitled the plaintiff, his administrator, to recover. (5)
(1) Lord Watson, in Smith z>. Baker, [1891], App. Cas. at p. 355.
(2) Ibid at p. 362 ; and see Hurdinan v. Can. All. Ky. Co., 22 Ont.
A. R. 292.
(3) Smith v. Baker, at p. 353, Lord Watson.
(4) Ibid. 366 ; and see R. & O. Nav. Co. v. St. Jean, M. L. R., i
Q. J.{. 252 ; Himlman v. Can. Atl. Ry. Co., 22 Ont. A. R. 292.
(5) Ryan v. Canada Southern, 10 O. R. 745. As to a latent defect in a
brake, see Badge row v. G. T. Ry. Co., 19 O. R. 191.
394
THE RAILWAY LAW OF CANADA.
Special
provisions
for the pro-
tection of
employees
2O. There are provisions in the Act for the protection of em-
ployees from accidents which might occur in the pursuit of their
dangerous calling. Besides those already referred to with regard
to the height of bridges and tunnels, etc., (i) there are the further
provisions of sec. 262, providing for the packing of frogs at cross-
ings and switches. At every railway crossing where one railway
crosses another, and at every switch, there is a space between
the rails, near where they join, in which it is quite possible for
persons to catch their feet ; and in fact many accidents have re-
sulted from these spaces being left open. The section referred
to provides that these spaces, when leas than five inches in
width, shall be filled with packing up to the under side of the
head of the rail, the packing being by means of wood or metal,
or some other equally substantial and solid material, of not less
than two inches in thickness, which must extend to within one
and one-half inches of the crown of the rails, and must be neatly
fitted so as to come against the web of the rails and be solidly
fastened to the ties. The same provisions are made with regard
to the spaces between any wing rail and any railway frog, and
between any guard rail and the track rail alongside of it, which
must be filled with the same packing at their splayed ends. This
filling, however, may be left out with the permission of the Rail-
way Committee from December to April in each year. The same
section, paragraph 5, has a provision to lessen the danger to
employees in working the engine, and requires that the oil cups,
or other appliances used for oiling the valves of the locomotive,
shall be such that no employee shall be required to go outside
of the cab when the locomotive is in motion for the purpose of
oiling the valves.
At common law, a brakeman receiving injury by coming in
contact with the top of a bridge or tunnel would have no remedy
against the railway company. (2) In Ontario, special provision
is made in a separate Act called the Railway Accident Act, (3)
whereby the employees or their legal representatives in case of
death can recover damages from the railway company for all
(1) Sec. 192.
(2) McLaughlin v. G. T. Ry. Co., 12 O. R. at p. 425; Patterson Ry.
Accident Law, p. 302.
(3) R. S. O., cap. 212, sec. 6.
NEGLIGENCE. 395.
injuries received by such employee owing to the disregard by the
company of the precautions prescribed as necessary by the Act.
In the Dominion Act, a general clause (289) has the same
effect. By this clause the company are liable " to any person "
injured for the full amount of damages sustained to such person
by their omitting to do any matter, act or thing required to be
done by the Act. And it has been decided that the term " any
person injured" includes a servant of the railway company, (i)
In the Ontario Railway Accident Act, certain restrictions are
put upon the right of the employee to recover in such cases. (2)
For instance, in order to recover, the accident must have arisen
from the negligence of the railway company, or owing to their
neglect or to the neglect of anyone entrusted by them with the
duty to discover or remedy the defect occasioning the injury.
He cannot recover where, having known the existence of the
matter, default, or negligence which caused the injury, he did not
communicate his knowledge thereof to the company, unless he
was aware that the railway company already knew of such cause
of injury. Nor can he recover where his negligence contributed
to the accident.
The words " any person " in sec. 289 of the Dominion Act,
although held to include in certain cases employees of the railway
company, yet must not be construed in derogation of the com-
mon law rule as to the non-liability of the master for an injury sus-
tained by one servant through the negligence of a fellow-servant,
unless, in the case of the particular act or omission provided
against, such extended construction is plainly required. (3)
Sub-section 3 of sec. 192 provides that the cost of reconstruct-
ing or altering bridges shall be upon the company, municipality,
or other " owner " thereof, as the case may be ; but it does not
say upon whom falls the obligation of making the alterations or
reconstruction. It may be fairly argued, however, that where
the expense falls there the obligation lies. (4) Also, the com-
pany referred to in the section is the company owning the railway,
and not a lessee or company working the railway under a mere
traffic arrangement. (5)
(i) Le May v, C. P. Ry. Co., 17 Ont. A. R. 293. (2) Sec. 7.
(3) Le May v. C. P. Ry. Co., 17 Ont. App. 301.
(4) McLaughlinz-. G. T. Ry. Co., 12 O. R. 425.
(;;) McLiughlin v. G. T. Ry. Co., 12 O. R., p. 426.
396 THE RAILWAY LAW OF CANADA.
In the case of omission on the part of the company to pack
frogs sufficiently, as required by sec. 262, an employee injured
thereby can recover full damages from the company under sec.
289. (i)
The interpretation to be put on sub-section 3 of the same sec-
tion is that railway companies are not only required to fill with
packing the spaces behind and in front of every railway frog but
the space must be continuously kept filled. So, where a brake-
man was killed by his foot being caught in an unpacked frog, the
evidence showing that the frog had been packed at one time, but
had become worn down ; it was held, that the company were
liable. (2)
Investigation JJl. With reference to accidents on railways, the Act provides
Ilts' for Government investigation in every case. (3) The company are
required, within forty-eight hours of the happening of any accident,
attended with serious personal injury, or whereby any bridge,
culvert, tunnel, etc., of the railway has been so damaged as to be
impassable or unfit for immediate use, to give notice to the
Minister of Railways, under a penalty of $200 for every day's
omission to do so. And, on the recommendation of the Minister,
the Governor in Council 'may appoint a commission to inquire
into the circumstances of the accident; and the commission are
bound to report fully in writing to the Minister, giving their opi-
nion on the matters inquired into.
But the appointment of such a commission and their report,
whatever its nature, will not lessen the liability of the company
in any case, where they have been guilty of negligence or omis-
sion of duty. This is provided for by sec. 288, which also pro-
vides that no inspection had under the Act, and nothing in the
Act contained, and nothing done or ordered or omitted to be
done or ordered under any provisions of the Act, shall relieve
the company from any liability resting upon it by law.
Cattle injured 2/J. As has been pointed out (4) a railway company would not
or killed on ^e responsible for injury to or the killing of cattle which strayed
from their owner's properly on to that of another, and thence
(1) LeMay v. C. P. Ry. Co., 17 Ont. A. R. 293.
(2) Misenei v. Mich. Cent. Ry. Co., 24 O. R. 411.
(3) Sees. 267-270. (4) Supra, p. 261.
NEGLIGENCE. 397
on to the railway, under the provisions of the Acts previous to
that now in force, on the principle that the railway company
was only bound to fence, with regard to the proprietors on whose
land cattle was pastured, the obligation of the railway company
being towards the owner of the land upon which cattle were pas-
tured, (i) This principle has been carried to the extent, that
where the owner of horses occupied one part of a lot, and had
horses pastured on another part not occupied nor belonging to
him, and they escaped thence on to the railway track, the com-
pany would not be liable, as they were not bound towards the
owner to fence across that part of the lot whence the horses
escaped. (2) But it was pointed out that it was a question
whether, under the Act of 1888, which requires the railway com-
pany to fence their property on both sides, without regard to the
request of any proprietor, the same rulings would apply. Under
the Act, before its amendment by 53 Vic., cap. 28, sec. 2, the
company were liable for all damage done to cattle and other
animals injured upon the railway having got there in consequence
of the omission to make or maintain fences or cattle-guards, with
the proviso that such cattle or animals were " not wrongfully on
the railway." Under the Act, as it then stood, it was decided in
the case of Morin v. A. & N. W. Ry. Co., (3) that ihe pro-
visions of the Act of 1888 had not so altered the previous law as
to make the railway company liable in the case where cattle had
got upon the railway from the land of an adjoining proprietor
on to which they had strayed through a defect in the fences
dividing the property from that of the owner of ihe cattle. The
Court there held that these cattle, being trespassers upon the
adjoining land, were wrongfully on the railway —that is to say,
that being wrongfully upon the neighbor's land, and having come
through the railway fence, which was out of repair, they were
(1) Rae v. G. T. Ry. Co., 14 L. C. R. 142 ; Roulx v. G-T. R. Co., ibid
140; Jasmin v. O. & Q. Ry. Co., 6 L. N. 163 ; Fouchon v. O. & Q. Ry.
Co., II I.. N. 74 ; McLennan v. G. T. Ry. Co., 8 U. C. C P. 411 ; Gillis
v. G. W. Ry. Co., 12 U . C. Q. B. 427 ; Wilson v. Northern Ry. Co., 28
U. C. Q. B. 274; Mclntosh v. G. T. Ry. Co., 30 U. C. Q. B. 601 ; Doug-
las v. G. T. Ry. Co., 5 Ont. A. R 585 ; Daniels v. G. T. Ry. Co., 11 Ont..
A. R. 471 ; Davis v. C. P. Ry. Co., 12 Ont. A. R. 724.
(2) Conwiy ^. C. P. R. Co., 12 Ont. A. R. 708.
(3) 12 L. N. 90.
398 THE RAILWAY LAW OF CANADA.
equally wrongfully upon the railway ; and this principle was also
recognized in Ontario, in a similar case, (i) Were it not for the
words " not wrongfully upon the railway," there is little doubt
that the railway company would have been held liable in any case
where cattle had got upon the railway through a defect in the
railway fence, whether they had come directly from the property
belonging to their owner, or had strayed through adjoining pro-
perties.
The Act, as now amended, however, provides that if the com-
pany omits to erect, or, when erected, to maintain such fences, etc.,
and in consequence any animal gets upon the railway from an ad-
joining place where, under the circumstances, it might properly
be, the company will be held liable to the owner of such animal
for all damages in respect of it caused by the company's trains or
engines, etc. ; and no animal allowed bylaw to run at large shall
be held to be improperly on a place adjoining a railway, merely
for the reason that the owner or occupant of such place has not
permitted it to be there. (2)
It is also provided that the company shall not be held liable
for injuries to cattle on their track where they have complied
with all the requirements of the statute, except where such injuries
are caused wilfully or negligently by the company or its em-
ployees. (3)
The duties of the owners of horses, sheep, swine, or other cattle
are, that they shall not allow such cattle to be at large upon any
highway within half a mile of the intersection of such highway
with any railway at rail level, except they be in charge of some
person, to prevent their loitering or stopping at such intersection.
(4) No recovery can be had from the company for the loss of
or injuries to cattle at large, contrary to these provisions, killed
or injured by any train at such point of intersection. (5)
At common law the owner of catrle was bound to keep his
cattle within his own premises ; if they strayed beyond, they were
trespassers, and the duty to maintain fences in repair was only
(1) Mackenz;e v. C. P. Ry. Co., 14 L. N. 410.
(2) 53 Vic., c. 28, s. 2, amending Ry. Act 1888, sec. 194, sub-sec. 3.
(3) Sec. 196.
(4) Sec. 271.
^5) Sec. 271, sub-sec. 3.
NEGLIGENCE. 399
as against the owner of adjoining lands, (i) The leading
English case of Ricketts v. The East and West India Docks, etc.,
Company, (2) decided that the duty imposed upon railway com-
panies by the Railways Clauses Consolidation Act, (3) as to
the making and repairing of fences between their railway and the
adjoining lands, is not more extensive than that imposed upon
ordinary tenants by the common law. This provision of the Act
was substantially the same as those of our several former
Dominion Acts, (4) and the last Act as amended (5) does not
seem to have materially altered the sense of the former ones, for
McMahon, J., held in Duncan v. C. P. R., (6) that the words
"might properly be" are equivalent to " might lawfully be," and
this construction was also adhered to by McDougall, J. C. C., in
the very recent County Court case of Griffith, v. C. P. R. (7)
The cases of McLellan v. G. T. R. ; (8) Giilis v. G. W. R.
Co.; (9) Morin v. At. & N. W. Ry. Co. ; (10) Davis v. C. P.
R. Co. ; (n) Daniels v. G. T. R. ; (12) Mclntosh v. G. T. R.;
(13) Dolrey v. Ontario, Simcoe & Huron Ry.; (14) Conwayv.
Can. Pac. Ry. ; (15) Wilson v. Northern Ry. of Can. ; (16)
McFie v. C. P. R. ; (17) and Douglas v. G. T. R. (18), all show
that under the old Railway Act the company were only bound to
fence as against adjacent land proprietors.
A New Brunswick case (19) is against this contention; but
there the decision is based upon a N. B. statute, which only
enjoined the erection and maintenance of fences where the rail-
way passes through enclosed or improved land, and omitted any
mention as to its relation to the occupiers of adjoining lands. (20)
(1) I Redfield, § 128; Pierce 401 ; Crowe v. Steeper, 46 U. C. Q. B.8y.
(2) 12 C. B. 160. (3) 1845, 8 & 9 Vic , c. 20, s. 68.
(4) Daniels v. G. T. R., 11 Ont. App. 471 ; McLellan v. G. T. R., 8
U. C. C. P. 411; Mclntosh v.'G. T. R., 30 U. C. Q. B. 601.
(5) S3 Vic., c. 28. (6) 21 O. R. 355.
(7) York, Feb. 2, 1892, 15 Leg. News 119.
(8) 8 U. C. C. P. 41 1. (9) 12 U. C. Q. B. 427.
(10) 12 L. N. 89. (II) 12 Ont. App. 724.
(12) ii Ont. App. 471. (13) 30 U. C. Q. B. 601.
(14) ii U. C. Q. B. 600. (15) 7 O. R. 673.
(16) 28 U.C. Q. B. 274. (17) 2 Man. 6.
(18) 5 Ont. Apr. 585.
(19) St. John & Maine Ry. Co. v. Montgomery, 21 N. B. 441.
(20) As to construction of Statutes in the United States regarding fencing,
see Pierce 412.
400 THE RAILWAY LAW OF CANADA.
In the case of one railway running parallel and contiguous to
the line of another, the one on the side next which the cattle
escaped is not liable for injuries thereto happening on the other
line, (i)
The furthest extent perhaps to which the interpretation of our
statute, as it now stands, has gone, is shown in the recent Quebec
case of Bourassa v. G. T. Ry. Co. (2) Some time before the
passing of the train, the plaintiff's nephew had opened the two
gates serving to connect the two parts of plaintiff's property, which
was divided by the railway track. He intended to drive the four
horses from one part of the property to the other ; but after the
horses had passed the first gate, a sudden gust of wind blew the
other gate to, and the horses, not being able to pass through,
dashed along the railway line, and wandered along the track for
some time until killed by a passing train. The Court was of
opinion that the company, under all the circumstances of the
case, should be held responsible. The accident would not have
occurred if the improved Westinghouse brakes had been in use,
as the cars might have been stopped in time. This case would
seem to have been decided upon the general principles of the
law of negligence as to highways. Had the horses b een law
fully on the track at the time, instead of being trespassers, the
company might have owed to the proprietor of the animals
the duty of providing their trains with the most improved system
of brakes then in use. (See Ry. Act, sec. 243). But they owed-
thern no such duty- A railway company, at ihe comimn law, is
under no other or different obligation respecting the premises
occupied by it than any other owner or occupant of real estate.
(3) The first and paramount duty of the company is to their
passengers. They regulate the general speed of their trains
on the assumption that I hey will find the track free from ob-
structions. If they are to bring their train to a standstill every
time they meet with cattle trespassing on the track, they would,
(1) Fouchon v. Ont. & Quebec Ry. Co., or L. N. 74 ; Daoust v. C. P.
R. Co., 15 L. N. 382 ; as to whether a highway running along*ide a railway
can be considered as the land of an adjoining proprietor, see Daniels v. G.
T. Ry. Co, ii Ont. A. R. 471.
(2) 30th Oct., 1893, S. C., Mathieu, J., I M. L. D. & R. 591 ; re-
versed in appeal.
(3) Wood 1543 ; Pierce 40 1, 402 ; Lamberts. G. T. R., 28 L. C. J. at p. 4.
NEGLIGENCE. 401
in effect, be subjecting the management of their road, and the
persons and property in their charge, to the control of wrong-
doers, and holding out a premium to them for wrong-doing, and
greatly increasing the chances of a collision, (i) " Want of
attention amounting to a want of ordinary care is not a good
cause of action, although injury ensues from such want, unless
the person charged with such want of ordinary care had a duty
to the person complaining to use ordinary care in respect of the
matter called in question. Actionable negligence consists in
the neglect of the use of ordinary care or skill towards a per-
son to whom the defendant owes the duty of observing ordinary
care and skill, by which neglect the plaintiff, without contributory
negligence on his part, has suffered injury to his person or pro-
perty." (2) The company is not under an obligation to tres-
passers to use the appliances most efficient for safety. (3) Thus
horses had strayed on to the track, and the person in charge from
whom they had escaped, was driving them towards the crossing,
when a train, which was approaching, drew up for a time, the rear
cars being on the crossing, and then the track being clear, the
engine driver sounded the whistle for brakes off, and proceeded.
The horses had then come nearly abreast of the engine, but
alarmed by the whistle and motion of the train, they turned and
ran towards a bridge. They got upon the bridge before they
could be stopped, when some were injured and others killed. It
was held that the defendants were not liable ; there was no
evidence of negligence in the manner in which the train was
started ; the defendants were using their own property as of
right and in a lawful way, and no duty was cast upon the en-
gineer to wait until the horses had been entirely driven off their
premises. (4)
And the same principle was laid down in another similar case,
where two horses had strayed on to the track, and were running
ahead of the engine. Steam was shut off, speed slackened, and the
whistle blown. On whistling, tiie horses ran off the track, speed
was then increased, they ran on again, and two were caught in a
(1) Hurd v. G. T.R., 15 Ont. A. R. 72 ; Pierce, 406.
(2) Kurd v.G. T. R., 15 Ont. A. R. 69.
(3) McKenna v. New York Cent. & H. R. R. Co., 8 Daly 304.
(4) Hurd v. G. T. R., 15 Ont. A. R. 58.
26
402 THE RAILWAY LAW OF CANADA.
culvert. The engineer again called for brakes, it was a down
grade and the train could not be stopped till the horses were
killed. It was held that the defendants were not liable, (i)
Burden of <J3. The following cases may be cited as showing on whom the
burden of proof is in such cases. Where plaintiff's cattle, having
been in his yard at nine o'clock one evening, were discovered
about ten o'clock the next morning lying wounded alongside the
defendant's line of railway, it was held that it could be fairly
inferred that the injury was caused by an engine or cars running
upon the defendants' railway, and under the control of the defen-
dants' servants. (2) Where a passenger on the train saw the
conductor and some of the other men employed on the train,
examining a mare which was lying at the foot of an embankment
near the railway, and unable to rise without assistance, and early
next morning the plaintiff's mare was found dead near the same
place, with several of her ribs broken, and that she had been
grazing about there the previous evening, and was then unin-
jured; it was held that there was sufficient to leave it to the jury
whether thernare which the conductor of the train was examining
the previous night was the plaintiff's mare. (3) Where a horse
was found dead near the railway track of the defendants, and the
evidence did not disclose in what manner the animal had been
killed, but it appeared the fence adjoining the track was in good
condition and that the gate therein leading to the track was fre-
quently left open by persons passing through, the defendants
were held not liable. (4)
The fact that an accident has occurred is not of itself evi-
dence of negligence ; the plaintiff must give affirmative evidence
of negligence on the part of the railway company, and if the fact
of negligence is left doubtful, the defendants are entitled to a
verdict. (5)
(1) Auger v. Ontario, Simcoe & Huron Ry. Co., 9 U. C. C. P. 164 ; and
see Campbell v. Great Western Ry. Co., 15 U. C. Q. B. 498 ; Connors v.
Great Western Ry. Co., 13 U. C. Q. B. 401 ; Falconer v. European & N.
Amer. Ry. Co., i Pugs 179 ; McFie v. C. P. R , 2 Man. 6.
(2) McMillan v. Man. & N. W. Ry., 4 Man. 220.
(3) N. B. Ry. Co. v. Armstrong, 23 N. B. 193.
(4) Lambeit v. G. T. R. Co., 28 L. C. ]. 3.
(5) Falconer T'. North American Ry. Co., I Pugs. 179; Wood, 1566;
Lambert v. G. T. R., 28 L. C. J. 3 ; Phelps r. Great East. Ry. Co., 21
L T. 443 : Hammock T'. White, u C. B. (N. S.) 588 ; Cornman r. Eastern
Counties Ry. Co., 4 H. & N. 781 ; Tuomey ''. London & Brighton Ry.
Co., 3 C. B. (N. S.) 146.
NEGLIGENCF. 403
Where the fences have been accidentally destroyed by fire after
the track inspector has made his daily inspection, and the fact is
not known until after the injury has been done, the company is
not guilty of negligence, (r)
Where the evidence shows that the stock killed had entered
upon the track on a line offence that was generally insecure, it
is not necessary that it also show that the particular part thereof
over which the stock passed was insecure. (2)
24. This question of the liability of railwiy companies for Cattle at
iniury to cattle or animals on the track arises also in connection 'arfe on t'ie
... . highway.
with accidents occurring through animals getting on to the track
from the highway, and the liability of the company in such cases
is governed by the interpretation to be put upon sec. 271 of The
Railway Act, read in connection with sec. 194.
This provision of The Railway Act has been in force for many
years, and until very recently, the jurisprudence has been uni-
form, that the owner of cattle straying on the highway, and thence
getting on to the track, and being there injured or killed, even
though not at the point of intersection, would have no recourse
against the railway company. For instance, as far back as 1852,
in the case of Rocheleau v. The St. Lawrence & Atlantic Ry.
Co., (3) it was held that a railway company was not liable for
the killing of cattle straying on to the railway from the public
road, and that persons allowing their cattle so to stray were liable
to the company for damage to cars thrown off the track by col-
lision with such animals. 1 he difficulty in the interpretation of
this section of the Act is that the denial of action according to
the literal wording of the Act is only in the case where animals
are killed or injured " at the point of intersection," that is to
say, being on the highway at the point intersected by the rail-
way. According to this section of the Act, cattle or animals on
the railway at the point of intersection, being at large and not in
charge of any person, would be unlawfully or wrongfully upon
the railway, as having come from a place where they might not
properly be ; and if being so unlawfully or wrongfully upon the
(1) Toledo Can. South, etc., R. R. Co. v. Elder, 45 Mich. 329.
(2) Louiseville, etc., R. R. Co. rr. Spain, 6l Ind. 460.
(3)2L. C. R. 337.
404 THE RAILWAY LAW OF CANADA.
railway, they strayed up or down the track in either direction, it
would naturally seem as if they were still wrongfully or unlaw-
fully upon the railway, and that therefore the railway company
would not be liable should they be killed ; for, referring back to
sec. 194, the liability of the company would depend upon two
questions, namely, ist, whether the animals had got on to the
railway in consequence of an omission to make and maintain
cattle guards or fences ; and 2nd, as to whether they had got on
to the railway from a place where they might properly be.
In Ontario, the jurisprudence is settled, that in the case of ani-
mals so straying, the owner has no recourse, whether the cattle
were killed at the point of intersection or not. The following
cases shew how the principle has been there applied. In
Ferris v. The Grand Trunk Ry . Co.. (i) it was held that, where
the plaintiffs horse escaped from a field into a street, within half
a mile of the railway, and thence strayed on to the track, the
company were not responsible, although the horse was not killed
at the very point of intersection. And it is proper to observe that
when this case was decided, the Act did not contain the pro-
viso that the railway company should only be responsible where
the animals were not unlawfully upon the railway. In another
case of Simpson v. The Great Western Ry. Co., (2) the same
principle was applied where a horse had been seized by the sheriff,
and placed in a stable adjoining the public road, from which it
escaped on to the highway, and thence got on to the railway
through defects in the cattle-guards. There it was decided in the
same sense, that the owner could not recover, as the horse was
unlawfully upon the highway, even though it had been placed in
the stable in question without the consent of the owner. The
same principle was affirmed in a later case of Thompson v. The
Grand Trunk Ry. Co., (3) where a horse was killed after hav-
ing strayed from the highway on to the track, and it was held
that the neglect to ring the bell and sound the whistle as required
by the Act on approaching the crossing would not make the com-
pany responsible, on the evident principle that the animal not
being in charge of any person, the omission to give the signals
(i) 16 U. C. Q. B. 474. (2) 17 U. C. Q. B. 57.
(3) iSU.C.Q. B. 92.
NEGLIGENCE, 405
required by the Act would not necessarily have averted the acci-
dent. Following up the principle that the animals must be in
charge of some person, so as to prevent their loitering or stop-
ping on the highway at the intersection of the railway, it was held
in a case of Cooley v. G.T.R. Co., (i) that where horses were
being driven in front of a servant of the owner, but not held
by any b ridle, halter, or otherwise, and got upon the railway
track through the cattle-guards being filled up with snow, the
horses were not in charge of any person within the meaning of
the Act, and that consequently the owner could not recover,
because the servant so driving them had no control over the ani-
mals. This principle was re-affirmed in a later case oiMarkham
v. The Great Western Ry. Co., (2) and has recently been again
upheld in the late case of Daniels v. G.T.R. CV?., (3) where sheep
straying on the highway got through a defective fence on to land
belonging to the railway company adjoining its track and used
as a gravel pit, and thence on to the railway, where they were
killed. The company were held not liable, on the ground that
there was no duty cast upon them as towards the owner of the
sheep to fence their land adjoining the highway.
The Court of Appeals in Quebec at one time departed from
the principles laid down in the Ontario cases and the earlier
Quebec cases, and held in the case of Pontiac Pacific Junction
Ry. Co. v. Brady, (4) that where animals had strayed upon the
railway track from the highway, through defective cattle-guards,
the company were responsible for their being killed by a passing
train, on the ground that the accident was due to the omission of
the railway company to make proper cattle-guards ; and that the
question of their being unlawfully on the highway with regard to
the public did not affect the railway company's responsibility.
The principle upon which this case went was that the animals
not having been killed at the point of intersection, but having
strayed along the track through want of cattle-guards, which they
could not have done if the cattle-guards had been there, their
killing was directly due to the omission of the company to pro-
vide proper cattle-guards. This case was decided under the pro-
(i) 18 U. C. Q. B. 96. (2) 25 U. C. Q. B. 572.
(3) n Ont. A. R. 471. (4) M. L. R., 4 Q.B. 346.
406 THE RAILWAY LAW OF CANADA.
visions of the Consolidated Railway Act of 1879, in force previous
to the present Act; but in a subsequent case, (r) the Superior
Court gave a similar decision under the present Act.
In that case, the learned judge in the Superior Court said : —
" If the colts had been killed at the point of intersection — even if
there without plaintiff's knowledge — I am disposed to think that
the provisions of the Railway Act would have been applicable.
But they were killed some distance down the track, at a place to
which they had gone, in consequence of defendant's neglect to
build a proper fence and cattle guard to prevent them." (2)
This judgment of the Superior Court was, however, reversed
in appeal, on the ground that the horses were unlawfully on
the highway, and, therefore, got on to the railway from a place
where, in the language of the statute, they might not properly be.
(3)
As Weatherbe, J., said in Whitman v. The W. & A. Railway
Co., (4) " The clause of the Act (5) requiring cattle-guards
at crossings cannot be, I am clearly of opinion, construed to
render the company liable at all events, and against owners of
cattle unlawfully on ihe highway."
When cattle are lawfully passing upon the highway, at its in-
tersection with the railway, the company are bound to exercise
ordinary care to prevent injury to them. The company and the
owner are, in such case, each exercising an equal right. The
company are bound to use ordinary care to prevent injuries to
cattle which are rightfully upon private crossings established by
law or agreement ; but the plaintiff's contributory negligence
will defeat the action. (6)
(1) Cross 7'. C. P. Ry. Co., Q. R., 2 S. C. 365.
(2) Cross v. C. P. R. Cj. R. 2 S. C. at p. 368. See, on this point, Phillips
'•. C. P. R., ) Man. 173; citing Thompson v. G. T. R., 37 U. C. Q. B.
40, and others; Duncan v. C. P. R., 15 L. N. 15 ; Nixon v. G. T. R., 16
L. N. 59 ; Groulx v. C. P. R., Q. R., 3 S. C. 81 ; also Desy v. C. P. Ry.
Co. , Q. R.,4 S. C. 184 ; Langevin v. C. P. R., Bourgeois, J., C.Ct., Three
Rivers, I5th March, 1893.
(3) Q. R. 3 Q. B. 170 ; and see Campbell v. G. T. Ry. Co., ibid. p. 570.
(41 6 Russ & Geld. 271.
(5) Ry. Act, Nova Scotia, 1880 ; same as Dominion Act in this respect.
(6) Pierce 405. Bender v. Can. South. Ry., 37 U. C. Q. B. 25, where
the relative rights and duties of railway companies and landowners, with
regard to the use of farm crossings, are considered. Campbell v. Great Western
Ry. Co., 15 U. C. Q. B. 498; Tyson v. Grand Trunk Ry., 20 U. C. Q. B.
256 ; Kenaud v. Great Western Ry. Co., 12 U. C. Q. B. 408.
NEGLIGENCE. 407
The rate of speed, and the necessity there might be of giving
warning of the approach of a locomotive, must depend on the
nature of the crossing, the frequency or infrequency of its use —
the purpose for which it is used, whether only for human beings
or for them and for cattle also, or chiefly for cattle — for, in the
case of cattle, unconscious of the danger, there would be more
difficulty in hurrying them over, especially when many of them
were huddled together, than if human beings were passing — the
formation of the .ground, and. whether from that or from any
other cause, natural or artificial, the place of crossing could be
seen at such a distance from the engine that its speed could be
checked, or be altogether stopped in case of danger being
imminent, (i)
The mere sounding of the whistle, as required by the Act (2)
is not sufficient to exonerate the company from blame ; (3)
and where a train, in approaching a crossing, neglects to give the
proper signals, the company will not be relieved from liability
because the person whose cattle were run over did not take the
best means to avoid the accident, or because his horses were
unmanageable. (4)
26. Any by-law of a municipality intending to alter the com- By-laws
mon law so as to prevent horses, cattle and other animals to run a!lowin£
, . . cattle to run
at large, must be clear and unequivocal in its language as to such at large.
permission. (5) It must be affirmative. (6)
27. The principle of the English law with regard to the liability Damage by
of railway companies for damages caused by sparks emitted by
their engines is very clearly laid down in the recent decision on
this point in the House of Lords. In the case of The Port Glas-
gow & Newark Sailcloth Company v. The Caledonian Railway
(1) Bender v. Can. South. Ry. Co., 37 U. C. Q. B. at p. 32 ; Cliff z/. Mid-
land R. Co., L. R., 5 Q. B. 261; Bilbee v. London, Brighton & South
Coast R., 18 C. B. N. S. 584.
(2) Sec. 256.
(3) Campbell v. Great Western Ry. Co., 15 U. C. Q. B. 498.
(4) Tyson v. G. T. R.. 20 U. C. Q. B. 256.
(5) Jack v. Ontario, Simcoe & Huron Ry. Union Co., 14 U. C. R. 328 ;
Crowe v. Steeper, 46 U. C. R. 87.
(6) Duncan v. C. P. R., 21 O. R. 355 ; Daniels v.G. T. R., u Ont. App.
471.
408 THE RAILWAY LAW OF CANADA.
Company, (i) decided in 1893, tne Lord Chancellor (Lord Hers-
chell) stated that : " It is now well settled law that in order to
" establish a case of liability against a railway company under
" such circumstances, it is essential for the pursuers to establish
" negligence. The railway having the statutory power of running
" along the line with locomotive engines, which in the course of
" their running are apt to discharge sparks, no liability rests
" upon the company merely because of sparks emitted by an
" engine having set fire to adjoining property. But the defenders,
" although possessing this statutory power, are undoubtedly bound
" to exercise it reasonably and properly, and the test, whether
" they exercise this power reasonably and properly, appears to
" me to be this : they are aware that locomotive engines running
" along the line are apt to emit sparks. Knowing this, they are
11 bound to use the best practicable means, according to the
" then state of knowledge, to avoid the emission of sparks which
" may be dangerous to adjoining property ; and if they, knowing
" that the engines are thus liable to discharge sparks, do not adopt
" that reasonable precaution, they are guilty of negligence, and
" cannot defend themselves by relying upon their statutory power.
" About the law as I have expressed it, I do not think there is
" any controversy." In this particular case it was held that the
failure to use spark arresters, the same having gone out of use,
was not, in the absence of proof by the pursuers, evidence of
negligence on the part of the defenders.
In Redfield, on Railways, (2) the English doctrine seems to
have been misunderstood, for after stating it to be " that the
fact of premises being fired by sparks emitted from a passing
engine is prima facie evidence of negligence on the part of
the company," the author proceeds to say : " But in this
" country (America), it must be confessed, the rule of the
" liability of railways for damage done by fire communicated by
11 their engines, is more favorable to the companies than in Eng-
" land. It seems to have been assumed in this country, that
" the business of railways being lawful, no presumption of negli-
(1) 30 Scot. Law Rep. 587. See also Vaughan v. Taff Vale Ry. Co., 5
H. & N. 679.
(2) Edit, of 1887, p. 470, § 125, sec. i.
NEGLIGENCE. 409.
" gence arises from the fact of fire being communicated by their
" engines." (i) This is exactly the present English rule.
The rule itself is very clear, but is difficult of application,
and is sometimes considerably modified in its application to
particular cases. In this country we may begin our consideration
of the jurisprudence with a recent Supreme Court case. (2) There
it was proved that at a certain hour a train passed the property
injured by fire, and two hours afterwards another passed. After
the passage of the latter, fire was discovered on the adjacent
land. It was shown that the engine of the first train was in a
defective state, and likely to throw dangerous sparks, while the
second engine was in good repair. It was held that there was.
sufficient evidence to justify the jury, in finding that the inference
was that in the absence of any evidence that the fire came from
the second engine, it came from the engine out of order. Henry,
J., thought this case presented much difficulty, for the last engine
might possibly have emitted sparks which caused the damage.
If so, the company would not be liable, as that engine was pro-
vided with the usual appliances for preventing the escape of
sparks. (3)
In a former case this Court (4) had to determine another
question, and one of great difficulty. It was held that railway
companies are responsible for all damage arising from their default,
whether such damage is occasioned by fire escaping from the
engine coming directly in contact with and consuming the pro-
perty of third persons, or is caused to the property of such third
persons, by a fire communicated thereto from the property of the
railway company themselves, which had been ignited by fire
escaping from the engine coming directly in contact therewith.
The decisions in the United States are conflicting upon this
point, but Mr. Justice Cooley has expressed himself in favor of
the view held by the majority of the Court in this case. (5)
(1) Ibid. sec. 6.
(2) Can. Ail. Ry.Co. v. Moxley, 15 S. C. R. 145.
(3) And see Glasgow & London Ins. Co. v. C. P. Ry.Co.. 3; L. C. . I.
(4) Canada Southern Ry. Co. v. Phelps, 14 S. C. R. 132.
(5) Cooley. Torts p. 77.* And see Sherman & Redfield on negligence,
4th Ed., pars. 29, 30, 666 ; in Quebec, see Fordyce v. Kearns 15 L. C. j. 80 -r
Dawson v. Trestler, 2 Q. B. R. 115 ; and in France, 5 Holland de Villargnes
Vo. Incendie Nos. 37-39, 6 Toullier No. 286, 1 1 do. Nos. 155-172 ; Dalloz,.
Vo. Dommage- Destruction Nos. 49-51 ; Richard et Maucorps, responsa-
bilite civile en matiere d'mcendie, Nos. 27, 32, 705.
410 THE RAILWAY LAW OF CANADA.
But in a case quite similar (i) to this, where the fire began by
burning some wood in one of the company's wood sheds, which
was also destroyed, and from these by the force of a strong wind
the fire was carried to, and consumed the plaintiffs property,
which was distant about 130 feet from the shed, it was held in
New York that the plaintiff had no cause of action against the
company.
Later, the same court, composed partly of other judges, decided
that where coals were negligently dropped from the company's
engine, which set fire to a tie, from which the fire spread to an
accumulation of weeds, grass and rubbish lying on the road,
and from those spread to a fence, and into plaintiff's woodland,
and burnt and destroyed his trees, the plaintiff was entitled to
recover. (2) But Mr. Justice Henry, in Canada Southern Ry.
Co. v. rhelps, (3) pointed out in his dissenting opinion, that the
later New York case was distinguishable from the other. In that
case, through the negligence of the company, the means for the
spreading of the fire on their own property existed, by which the
fire spread to their fence, and then into the land of the plaintiff.
The spreading of the fire from the tie was therefore from a cause
for which the company could be held answerable. " In the
" present case," he said '' it is not shown, that through the negli-
" gence of the appellants, the means for the spreading of the
" fire from the station house to that of the respondent existed.
*' In fact, the opposite is shown, for there was no combustible
" matter shown to have existed by which the fire could spread
" to the barn and house of the respondent." And Mr. Justice
Gwynne intimated that where a fire spreads from house to house
for a long distance there might be circumstances intervening
which would relieve the company from liability. This would
undoubtedly be so if there were a new and independent cause
intervening, but apparently not otherwise. (4)
(1) Ryan^. The New York Central Ry.Co., 35 N. Y. 209.
(2) Webb^. The Rome, Watertown & Ogdensburg Ry. Co., 49 N. Y.
420; and see Kerr v Penn. Ry. Co., 62 Penn. 353 ; Flannigan v. C. P. Ry.
Co., 27 O. R. 6 ; Ball. v. G. T. Ry. Co., 16 U. C. C. P. 252 ; Smith v. London
& South Western Ry. Co., L. R., 5 C. P. 98, L. R.,6 C. P. 14 ; Hewitt v.
Ont-, Simcoe & Huron Ry. Co., u U. C. Q. B. 604.
(3) 158. C. R. at p. 151.
(4) Whartan, Negligence (Ed. of 1874) § 154 ; Field, Negligence, (Ed.
of 1876) p. 531 in notis.
NEGLIGENCE. 411
The rule in regard to the responsibility in such cases is thus
expressed by Pollock, C. B. : (i) " I am disposed not quite to
" acquiesce to the full extent in the proposition, that a person
" is responsible for all the possible consequences of his negli-
" gence. I wish to guard against laying down the proposition
"so universally ; but of this I am quite clear, that every person
" who does wrong is at least responsible for all the mischievous
" consequence that may reasonably be expected to result, under
" ordinary circumstances, from such misconduct." (2)
As to the question of what is or is not negligence in the run-
ning of the engine, it was held in the Supreme Court (3) that the
use of wood for fuel was not in itself evidence of negligence. In
a recent English case (4) plaintiffs cart with a load of straw was
passing over a bridge, when the defendants' locomotive under-
neath emitted a number of sparks, with the result that the straw
blazed up, and so rapid was the destruction of the straw and cart
that the horses were barely saved. The judge instructed the
jury that the construction of the engine not having been ques-
tioned, there was no liability on thepartof the defendants, unless
the plaintiff could show there had been carelessness in working
the engine. The jury, however, found for the plaintiff for the
full amount claimed.
Where a train was allowed to run for ninety miles without the
ash-pan having been emptied, and ignited substances were found
upon an adjacent manure heap which were too large to pass
through the net of a smoke stack, it was held that there was
sufficient evidence to go to the jury to find whether the fire
escaped because the pan was full, and that the result might with
reasonable care have been avoided. (5)
The question of the contributory negligence of the plaintiff
in regard to the object burned is also a subject possessing con-
siderable difficulty.
Chief Justice Sir J. W. Ritchie, in the case of The New Bruns-
wick Ry. Co. v. Robinson, (6) expressed the view that if the
(1) Rigby v. Hewitt, Exch. 240.
(2) See also Pennsylvania Ry. Co. v. Kerr, 62 Penn. 353 ; Morrison v.
Davis & Co., 8 Hanis 171 ; Kellogg v . Chicago & N. R. Co., 26 \Vis. 223.
(3) New Brunswick Ry. Co. v. Robinson, H S. C. R. 688.
(4) Kimmer v. London & North Western Ry. Co., 15 L. N. 366.
(5) McGibbon t>. Northern Ry. Co., 14 Out. A. R. 91.
(6) ii S. C. R. 688.
412 THE RAILWAY LAW OF CANADA.
plaintiff chooses to place in his barn combustible materials, and
to leave it in such a condition that such combustible materials
are exposed to sparks from the engine, provided with all the
usual and requisite appliances for preventing the escape of
sparks, and if an accidental spark should ignite such combustible
material and cause the destruction of the barn and its contents,
the owner must submit to the risk, as a consequence of the legis-
lature having permitted the use of a dangerous agent. There
are reciprocal duties imposed as well on those who have combus-
tible material near to the railway, as on the railway company to
use reasonable care and precaution. The correct rule was laid
down in Collins v. N. Y. Central & Hudson River Ry. Co., (i)
viz. : " that one whose property is exposed to risk or injury from
or by reason of its location, as where it is situated in a position
of constant exposure to fire on the side of a railroad, must use
such care as prudence would dictate in view of the unavoidable
perils to which it is subjected."
Mr. Justice Strong, however, dissented from this view, and re-
ferred to two American cases in support. ( 2) The other judge
expressed no opinion. And in a later New Brunswick case, (3)
where the facts were very similar, it was held that where the sills
of a barn rested on blocks and were about eight inches above the
ground on which the hay rested, so that part of it was exposed
below the sills, this was not evidence of contributory negligence
on the part of plaintiff. From this opinion the Chief Justice and
Wetmore, J., dissented, agreeing with Ritchie, C. J.. in New
Brunswick Ry. v. Robinson. But in a recent Scotch case, (4)
where a flax store, situated in close proximity to a railway, had no
windows, and when light was required it was obtained by open-
ing the doors of the store, and on one occasion when two doors
were open, one on the next side to, and one on the side away
from, the railway, a spark from a passing engine was blown in at
the former, and falling among some loose flax, caused a fire,
which destroyed the store ;— it was held that the plaintiffs were
(i) 5 Hun 503.
2) Fero v. Buffalo, etc., Ry. Co., 22 N.Y. 209 ; Grand Trunk Ry. Co. ?\
Richardson, 91 U. 8.454-473.
(3) Campbell v. McGregor, 29 N. 13. 644 (1889).
(4) Port Glasgow Sailcloih Co. T. Caledonian Ry. Co., 29 Scot.
Rep. 577 (1893).
NEGLIGENCE. 413
not barred by contributory negligence from claiming damages.
(I)
As to whether the Statute 14 Geo. 3, ch. 78, sec. 86, in
force in Ontario, enacting that " No action, suit or process shall
be had, maintained or presented against any person in whose
house, chamber, stable, barn, or other building, or on whose
estate any fire shall accidentally begin, nor shall any recompense
be made by such person for any damage suffered thereby, any
law, usage or custom to the contrary notwithstanding" —
applies in these cases, it was held in The Canada Southern Rail-
way Company v. Phelps, (2) that it in no way relieved persons
from liability for their own negligence or from responsibility for
the negligence of their servants.
Where a railway company incorporated under the laws of
Ontario, granted running powers over their line to a foreign
company, it was recently held by the court of Appeals for that
province, that the Ontario company could not, without legisla-
tive sanction, confer upon such foreign company the immunities
and privileges they possessed, and the foreign company would
be subject to the common law liability imposed upon a person
using a dangerous and fire emitting machine, and held liable in
damages without proof of negligence. (3)
27. In the Canada Atlantic Ry. Co. v. Moxley, (4) it was Evidence in
held (Henry, J., dissenting) that the locomotive superintendent such cases
and locomotive fireman of a railway company are " officers of the
corporation," who may be examined as provided in R. S. O.
(1877), c. 50, s. 136, and the evidence of such officers as to the
condition of the respective engines, and the difference as to
danger from fire between a wood-burning and a coal-burning
engine, taken under said section, was properly admitted in the
trial of this cause; and certain books of the company containing
(1) This case went to the House of Lords, and it was there decided that
the company was not negligent, 30 Scot. Law Rep. 587 ; and see Can. Central
Ry. Co. v. McLaren, 8 Ont. A. R. 564, Confirmed in P. C., Robinson's
Dig. 1882-1884, pp. 682-683; Hill v. Ontario Simcoe & Huron Ry. Co.. is
U. C. Q. B. 503.
(2) id S. C. R. 132.
(3) Welleans v. Can. Southern Ry. Co., 21 Ont. A. R. 297.
(4) 15 S. C. R. 146; see also McLaren v. Can. Cent. Ry. Co., 8 Ont. A.
R. 564.
414 'I1 HE RAILWAY LAW OF CANADA.
statements of repairs required on the engines in question, among
others, were also properly admitted in evidence without calling
the persons by whom the entries were made.
The rule in 28. The jurisprudence in Quebec, though showing a consider-
Quebec as to a|3je variance, has a tendency to reject the principle of the English
fire. law that railway companies, being authorized by the Legisla-
ture to use locomotive engines, are not liable for damage caused
by fire from sparks issuing from the same, provided they have
taken every precaution in their power, and adopted every means
which science can suggest, to prevent injury from fire, and are
not guilty of negligence in the management of the engine, (i)
The Quebec Courts have leaned rather towards the doctrine
adopted in France, that railway companies are responsible for
damage from fire caused by their engines, notwithstanding that
every possible precaution and device has been resorted to to
prevent the issue of sparks ; — in other words, whether there is
negligence on the part of the railway company or not. (2)
The earliest case of importance bearing upon this question is
that of the Quebec fire Assurance Company v. St. Louis ; (3)
where the Privy Council, on an appeal from Quebec, held the
proprietor of a steamboat responsible for damage resulting from
sparks escaping from the smoke-stack of the steamboat, on the
ground that the pipe was not provided with a proper screen or
spark arrester. This decision would appear to place the lia-
bility upon the question as to whether there was negligence or
not, apart fiom any question as to the immunity of railway
companies exercising their statutory powers without negligence.
This decision, however, does not seem to have had much weight
with Quebec Courts, as will be seen from the following review of
the jurisprudence : —
In 1882, in a case of Jodoin v. The South Eastern Railway
Company, (4) the Superior Court held, that notwithstanding that
the company were authorized to work the railway by public
statute of the province, and had taken all possible precautions
(1) Vatighan r. Taff Vale Railway Co., 5 H. & N. 679 ; see supra pp.
85, 187,
(2) Ualloz 1859-2-187 ; 2 Sourd at No. 1054 ; 12 Demolomhe p. 142;
6 Laurent Nos. 148 and 149 ; 2 Aubry & Rau, No. 194 ; Palaa des Che. de
Fer, Nos. 602, 603 .
(3) 7 Moore 286. (4) M L. R. I S. C. 316.
NEGLIGENCE. 415,
by providing the locomotive pipe with an approved appliance
for preventing the escape of sparks, they were liable for the dam-
age occasioned by the sparks escaping from the pipe; the Court
citing from Dalloz, (i) and adopting the French rule as there ex-
pressed, and holding that it was applicable under Art. 1053 of the
Quebec Civil Code. The reasoning by which this holding was
arrived at is not very evident, inasmuch as the liability under
Art. 1053 ^s dearly placed upon the basis of fault or negligence.
This decision of the Superior Court was followed by another
of the Court of Appeals, in the case of the Grand Trunk Rail-
way Company v. Meegan (2) decided in 1885. In that case,
Cross, J., rendering the judgment of the Court, after referring to
the company's defence that they had adopted every precaution
by known appliances to prevent the escape of sparks, and that,
consequently, they were not liable, said : "THs raises a very im-
" portant question, and probably by the rule of the English Law
" applicable to the case, the company might be held excused, but
" I believe our rule has always been different. Our courts have
" continually held that a party exercising a dangerous occupation
" is responsible to his neighbors for the damage that may be
" caused to them by the hazardous nature of such occupation."
The only case cited by the learned judge was that of The Quebec
Fire Assurance Company v. St. Louis, (3) which certainly did
not hold the defendant liable on the grounds stated by the
learned judge, but distinctly held that his liability was on account
of negligence. The learned judge also referred to the casein
Dalloz ; (4) but it should be remarked that the railway legislation
in France is very different from that of this country ; and there is
a provision in their statute law which has been held to have the
effect of making railway companies liable for all damage which
they may commit in the operation of the railway, whether
operated negligently or not. (5)
In a subsequent case of Dussault v. The North Shore Rail-
way Company, (6) decided in 1886, the Court of Appeals held
that a railway company are responsible for damages caused by
fire started by sparks escaping from the smoke stack of one of.
(i) 1859-2-187. (2) M. L. R., i Q. B. 364.
(3) Ubi supra. (4) 1859-2-187.
(5) 2 Sourdat No. 1054. (6) 14 R. L. 207 ; 12 Q. L. R. 50.
4i 6 THE RAILWAY LAW OF CANADA.
their engines, when by the closing of the damper the emission of
sparks could have been prevented, thus apparently putting the
liability on the ground of negligence.
In 1889, however, Mr. Justice Andrews, in the Superior Court,
in the case of Leonard \. The Canadian Pacific Railway Com-
pany, (i) returned to the doctrine of the French law, and dis-
tinguished the case Q{ Robinson v. The New Brunswick Railway
Company. (2) The learned judge said: (3) " If it be admitted
" that the defendants have used the best and safest engines ob-
" tainable, I think they are nevertheless liable,, on the same prin-
" ciple on which anyone exercising a calling dangerous to his
" neighbors would be condemned to repair any damage he
*' might thereby cause, even though his calling were lawful, and
'" he had used his best endeavors to render it harmless."
In the same year (1889), the Court of Appeals, in the case of
The North Shore Railway Company v. Me Willie, (4) rendered
-a decision which appears to have been based purely upon a
question of fact as to whether the fire had been caused by sparks
coming from the locomotive ; and the question at issue is only in-
cidentally touched upon by Church, J, in his opinion, where he
says : (5) " The defendants also seek to avoid responsibility on
'" the ground that their locomotive was protected as far as possible,
" and that the screen was in good order, they bringing into
" Court two or three experts to say they never knew a locomo-
" tive so protected to cause damage; but the testimony of these
" men is overborne by the direct and positive evidence of the
" persons who witnessed the whole occurrence, and who prove
" that the fire was caused by the sparks from the train. We think,
" therefore, the company was properly held responsible." The
judgment of the Court below, however, so confirmed, was based
upon the rule laid down in the case of The Grand Trunk Rail-
way Company v. Meegan. (6) The learned judge in the Superior
Court, after referring to the French law with regard to the ob-
ligation to use one's property so as not to do injury to one's
neighbor, expressed himself as follows : (translated) " Without
" doubt the operation of railways is in the public interest, and their
(i) 15 Q. L. R. 93. (2) ii S. C. R.688.
(3) 15 Q. L. R., at page 95. (4) M. L. R., 5 Q. B. 122.
(5) M. L. R. 5 Q. B., at page 142 (6) M. L. R., i Q. B. 364.
NEGLIGENCE. 417
" neighbors are obliged to suffer th > ordinary inconveniences
" resulting therefrom, such as the ordinary noises which are
" made by passing locomotives and trains, etc.,, but that does not
" go so far as to render railway companies exempt from respon-
" sibility for fire caused by sparks. This is not an ordinary in-
" convenience resulting from the operation of railways." (i)
This case went to the Supreme Court, (2) where the judgment of
the Court of Appeals was confirmed on the question of fact; no
reference being made by any of their Lordships to the question
under discussion, though the holding of the case as reported is
that there was sufficient evidence of negligence to make the rail-
way company responsible for the damage caus:d by the fire.
In a later case, in 1891, the Court of Appeals of Quebec again
held a rnlway company liable under like circumstances ; (3) and
in a still more recent case, in 1893, (4) the same court dismissed
the action against the railway company, on the ground that the
proof did not establish that the fire was started by sparks from
the locomotive. The formal judgment of the Court, however,
gives as a reason for the dismissal of the action, that the proof
did not shew that the fire resulted from any act, imprudence, or
want of skill on the part of the railway company ; — quoting the
very langunge of Art, 1053 of the Quebec Civil Code.
The most recent decision on this point is that of the Superior
Court in the case of Senesac v. The Central Vermont Railway
Company, (5) where the action was dismissed, on the ground that
there was no proof of fault or negligence on the part of the rail-
way company. It seems to the author that this decision enun-
ciates the true doctrine which should be adopted in such cases,
and that the railway company's liability must depend upon the
presence or absence of negligence in the operation of the rail-
way ; they being held to the strictest possible diligence, consistent
with the practical operation of the railway, in the exercise of their
statutory powers ; and that so long as these powers are exercised
without negligence, and with all due and proper precautions, the
company should not be held liable. (6)
(i) M. L. R., 5 Q. B. at page 150. (2) 178. C. R. 511.
(3) Cie de Ch. de Fer All. au N. O. v. Betournay, 21 R. L. 191.
(4) Central Vermont Railway Company v. Montmagny Insurance Com-
pany, Q. R. 2, Q. B. 450
(5) S. C. Quebec, March, 1895 ; confirmed in Review (Jette" J. dissent-
ing), 291!: February, 1896. (6) See Supra, pp. 85, 187 and 407.
27
CHAPTER XII.
THE MEASURE OF DAMAGES.
In'general.
Contract of
carriage of
1 . In general.
2 . Contract of ca rriage of goods .
3. Breach of contract .
4 . Injuries to persons.
5 . Injury to cattle.
1. The general doctrine as to the measure of damages in cases
of contract is summarily comprehended in a few pages ofPot/iieri
on Obligations, (i)
This summary statement is referred to in most of the leading
cases, and forms, confessedly, the basis of the' jurisprudence of
England and America upon the subject. Its substance is found
in Articles 1073, 1074 et seq. of the Quebec Civil Code and
Article 1928 of the Louisiana Civil Code of 1826. It is said by
Scdgwick, on the Measure of Damages, (2) to be " the clearest
and most definite rule that can be framed in this perplexing
matter." The above articles of the Quebec Code read as fol-
lows: — Art. 1073. — "The damages due to the creditor are, in
general, the amount of the loss that he has sustained and of the
profit of which he has been deprived." Art. 1074. — " The debtor
is liable only for the damages which have been foreseen or might
have been foreseen at the time of contracting the obligation ;
when his breach of it is not accompanied by fraud."
2. The amount of damages recoverable from a carrier is such
as would naturally result from the breach of the contract, whether
as the ordinary consequence of such a breach, or as a con-
sequence which may, under the circumstances, be presumed to
have been in the contemplation of both parties at the time they
made the contract as the probable result of the breach of it. (3)
(1) Nos. 159-160 et seq. ; and see Behan v. Grand Trunk Ry. Co., II Q.
L. R. 60.
(2) Vol. I, p. 67.
(3) Hadley v. Baxendale, 9 Exch. 341, 23 L. J. Ex. 179 ; Hornet. Mid-
land Ry. Co., L. R., 8 C. P. 131, 42 L. J. C. P. 59; Wilson v. Lan. &
York Ry. Co., 9 C. B. N. S. 632 ; Jameson v. Midland Ry. Co., 50 L. T.
426 ; Redmayne v. G. W. Ry. Co., L. R., I C. P. 329 ; in the United States,
see Redfield (Carriers, § 32), and Hutchinson, § 772.
THE MEASURE OF DAMAGES. 419
A carrier's contract should be considered, in respect to dam
ages, without reference to decisions upon other kinds of con-
tracts supposed to be similar. Contracts to build a boat, to
repair machinery, and to carry a shipment, differ absolutely from
one another on the very important point of implied notice. He
who repairs machinery knows, or should know, its probable use;
but a carrier may take a shaft across the country without knowing
whether it is intended for a steamship or a sugar house.
The point to be examined in each case is really this : — What
was the tacit agreement between the parties at the time of the
contract, as regards damages claimed? (i)
Where, from the nature and description of the goods, it is
evident that they are intended to be resold at a profit, it will be
considered that there has been an implied agreement between
the parties that if the carrier, by non-dslivery, deprive the shippers
of these profits, he will be liable in damages for the loss. Such
damages would be those which, according to the principle above
laid down, either were foreseen or might have been foreseen. (2)
But damages for loss of custom arising from such non delivery
are too remote to be held to have been in the contemplation of
the parties. (3) This is undoubtedly in accordance with the rule
of the English law. Thus, Mayne, in his treatise on Damages,
says : " But profits and advantages, which are the direct imme-
diate fruits of the contract entered into between the parties, stand
upon a different footing. These are part and parcel of the con-
tract itself, entering into and constituting a portion of its very
elements, something stipulated for, the right to the enjoyment of
which is just as clear and plain as the fulfillment of any other
stipulation. They are presumed to have been taken into con-
sideration, and deliberated upon before the contract was made,
and formed, perhaps, the only inducement to the arrangement. (4)
The British Columbia case of Hamilton v. Hudson Bay Co.,
and Jrving & Briggs, (5) would appear to be based upon a mis-
(1) 24 Demolombe, p. 566.
(2) Behan v. Grand Trunk Ry. Co., S. C. 1885, II Q. L. R. 60, and
English and French authorities there cited.
(3) Behan v. Grand Trunk Ry. Co., S. C. 1885, n Q. L. R. 60, and
English and French authorities there cited.
(4) At p. 43; and see The Parana, Ct App., 1877, L. R., 2 Prob. Div.
ir8 ; Masterton 7'. Mayor of Brooklyn, 7 Hill 61. Adopted by Mayne in the
passage above quoted.
(5) Part 2, Vol. 2, B. C. Law Rep., p. 176.
420 THE RAILWAY LAW OF CANADA.
conception of the case of British Columbia Saw Mill Co. v.
Nettleship, decided in England in 1868. (i) The Court, in the
first named case, refused to allow a trader the expected profits on
goods shipped by him, which were destroyed, and held that such
expected profits were too remote to be included in a verdict, and
that, when there has been indefinite loss or damage from delay,
beyond the invoice or actual value of the goods lost or mislaid,
the reasonable and proper measure of compensation is always
held to be attained by giving interest on the actual value, citing
British Columbia Saw Mill Co. v. Nettleship. (2) This case
arose through a breach of contract on the part of a carrier in not
delivering a box of machinery for a mill, thus causing a long
delay in replacing it. The damages claimed were for the stoppage
of the works during the time that the whole machinery remained
useless by reason of the absence of the missing box. The Court
said that, although the carrier certainly knew that the box con-
tained part of the machinery, yet it was not shewn that he knew
it contained a material part, and that without it none of the
machinery could be put together. If he had no such knowledge,
it could not be said that he intended to become responsible for
the consequences which were sought to be imposed upon him.
Such damages must be purely speculative damages. (3) And,
again, the carrier is not to be made liable for damages beyond
what may fairly be presumed to have been contemplated by the
parties at the time of entering into the contract. (4) But the case
of Hamilton \ . Hudson's Bay Co. et al. (5) belongs to the same
class of cases as Behan v. G. T. Ry. Co., (6) viz., the shipping
of goods by a trader to be sold at a profit, and, in such cases, as
a general rule, the measure of the carrier's liability is the market
value of the shipment at its destination, computed at the time
when it should have been delivered, less transportation charges,
with interest. (7)
By the destination is meant the terminus of the road, and not
(r) L. K., 3 C. P. 499. (2) L. R., 3 C. P. 499.
(3) Jb-, at p. 506. (4) Ib., at p. 505.
(5) Part 2, Vol. 2, B. C. Rep. 176.
(6) Supra, p. 41 c.
(7) See the leading case in the United States, Gillingham T, Dempsey, 12
S. & R. 183, Penn. (1824;, and authorities there cited ; and Forbes v. Bos-
ton, etc., R. R. Co., 133 Mass. 154.
THE MEASURE OF DAMAGES. 421
the final destination which the shipper may intend the freight to
reach, (i)
Where the delivery of a box of trees was delayed by the carrier,
it was held that the plaintiffs were not entitled to recover for any
supposed damage or injury to business, or business reputation,
nor for expenses incurred by them in taking the trees round to
their customers, since they would have to do that any way. If
they could not sell the trees at all by reason of the delay, the loss
would be the value of the trees. But if the person who had given
orders for the trees took them, after all, at a reduced price, then
the difference between the price agreed for originally and that
afterwards accepted may form the maximum measure of damages.
(*)
The necessary expenses to which the owner of goods is put in
consequence of the carrier's delay to fulfill his contract ate
recoverable as damages. (3) But, in a Quebec case, it was held
that the owner of baggage mislaid by a railway company could
not recover for expenses incurred by him in looking after the
baggage, the measure of damages being the value of goods lost.
(4)
Contracts of shippers with the consignee or other persons, of
which the carrier is not notified at the time of the shipment, are
not to be considered in the calculation of damages as against
the carrier. (5) But where there is such notice, such damages are
allowed. (6)
Depreciation in the market, during delay, is not too remote for
consideration, and forms an element in the measure of damages.(7)
(1) R. R. Co. r. Hale, I S. \V. Rep. 623, Tenn. (1886) ; Ingledew v.
Ry. Co., 7 Gray (Mass.) 86; R. R. Co. v. Reynolds, 8 Kan. 623 (1871) ;
R. Co. v. Henry, 14 111. 156 (1852).
(2) McGill v. G. T. Ry. Co., 19 Ont. A. R., at p. 249.
(3) Black v. Baxendale, I Exch. 410.
(4) Provencher v. Cnn. Pac. Ry. Co., S. C. 1889, M. L. R. 5 S. C. 9;
and see, also, Deming v. Ry. Co., 48 N. H. 455 ; Inglerlew v. R, R. Co., 7
Gray 86 Mass. ; R. K. Co. v. Kennedy, 41 Miss. 671 ; Brigs v. Ry. Co., 28
Barb. 515.
(5) Hornez'. Midland Ry. Co., L. R , 8 C. P. 131 ; Thol. v. Henderson,
L. R. 8 Q. B. D. 457.
(6) Deming v. R. R. Co., 48 N. H. 455 (1869), wherein all the English
authorities, previous to this case, are cited and discussed ; Harvey v. R. R.
Co., 124 Mass. 421 ; Langdon v. Robertson, 13 O. R. 497.
(7) Ward v. R. Co., 47 N. Y. 29 (1871); Cutting v. R. Co., 13
Allen 381 (1866) ; Sisson v. R. Co., 14 Mich. 489 (1866).
422 THE RAILWAY LAW OF CANADA.
Although this point is not free from doubt in England ; yet, in
regard to land carriage, it appears to be settled that such dam-
ages can be recovered, (i)
But, in cases where the shipment is intended for a particular
market day, damages resulting from delay beyond that day, are
not recoverable unless the carrier had express notice, or implied
notice from a custom so general and well known as to amount
thereto, that the shipment was intended for a particular market
day. (2)
The loss of profits from an intended special use of the ship-
ment are not recoverable, unless notice as to that use was given
at the time of shipment. (3) Such damages include damages for
loss of profit on a sub-sale to a purchaser, and a sum for damages
recovered by the sub-purchaser for breach of contract which may
be the sum actually recovered. (4)
Where plaintiff delivered to common carrieis a roll of oil-cloth
to be conveyed by them, and, on arrival, it was so damaged that
the plaintiff refused to receive it, and brought action for the full
value thereof, the Court directed the jury that if they thought the
oil-cloth was not seriously damaged, but easily repairable, the
plaintiff was bound to receive it, and claim only damages; but if
too seriously injured to fulfill the purpose for which he required
it, he might claim its whole value. (5)
Breach of 3. Under the Quebec Code (6) the damages resulting from delay
contract. jn t]ie payment of money, to which the debtor is liable, consist
only of interest at the rate legally agreed upon by the parties, or,
in the absence of such agreement, at the rate fixed by law — these
damages are due without the creditor being obliged to prove
(1) Wilson v. Lancashire & Yorkshire Ry. Co., 9 C. B. N. S- 632 ; Collard
v. S. E. R. Co., 7 H. & N. 79, and see Home v. Midland Ry. Co., supra, p.
421.
(2) R. R. Co. v. Lehman, 56 Md. 209 ; Hamilton r. R. R. Co., 3 S. E.
Rep. 164; North. Car. (1887).
(3) Simpson v. L & N. W. Ry. Co , L. R., I Q. B. D. 27-1 ; Cooper v.
Young, 22 Ga. 269.
(4) Elbinger Actien Gessellschaft v. Armstrong, L. R., 9 Q. B. 473 ;
Grebeit Borgnis v, Nugent, 15 Q. B. D. 85 ; Hamilton z>. Magill, 12 L. R.
Ir. 1 86.
(5) Dodge i'. Windsor & Annapolis Ry. Co., 2 Gelder & Oxley 537 ; and
see Hackett v. R. R. Co., 35 X. H. 390; Shaw r-. R. R. Co., 5 Rich. 462;
S. Carolina Ry. Co. v. Tyson, 46 Miss. 729; Biiggs f. R. R. Co., 28
Barb. 515.
(6) Art. 1077.
THE MEASURE OF DAMAGES. 423
any loss. This is also the law of England and the United States,
(i) excepting where the obligation has reference to other objec's
than the mere discharge of a debt. (2) And this distinction obtains
under the Quebec law ; for in an action by a railway company
against a municipality for refusal to issue debentures, the
Supreme Court held that apart from its liability for the amount of
the debentures subscribed and interest thereon, the municipality
was liable under Arts 1065, 1073, 1840 and 1841 C. C. for
damages for breach of the covenant. (3)
And it was also held in this case, that where a party has
suffered wrong, and is unable to prove the damages sustained by
that wrong, the Court should not dismiss his action, but give him
reasonable damages. This doctrine, however, appears to have
been modified by the Privy Council in McDotigall v. McGrcevy.
(4) In this case the plaintiff transferred shares of railway
stock to defendant, the former to have the right to redeem the
stock within ten months from date, by paying 50 per cent, of the
nominal amount of the share. The plaintiff made a sufficient
tender within the delay, but the defendant had disposed of the
shares, and refused to receive the amount.
In an action of damages for breach of contract, it was held,
that the measure of damages was the sum which the plaintiff
could have obtained for the shares beyond the amount which he
had to pay to get them back ; and it not being clearly established
that he could have sold the shares for more than this amount, or
that the defendant had received any greater amount therefor,
apart from other and subsequent transactions, the action was
dismissed.
Where the defendant was obliged to return the plaintiff certain
raihvay bonds, but was unable to do so owing to his having
sold them, it was held that he should be condemned to pay the
actual value thereof at the time the bonds were acquired by him,
and not their par or nominal value. (5)
(1) Fletcher v. Tayleur, 17 C. B. 21 ; Loudon v . Taxing District, 104
U. S. 771.
(2) Marzetti r, Williams, i B. & Ad. 415 ; Prehn r. Royal Bank of
Liverpool, L. R., 5 Ex. 92.
(3) Corporation of Ottawa v. Montreal, Ottawa & Western Ry. Co., 14
S. C. R. 193.
(4) P. C. 1889, 12 L. N. 379.
(5) Senecal r. Hatton, P. C. 1886. 10 L. N. 50.
424 THE RAILWAY LAW OF CANADA.
For refusal by a railway company to transfer shares during
several months, the true measure of damage is the difference
between the price of the stock at the time of such refusal and
the price at the time of the subsequent registration of the
transfer, (i)
Where a railway company, in breach of a contract entered into
by them to run trains from the eastern part of a city to the west-
ern part, ceased to run such trains, it was held, on a reference
as to damages, that though the actual depreciation of properly
in the western part of the city resulting therefrom was a matter
pertaining to the property owners and not to the city, yet the
lessened taxation resulting from such depreciation was not too
remote a fact for consideration on the reference, and such a loss
in taxation, which could be traced to or reasonably connected
with the company's default, formed a yearly standard which
might be capitalized so as to fairly represent the money compen-
sation to which the plaintiffs were entitled. Stated broadly, the
enquiry was how much less benefit had been received by the
municipality by reason of the railway service at one station
being discontinued. The personal loss or inconvenience suffered
by travellers or citizens from the abandonment of the station, or
the actual depreciation in the value of the land individually
owned in that neighborhood could not be reckoned as constituents
per se of the damages suffered by the corporation. If the rail-
way company admitted that they were never again going to run
trains to the western end of ihe city, the damages should be
assessed once for all, which might be done either by fixing a
lump sum, or by directing a yearly payment. (2)
Injuries to 4:. The damage which can be recovered in respect of death oc-
casioned by a wrongful act, neglect or default is restricted to the
actual pecuniary loss sustained by the plaintiff. (3) But in cal-
culating the effect of an insurance on deceased's life in favor of
his widow, the amount of such policy is not to be deducted from
the amount of damages previously assessed, irrespective of such
consideration. She is benefited only by the accelerated receipt
(1) G. T. Ry. Co. v. Webster, 6 L. C. J. 179.
(2) Corporation of the City of St. Thomas v. Credit Valley Ry. Co., 15
O. R. 673.
(3) G. T. Ry. Co. v. Jennings, P. C. 1888, 13 App. Cas. 800.
THE MEASURE OF DAMAGES. 425
of the amount of the policy, and that benefit being represented
by the interest of the money during the period of acceleration,
may be compensated by deducting future premiums from the
estimated future earnings of the deceased. (i)
In England it has been clearly laid down that the feelings of
the bereaved consort, child or parent, cannot be taken into con-
sideration in the estimation of damages. Under the Quebec law
the contrary doctrine prevailed until overruled by the Supreme
Court in Canadian Pacific Ry. Co. v. Robinson, (2) and City of
Montreal v. Labelle, (3) thus rendering the law of Ontario and
Quebec uniform on this point. (4)
Although, on the death of a wife caused by negligence of a
railway company, the husband cannot recover damages of a sen-
timental character, yet the loss of household services accustomed
to be performed.by the wife, which would have to be replaced by
hired services, is a substantial loss for which damages may be
recovered, as is also the loss to the children of the care and moral
training of their mother. (5)
If the amount awarded in the Court of first instance is not
such as to shock the sense of justice and to make it apparent
that there was an error or partiality on the part of the judge (the
exercise of a discretion on his part being in the nature of the case
required), an appellate Court will not interfere with the discretion
such judge has exercised in determining the amount of dam-
ages. (6)
Where the jury granted $2,000 damages for a supposed broken
arm, and the evidence as to the injury being very loose, no
medical witnesses having been called, the Court granted a new
trial on payment of costs. (7)
(1) lb. & G.T. Ry. Co. w.Beckett, Supreme Court 1886, 16 S. C. R. 713 ;
Bradburn v. G. W. Ry. Co., L. R., 10 Ex. i.
(2) 14 S, C. R. 105.
(3) I4S.C.R. 741.
(4) As to pain and suffering as an element ia assessing damage in Quebec,
see Auclair v. Bastien, M. L. K., 4 S.C. 74 ; and in England, Phillips v. Lon.
& S. W. Ry. Co., L. R., 5 C. P. D. 280.
(5) St. Lawrence & Ottawa Ry. Co. v. Lett, Supreme Court 1885, u
S. C. R 422.
(6) Levi v. Reed, Supreme Court, 6 S. C. R. 482; Gingras v. Desilets,
Supreme Court, nth Feb , 1881, Cassel's Dig. 213 ; Blanch ird v. Windsor
& Annapolis Ry. Co., I Russell & Chesley (Nrova Scotia) 8 ; Lambkin v,
South Eastern Uy. Co., P. C. 1880, 5 App. Cas. 352.
(7) Watson v. The Northern Ry. Co., 24 U. C. Q. 6.98.
426 THE RAILWAY LAW OF CANADA.
Where a verdict of £50 was given against a railway company
for putting the plaintiff off a train, though the inconvenience
occasioned to him was trifling, and the conductor acted bonafide
under an impression that the plaintiff had not paid his fare, and
without harshness or violence, a new trial was granted L>r ex-
cessive damages, (i) Where there are two concurring verdicts,
the Court will very rarely grant anew trial, though there are cases,
such as Gibson v. Muskett, (2) where the question being sub-
stantially a point of law, a third trial has been granted. How-
ever, in an early Ontario case, (3) it was held that the Court will
grant repeated new trials where verdicts are rendered contrary to
law and evidence, especially in cases affecting continuous rights.
But in a later Ontario case (4) it was held that although the
damages awarded ($300 for being wrongfully put off a train) were
excessive, yet, it being the second verdict "obtained by the
plaintiff, the Court would not, on that ground, disturb the verdict.
In another recent Ontario case, (5) the jury assessed plaintiffs
damages for wrongful removal from the train at $1,000, which
was affirmed by the Divisional Court ; but in appeal this amount
was reduced to $500, as being unwarrantably large.
Injury to 5. The damages contemplated by the sections of the Railway
Acts relating to injury to cattle on the track are actual damages,
and the expense and trouble a proprietor of cattle incurs in
herding his cattle before the accident to prevent their escaping
on to the railway lines, on account of absence of fences, is
not a damage that can be recovered from the railway com-
pany. (6)
(1) Huntsman v. Great Western Ry. Co., 20 U. C. Q. B. 24.
(2) 4 M. & Gr. 160.
(3) Kiiby v. Lewis, i U. C. Q. B. 285 (1843).
(4) Curtis v. G. T. Ry. Co., 12 U. C. C. P. 89 (1862).
(5) Dancey v. G. T. Ry. Co., 1892, iq Ont. A. K. 664 ; asto the measuie
of damages in cases of passengers being put off the train or being delayed on
the journey ; See Siipra, pp. 289, 342.
(6) Fouchon v. O. & Q. Ky. Co., n L. N. 74.
APPKNDIX
CONTAINING
DOMINION RAILWAY ACT
(As amended to date),
AND CONCORDANCE THEREWITH OF PROVINCIAL ACTS
(As amended.)
Note. — When a figure comes af term atter between brackets : thus
( ) ( i ) the reference to such figure relates to all the matter
contained between the brackets so numbered. When a figure
occurs between words, such figure relates to matter to be inter-
polated.
DOMINION RAILWAY ACT.
51 VICTORIA.
CHAP. 29.
AN ACT RESPECTING RAILWAYS.
(Assented to 22nd May, 1888.)
HER Majesty, by and with the advice and consent of the Preamble.
Senate and House of Commons of Canada, enacts as
follows : —
SHORT TITLE.
1. This Act may be cited as " The Railway Act" short title.
INTERPRETATION.
2. In this Act and in the special Act incorporating any rail- Interpreta-
way company to which this Act or any part thereof applies, un- tlon<
less the context otherwise requires, —
(a) The expression "company" means a railway company, "Company."
and includes any person having authority to construct or operate
a railway ;
R.S. O., ch. 170, sec. 3 (lo). "The Company" means the company or
party authorized by the special Act to construct the railway. R. S. Q , Art.
5129 (10) ; R. S. M., ch. 130, sec. 3 (h) ; R. S. N. S., ch. 53, sec. 5 (15).
JN.B., 1891, ch. 18, sec. 3 (2). Same as Ontario.
THE RAILWAY LAW OF CANADA.
"County." (£) The expression "county" includes any county, union of
counties, riding (or like division of a county in any Province, or,
in the Province of Quebec, any division thereof into separate
municipalities) (i>;
R. S.O., ch. 170, sec. 3 (5). First ten words of above and (i) "District
and County Court Judge shall include a judge of a District Court."
R. S. Q., Art. 5129 (5). " Shall include any county, any union of counties^
or any division thereof into separate municipalities.
N. B., iSgi, ch. 18, sec. 3 (4). " County or District" shall mean County
Court Districts. Sec. 3 (3). "County Court Judge" shall include a judge
of the Supreme Court.
R, S. N. S., ch. 53, sec. 5 (io). " The word ' County ' shall include
county, or any division thereof into separate municipalities."
(V) The expression "court" means a superior court of the
Province or district :
(</) The expression " department " means the Department
of Railways and Canals ;
{e) The expression " deputy " means the Deputy of the
Minister of Railways 'and Canals ;
(/) The expression " goods " includes things of every kind
that may be conveyed upon the railway, or upon steam vessels
or other vessels connected with the railway ;
R. S. O., ch. 170, sec. 3 (4).
R. S. M., ch., 130, sec. 3 (</).
R.S. Q., Art. 5129 (4).
N. B., 1891, ch. 18, sec. 3 (5).
R. S. N. S., ch. 53, sec. 5 (9).
"Highway." (g~) The expression "highway" includes any public road,
street, lane, or other public way or communication ;
R. S. O., ch. 170, sec. 3 (6).
R. S. Q., Art. 5129 (6).
R. S. M., ch. 130, sec. 3 (e).
N. B., 1891, ch. 18, sec. 3 (6). Also squares.
R.S. N. S., ch. 53, sec. 5 (11).
'.'Court."
" Depart-
ment."
«< Deputy."
" Goods."
" Inspecting
Engineer."
" Judge."
(//) The expression "inspecting engineer" means an engi-
neer who is directed by the Railway Committee or by the Minis-
ter to examine any railway or works, and includes two or more
engineers when two or more are so directed ;
(?) The expression "judge" means a judge of a superior
court.
R. S. M., ch. 130, sec. 2 (e). The expressions "judge in chambers '' and
"judge" respectively mean a judge of the Court of Queen's Bench sitting
in Chambers. See also notes to (I>) supra.
DOMI.NION AND PROVINCIAL RAILWAY ACTS. Hi
(/) The expression "justice" means a justice of the peace" Justice."
acting for the district, county, riding, division, city or place
where the matter requiring the cognizance of a justice arises, and
who is not interested in the matter, (i) (and when any matter is
authorized or required to be done by two justices, the expression
"two justices " shall be understood to mean two justices assem- " Two jus-
bled and acting together.) (2)
R. S. O., ch. 170, sec. 3 (8). — (l) " and where the matter arises in respect
of lands being the property of one and the same party, situate not wholly in
any one district, county, riding, division, city or place. The word "justice"
shall mean a justice acting for the district, county, riding, division, city or
place where any part of such lands are situate, and who is not interested in
such matters." Thus also R. S. M., ch. 130, sec. 3 (/), and R. S. Q., Art.
5129 (8). N. B., 1891, ch. 18, sec. 3 (7).
(2) Provision as to two justices, R. S.Q. only.
R. S. N. S., ch. 53, sec. 5 (13). Same as Quebec.
(£) The expression "lands" means the lands, the acquiring, « Lands."
taking or using of which is incident to the exercise of the powers
given by this or the special Act, and includes real property,
messuages, lands, tenements and hereditaments of any tenure;
R. S. O., ch. 170, sec. 3 (r). " Lands shall include all real estate,
messuages, lands, tenements and hereditaments of any tenure." Also R. S. M.,
ch. 130, tec. 3 (a) ; R. S. Q., Art. 5129 (i). N. B., 1891, ch. 18, sec. 3
(8) ; R. S.N. S., ch.53. sec. 5 (6).
(/) The expression "lease" includes an agreement for a "Lease."
lease ;
R. S. O., ch. 170, sec. 3 (2).
R. S. M., ch. 130, sec. 3 (*).
R. S. Q., Art. 5129(2).
N. B., 1891, ch. 18, sec. 3 (9).
R. S. N. S., ch. 53, sec. 5 (7).
(/») The expression '; map or plan " means a ground plan « Map or
of the lands and property taken or intended to be taken. plan."
(n) The expression "Minister" means the Minister of Rail-1' Minister."
ways and Canals ;
(<?) A railway shall be deemed to come " near" to another1' Near."
when some part of the one is within one mile of some part of the
other ;
(p) The expression "owner," when, under the provisions of "Owner."
this Act or the special Act. any notice is required to be given to
the owner of any lands, or when any act is authorized or re-
quired to be done with the consent of the owner, means any (i)
iv THE RAILWAY LAW OF CANADA.
person who, under the provisions of this Act or the special Act, or
any Act incorporated therewith, would be enabled to sell and
convey lands to the company ; (2)
R. S. O., ch. 170, sec. 3 (9).— (i) "Corporation or ". R. S. M., ch. 130,
sec. 3 Of); R. S. Q., Art. 5129 (9); R. S. N. S., ch. 53, sec. 5 (14). N. B.,
1891, ch. 18, sec. 3 (10). Same as Ontario.
(2) N. B. Additional, " And shall also (subject to the payment to the Crown
of any unpaid purchase money) include a recognized applicant for Crown
Lands."
"Railway." (q) (As amended by 55-56 Vic., ch. 27, sec. i). The expres-
sion " railway " means any railway which the company has
authority to construct or operate, and includes all stations, depots,
wharves, rolling stock, equipment, property, and works con-
nected therewith, and also any railway bridge or other structure
which any company is authorized to construct under a special
Act;
R. S. O., ch. 170, sec. 3 (u). "The Railway" shall mean the rail-
way and works by the special Act authorized to be constructed (i) ; also R.
S. M., ch. 130, sec. 3 (i) ; R. S. N. S., ch. 53, sec. 5 (16).
N. B., 1891, ch. 18, sec. 3 (ii), same as Dominion Act.
R. S. Q., Art. 5129 (II), same as Ontario; additional (i) " or executed."
"Railway (r) The expression "the Railway Committee" means the
Committee." Railway Committee of the Privy Council ;
"Sheriff." (/) The expression "sheriff" means the sheriff of the district,
county, riding, division, city or place within which are situated
any lands in relation to which any malter is required to be done
by a sheriff, and includes an under-sheriff or other lawful deputy
of the sheriff;
N. B. 1891, ch. 18, sec. 3 (14). "Sheriff" shall include (Deputy Sheriff), (i)
or other legal competent deputy ; and where any matter in relation to any
lands is required to be done by any Sheriff or Clerk of the Peace, the expres-
sion "Sheriff" or the expression " Clerk of the Peace" shall in such cases
be construed to mean the Sheriff or Clerk of the Peace of the County (2) where
such lands are situate ; and if the lands in question (3) are not situate wholly
in one County (4), the same expression shall be construed to mean the Sheriff
or Clerk of the Peace of any County where any parts of such lands are situate."
R. S. O., ch. 170, sec. 3 (7), same as N.B., excepting (i) "under Sheriff,"
(2) "district, county, riding, division or place," (3) " being the property of
one and the same party," (4) " district, county, riding, division or place."
R.S.Q., Art. 5129 (7), same as N.B., excepting (i) "under Sheriff," (3)
" being the property of one and the same party."
R. S. N. S., ch. 53, sec. 5 (12). Same as Ontario.
DOMINION AND PROVINCIAL RAILWAY ACTS. v
(/) The expression " Special Act " means any Act under " Special
which the company has authority to construct or operate a rail-Act-
way, or which is enacted with special reference to such railway,
and includes all such Acts ;
R. S. O., ch. 170, sec. 2 (I). " The special Act " shall be construed to mean
any act authorizing the construction of a railway, and with which this Act is in-
corporated . ( I )
R. S. M., ch. 130, sec. 2 (a). Same as Ontario ; additional (I) "and in-
cludes The Railway Companies' Incorporation Act."
R. S. Q., Art. 5128. The expression " the Special Act or charter" shall
be construed to mean any Act, statute, or law authorizing the construction of
a railway with which this section of the Quebec Consol. Ry. Act 1880 is
incorporated.
N.B., 1891, ch. 18, sec. 2 (i). R. S. N. S., ch. 53, sec. 5 (i). Same as
Ontario.
(u) The expression "toll" includes any rate or charge « Toll."
made for the conveyance of any passenger, goods, or carriage,
or for the collection, loading, unloading, cording or delivery of
goods, or for warehousing or wharfage, or other services inciden-
tal to the business of a carrier;
R. S. O., ch. 170, sec. 3 (3). " Toll " shall include any rate or charge or
other payment payable under this Act or the Special Act, for any passenger,
animal, carriage, goods, merchandise, articles, matters, or things conveyed on
the railway. N. B., 1891, ch. 18, 860.3(15); R. S. Q., Art. 5129 (3) ;
R. S. N. S., ch. 53, sec. 5 (8); R. S. M., ch. 130, sec. 3 (<:). Same as
Ontario.
(v} The expression "traffic" includes not only passengers "Traffic."
and their baggage, goods, animals and things conveyed by rail-
way, but also cars, trucks and vehicles of any description adapt-
ed for running over any railway ;
(w} The expression " the undertaking" means the railways " The under-
and works, of whatsoever description, (i) which the company
has authority to construct or operate;
R. S. O., ch. 170, sec. 2 (4), — (i) " by the special Act authorized to be
executed." R. S. M., ch. 130, sec. 2 (J) ; R. S. Q., Art. 5128 (\) ; R.
S. N. S., ch. 53, sec. 5 (4). N. B., 1891, ch. 18, sec. 2 (4). Same as
Ontario.
(#) The expression "working expenditure" means and in- « Working
eludes all expenses of maintenance of tne railway, and of the sta- expenditure."
tions, buildings, works and conveniences belonging thereto, and
of the rolling and other stock and movable plant used in the
working thereof, and also all such tolls, rents or annual sums as
are paid in respect of property leased to or held by the company,
vi THE RAILWAY LAW OF CANADA.
apart from the rent of any leased line, or in respect of the hire
of engines, carriages or waggons let to the company; also, all
rent charges or interest on the purchase money of lands belong-
ing to the company, purchased but not paid for, or not fully
paid for; and also all expenses of or incidental to working the
railway, and the traffic thereon, including stores and consumable
articles ; aUo, rates, taxes, insurance and compensation for ac-
cidents or losses; also, all salaries and wages of persons em-
ployed in and about the woiking of the railway and traffic ; and
all office and management expenses, including directors' fees,
agency, legal and other like expenses ; and generally all such
charges, if any, not [above otherwise specified, as in all cases of
English railway companies are usually carried to the debit of
revenue, as distinguished from capital account ;
\\hen lands fy\ ^v]ieri aily niatter arises in respect of any lands which are
are not situa' e v '
wholly in one the property of one and the same person, and which are not
district. situate wholly in any one district, county, riding, division, city
or place, the expressions "clerk of the peace/' "justice" and
"sheriff" respectively, mean any clerk of the peace, justice or
sheriff for any district, county, riding, division, city or place
within which any portion of such lands is situate; and the ex-
pressions "clerk of the peace" and "sheriff" respectively in-
clude the like persons as in other cases.
See supra (j) and (;).
APPLICATION OF THE ACT.
Application 3. This Act, subject to any express provisions of the special
of Act. Act, and to the exception hereinafter mentioned, applies to all
persons, companies and railways within the legislative authority
of the Parliament of Canada, except Government railways.
R. S. O., ch. 170, sec. 4. " Where not otherwise expressed, this (and the
following sections to section 44 inclusive) (i) shall apply to every railway
which is subject to the Legislative authority of the Legislature of this Pro-
vince (and has been authorized to be constructed by any special Act of the
late Province of Canada or of this Province, passed since the 3<3th day of Au-
gust, 1851), (2) or is authorized to be constructed by any special Act passed
after this Act takes effect ; (3) and this Act shall be incorporated with every
such special Act ; and all the clauses and provisions of this Act, unless
they are expressly varied or excepted by such special Act, shall apply
to the undertaking authorized thereby, so far as applicable to the undertaking,
and shall, as well as the clauses and provisions of every other Act incorpor-
ated with such special Act, form part of such special Act, and be construed
together therewith as forming one Act."
DOMINION AND PROVINCIAL RAILWAY ACTS. vii
R. S. M., ch. 130, sec. 4, same as Ontario, excepting (l) "Act," (2) omit-
ted, (3) additional, "or since the 25111 May, l88r."
R. S. Q., Art. 5125, "Articles 5128 105181, both inclusive, apply to
every railway constructed or to be hereafter constructed, and shall, in so far as
they are applicable to such undertaking, and unless they are expressly varied
or excepted by the charter or special Act, be incorpo ated with the charter or
special Act, form part thereof, and be construed accordingly/1
N. B., 1891, ch. 18, sec. 4 (as amended by 56 Vic., ch. 9).
" Where not otherwise expressed, this and the following sections, to section
35 inclusive, shall apply to every railsvay which is subject to the legislative
authority of the Legislature of this Province, and is authorized to be con-
structed by any special Act passed during this present session or after this
Act takes effect, and shall also apply to every railway company which shall,
after the passage of this Act, elect to become subject to this section by serv-
ing a written notice of such election under its seal upon the Provincial Secre-
tary, whose duty it shall be, at the expense of the company, to publish a notice
of such election in the Royal Gazette, for at least four consecutive issues im-
mediately subsequent to such election, and the said sections of this Act, from
4 to 35 inclusive, shall be, deemed to be incorporated with every such special
Act, or with the Act incorporating said company sj making such election,
and all the provisions of such sectiins, unless they are expressly varied or ex-
cepted by such special Act, shall apply to the undertaking authorized thereby,
so far as applicable to the undertaking, and shall, as well as the clauses and
provisions of every other Act incorporated with such special Act, form a part
of such special Act, or incorporating Act, and be construed together therewith
as forming one Act."
R. S. N. S., ch. 53, sec. r. " The provisions of this chapter from section
5 to section 33 both inclusive, being part 1st of this chapter, shall apply to
every railway constructed and in operation, or hereafter to be constructed,
under authority of any Act passed by the Legislature of Nova Scotia, and
shall, so far as they are applicable to the undertaking be incorporated with
the Special Act, form part thereof, and be construed as forming one act,
unless they are inconsistent with or are expressly varied, or excepted by the
Special Act or other Act of the Legislature of Nova Scotia."
4. In addition, all the provisions of this Act relating to any Andofcer-
subject or matter within the legislative authority of the Parlia- tain provi-
.. , , . , .. . sions thereof,
ment of Canada, and for greater certainty, but not so as to res-
trict the generality of the foregoing terms, all provisions relating
to railway crossings and junctions, offences and penalties and
statistics apply to all persons, companies and railways, whether
otherwise within the legislative authority of Parliament or not.
5. The provisions of this Act, from section thirty-two to sec- Application
tion eighty-nine, both inclusive, do not apply to every company °o^Uo
and railway within the legislative authority of the Parliament of
Canada, but apply to —
(a) Every company whose authority to construct or operate
any railway is derived from the Parliament of Canada, and to
viii THE RAILWAY LAW OF CANADA.
every railway constructed or to be constructed under the author-
ity of any Act passed by the Parliament of Canada ;
(6) Every company and railway to which such provisions are
made applicable, as hereinafter provided ;
To form part 2. Such provisions shall, in so far as they are applicable to the
of special Act. undertaking, and unless they are expressly varied or excepted
therefrom by the special Act, be incorporated with the special
Act, form part thereof, and be construed therewith as forming
one Act ;
Exception of 3. (Any of such provisions) (i) may be excepted from incor-
am provi- pOration wjth the special Act, by enacting, in such special Act,
that the sections of this Act proposed to be excepted, referring
to them by the numbers which they bear respectively, shall not
be incorporated with such special Act, which shall thereupon be
construed accordingly.
R. S. Q., Art. 5126, same as sec. 5 (3) Dom. Act, excepting (i) "Arti-
cles 5128 105181."
R. S. Q., Art. 5127. "Articles 5182 to 5221, both inclusive, apply to all
railways in course of construction by the Government of the Province of Que-
bec, and the property of the Province of Quebec, in so far as they are not in-
consistent with any special Act respecting them, to all railways, which have
been or which may be constructed, under the authority of any charter granted
by the Legislature of the Government of this Province, and to all companies
incorporated for their construction and working ; subject always to any pro-
visions hereinafter made as to the application of any article or provision of
this section to any railway, or as to the time from which it is to be held as so
applying."
N. B., 1891, ch. 18, sec. 5, repealed by 56 Vic.,ch. 9. See under sec. 3
Dominion Act.
R. S. M., ch. 130, sec. 5. " Every special Railway Act shall be a public
Act, and for the purpose of incorporating this Act or any of its provisions
with a s-pecial Act, it shall be sufficient in such Act to enact, that the clauses of
this Act, with respect to the matter so proposed to be incorporated, referring
to the same in the word or words at the read of and introductory to the enact-
ment with respect to such matter, shall be incorporated with the special Act,
and thereupon all the clauses and provisions of this Act, with respect to the
matter so incorporated, shall, save in so far as they are expressly varied or
excepted by the special Act, foim part thereof, and the special Act shall be
constuied as if the substance of such clauses and provisions were set forth
theiein with reference to the matter to which the special Act relates."
R. S. O. , ch. 170, sec. 5, same as Manitoba.
R. S. O., ch. 170. sec. 45. "Unless otherwise provided, the following
sections (45 to ni_) and sub-secticn 4 of sec. 41 shall apply to every railway
subject to the legislathe authority of the Legislature of this Province, made
or to be made in this Piovince." R. S. N. S., ch. 53, sec. 4 (part second).
R. S. N. S., ch. 53, sec. 3, same as sec. 5 (3), Dom. Act, excepting (I)
" Sections forming part 1st of this chapter."
DOMINION AND PROVINCIAL RAILWAY ACTS. ix
6. If in any special Act it is provided that any provisions of any AS to excep-
tions T
force.
general Railway Act in force at the time of the passing of the uons now m
special Act is excepted from incorporation therewith, or if the
application of any such provision is extended, limited or quali-
fied, the corresponding provision of this Act shall be excepted,
extended, limited or qualified in like manner.
SECTIONS WHICH MAY BE MADE APPLICABLE TO ANY RAILWAY
WITHIN THE LEGISLATIVE AUTHORITY OF PARLIAMENT.
7. Any company within the legislative authority of the Parlia- How certain
ment of Canada, to which the provisions of sections thirty-two ^Ty 'be made
to eighty-nine both inclusive of this Act are not, or are not clear- applicable to
ly and without question, applicable, may apply to the Governor ^"s^wt
in Council for an order to make the same with or without excep-to them,
tions or qualifications applicable to such company ; and the
Governor in Council, upon proof that notice of such application
has been inserted for four weeks in the Canada Gazette, may
order and declare that the provisions of sections thirty-two to
eighty-nine both inclusive of this Act, with such exceptions and
qualifications as to the Governor in Council appear just, sha'l
thereafter apply to such company and its railway ; and such
order shall be published in the Canada Gazette, and a copy thereof
laid before Parliament within fourteen days after the next meet-
ing thereof.
THE RAILWAY COMMIT I EF.
8. The Railway Committee of the Privy Council shall consist Constitution
of the Minister of Railways and Canals, who shall be chairman of Railway
thereof, of the Minister of Justice, and of two or more of the
other members of the Queen's Privy Council for Canada, to be
from time to time appointed by the Governor in Council, three
of whom shall form a quorum ; and such committee shall have
the powers and perform the duties assigned to it by this Act.
R. S- Q., Ait. 5182. "The Lieutenant-Governor may, from time to time,
appoint such members of the Executive Council, to the number of four at
least, as he may see fit, to constitute the Railway Committee of the Executive
Council, and such committee shall have the powers and perform the duties
assigned to it by this section."
R.S. M., ch. 130, fee. 30. "The Railway Committee shall consist of the
Railway Commissioner, the Minister of Public Works, and such other member
of the Executive Council as may from time to time be appointed by the Lieu-
tenant-Governor in Council, and two of such Committee shall constitute a
quorum." (See also The Railway Commissioner's Act, R. S. M., ch. 131.)
x THE RAILWAY LAW OF CANADA.
Secretary. 9. The deputy of the Minister of Railways and Canals, or
some other fit person appointed by the Committee, shall be sec-
retary of the Committee.
R. S. Q., Art. 5183. "The Railway Committee shall appoint one of its
members to be chairman, and the Assistant Commissioner of Public Works,
or some other fit person appointed by the Committee, shall be the secretary
of the Committee."
Powers. 1O. The Railway Committee may : —
Rate of speed (0) Regulate and limit the rate of speed at which railway
in cities, etc. trains and locomotives may be run in any city, town or village,
or in any class of cities, towns or villages described in any regu-
lation, limiting, if the said Railway Committee thinks fit, the
rate of speed within certain described portions of any city, town
or village, and allowing another rate of speed in other portions
thereof, — which rate of speed shall not in any -case exceed six
miles an hour, unless the track is propeily fenced;
Steam \\his- (/,) Make regulations with respect to the use of the steam
whistle within any city, town or village, or any portion thereof;
Safety of em- (r) As amended by 57-58, Vic.ch.^i; Make- regulations with
ployees, etc. respect to the method of passing from one car to another, either
inside or overhead, and for the safety of railway employees while
passing from one car to another, and for the coupling of cars ;
and shelter of molormen and other employees operating electric
and other railway cars.
Penalties. (</) Impose penalties, not exceeding twenty dollars for each
offence, on every person who offends against any regulation
made under this section, — which penalties shall be recoverable
upon summary conviction ;
Other liability 2. The imposition of any such penalties shall not lessen or
not affected. affect anv other liability which any person may have incurred.
What matters 11. The Railway Committee shall have power to enquire into,
Railway hear and determine any application, complaint or dispute res-
Committee *
may hear and pectlllg :—
determine. fa\ Any right of way over or through lands owned or occupied
Right of way. ,
by any company ;
Change of (#) Changes in location for lessening a curve, reducing a gra-
dient, or benefiting the railway, or for other purposes of public
advantage ;
Branch lines. (c) The construction of branch lines exceeding one-quarter of
a mile in length, but not exceeding six miles ;
DOMINION AND PROVINCIAL RAILWAY ACTS. xi
(tf) The crossing of the tracks of one company by the tracks Crowing
r , tracks,
of another company ;
(<?) The alignment, arrangement, disposition or location of Location of
tracks ;
(/) The use by one company of the tracks, stations or station Use of tracks,
grounds of another company ;
(e) The construction of works in navigable waters ; Works in
waters.
(k] The construction of railways upon, along and across high- Highways,
ways ;
(V) The proportion in which the cost of fencing the approaches Cost of fen-
to crossings on railways constructed or under construction on cin»-
the nineteenth of April, one thousand eight hundred and eighty-
four, shall be borne by the company and the municipality or per-
son interested;
(/') The compensation to be made to any person or company Compensa-
in respect of any work or measure directed to be made or taken, J^:,.^ W
or the cost thereof, or the proportion of such cost, to beborne.by
any person or company ;
(k) Tolls and rates for the transportation of passengers and Tolls,
freight ;
(/) The adjustment of such tolls and rates between com- Adjustment
panics ; of tolls.
(///) Running powers or haulage ; Running
/" \ 'i* o± powers.
(«) 1 raffic arrangements ; Traffic.
(#) Transhipment or interchange of freight ; Tranship-
..... . ment.
(/) Unjust preferences, discrimination or extortion ; Preferences.
((/} Any highway or street, ditch or sewer, water, gas or other Streets, sew
pipes or mains over or through lands owned or occupied by theers> etc-
company; or —
(r) Any matter, act or thing, which by this or the special Act General mat-
is sanctioned, required to be done, or prohibited.
1<J. The Railway Committee or the Minister may appoint or Report may
direct any person to make an enquiry and report upon any ap-J*
plication, complaint or dispute pending before such committee,
•or any matter or thing connected therewith or incident thereto.
xii THE RAILWAY LAW OF CANADA.
Powers as to Ijj. The Railway Committee, the Minister, inspecting engi-
inquiry into . . ,. - , . ,
accident or neer> commissioner for enquiry into any accident or casualty, or
casualty. person appointed to make any enquiry or report, may —
Entry. («) Enter into and inspect any place or building being the
property or under the control of any company, the entry or in-
spection of which appears to it or him requisite ;
Inspection. (£) Inspect any works, engines, cars, carriages or property of
the company ;
Witnesses. (c) Require the attendance of all such persons as it or he
thinks fit to call before it or him, and examine, and require
answers or returns to such enquiries as it or he thinks fit to make ;
Books, papers, (//) Require the production of all books, papers, plans, speci-
fications, drawings and documents relating to the matter before
it or him ;
Oaths. (e) Administer oaths, affirmations or declarations.
R. S. O., ch. 170, sec. 51. "The Lieutenant Governor in Council may ap-
point and authorize any proper person or persons, not exceeding three in num-
ber, whose duty it shall be from time to time to inspect all railways con-
structed or in course of construction, and every person so authorized may, at
all reasonable times, upon producing his authority if required, enter upon and
examine the railway and the stations, fences or gates, road crossings, cattle
guards, works and buildings, and the engines, cars and carriages belonging
thereto."
N. B., 1891, ch. 18, sec. 38, same as Ontario.
R. S. Q., Art. 5192. " Any engineer appointed as aforesaid to inspect any
railway or works may, at all reasonable times, upon producing his authority,
if required, enter upon and examine the said railway and the stations, fences
or gates, road crossings, cattle-guards, works and buildings, and the engines,
cars and carriages belonging thereto."
Drains water 14:. Whenever, after due notice of application therefor, the
and other Railway Committee decides that it is necessary in the interest
perty of com- °^ anv municipality, that means of drainage should be provided,
pany. or lines of water pipes or other pipes should be laid, or streets
made through, along, across or under any works or lands cf the
company, it may, after hearing the parties, direct how and on
what terms such drainage may be effected, or water pipes or other
pipes ]aid or streets made ; and thereupon such municipality
may construct the works necessary to carry out such direction,,
but only under the supervision of such official as the Railway
Committee appoints, — or at its option the Company may con-
struct such works under the like supervision ; and the cost of
DOMINION AND PROVINCIAL RAILWAY ACTS. xiii
constructing such works, the cost of supervision, and the con- Expense, by
tinued maintenance of the same shall be paid by such munici- w °
pality, unless the Railway Committee direct that the company
bear some proportion thereof, — in which case the company shall
bear such proportion as the Railway Committee decides.
15. The Railway Committee, the Minister and every such Compelling
engineer, commissioner or person, shall have the same power to attendance of
. \ . witnesses, &c.
enforce the attendance of witnesses, and to compel them to give
evidence and produce the books, papers or things which they
are required to produce, as is vested in any court in civil cases.
16. Every person summoned to attend before the Railway Payment of
Committee, or the Minister, or before any such engineer, com- Wltnesses •
missioner, or person, shall receive the same fees and allowances
for so doing as if summoned to attend before a court of civil jur-
isdiction in the Province in which he is required to appear.
17. Any decision or order made by the Railway Committee Decision may
under this Act may be made an order of the Exchequer Court of be made order
Canada, or of any superior court of any Province of Canada,
and shall be enforced in like manner as any rule or order of such
court.
18. The Railway Committee may review and rescind, or vary Re.view of de~
, . . . . . ' cision.
any decision or order previously made by it.
19. The Railway Committee may, if it thinks fit, at the in- Case may be
stance of any party to the proceedings before it, and upon su
security being given as it directs, state a case in writing for the
opinion of the Supreme Court of Canada upon any question
which in the opinion of the Committee is a question of law.
20. The Supreme Court of Canada shall hear and determine Opinion to be
the question or questions of law arising thereon, and remit the e wele '
matter to the Railway Committee, with the opinion of the court
thereon.
21. Subject to the provisions of section eighteen, every deci- Decision final,
sion and order of the Railway Committee shall be final : Pro-
vided always, that either party may petition the Governor in
Council, and the Governor in Council may, in his discretion, res- Appeal to
cind, change or vary such order as he deems just and proper. v™1
xv
THE RAILWAY LAW OF CANADA.
Costs.
Certain docu-
evidence.
Promulgation
committee.
And of minis-
in" engineer1"
Publication
by the com-
pany.
22. The costs of and incidental to any proceeding before the
Railway Committee shall be in the discretion of the Committee.
23. Every document purporting to be signed by the chair-
man afid secretary of ihe Railway Committee, or by either of
them, or by the Minister, shall be received in evidence without
proof of any such signature, and until the contrary is proved
shall be deemed to have been so signed and to have been duly
executed or issued by such committee or by the Minister, as the
case may be.
g4. Eveiy decision ai d order of the Railway Committee
shall be considered as made known to the company by a notice
thereof (signed by the chairman and the secretary of the com-
mittee, or by either of them),'(i) and delivered to the president,
vice-president, managing director, secretary or superintendent
of the company, or at the office of the company (and every or-
der of the Minister or of the inspecting engineer shall be deem-
e<^ to ^e ma<^e known to the company by a notice thereof, signed
respectively by the Minister or the engineer, and delivered as
above mentioned). (2)
K. S. O., ch. 170, sec. 70 — (2) "All orders of the (Commissioners)
((?) shall he considered as made known to the railway company by a notice
thereof signed by him, ar.d delivered to the president, vice-president,
managing-director, secretary or superintendent of the company (£)."
N. B., 1891, ch. 18, fee. 57. Same as Ontaiio, excepting (a) "Chief
Con : mission* r of Public Woiks," (/>) " or at the cffice of the Company."
R. S. Q., Art. 5201. Same as Dominion, excepting (i) " signed by the
chairn-.an and countersigned by the secretary of the Committee.'' Also omit-
ting the \void " Minister " before inspecting engineer in the latter part.
R. S. N. S., ch. 53, sec. 53, same as Dominion, excepting (i) " signed by
the Commissioner of Public \Yoiks.'1 And substituting " Governor in Coun-
cil " for " Railway Committee", also omitting " Minister."
<>5. Every company shall, as soon as possible after the re-
ceipt of any order or notice of the (Railway Committee or the
Minister or the inspecting engineer), (i) give cognizance thereof
to each of its officers and servants (by delivering a copy to him,
or by posting up a copy thereof in some place where his \voik or
his duties, or some of them, are to be performed). (2)
R. S. O., ch. 170, sec. 59.— (i) "Commissioner of Public Works," (2)
" in one or more of the ways mentioned in section 89 of this Act." Sec. 89
reads as follows : "The notice of the by-law or of any order or notice of the
Commissioner of Public Woiks may be proved by proving the delivery of a
DOMINION AND PROVINCIAL RAILWAY ACTS. xv
copy thereof to the officer, servant or person, or that he signed a copy, or
that a copy thereof was posted in some place where his work or his duties, or
some of them, were to be performed."
N. B., 1891, ch. 18, sec. 56. Same as Ontario. Referring to sec. 69 of the
Act, same as sec. 89 of Ontario Act.
R. S. Q., Art. 5200. Same as Ontario. Referring to Art. 5142 of the Act,
same as sec. 89 of Ontario Act.
INSPECTING ENGINEERS.
26. Every company, and the officers and directors thereof, Information
shall afford to any inspecting engineer such information (t) as to ^ afforded
• i-i-i 11 n .... to inspecting
is within their knowledge and power in all matters inquired into engineer.
by him, and shall submit to such inspecting engineer all plans,
specifications, drawings and documents relating to the construc-
tion, (3) repair or state of repair of the railway or any portion
thereof. (2)
R. S. O., ch. 170, sec. 6 1. — (2) "Whether a biidge culvert or other part."
R. S. Q., Art. 5193. Same as Ontario.
N. B., 1891, sec. 48. Same as Ontario, excepting (i), "and full and true
explanations," (3) " and reconstruction."
R. S. N. S.j ch. 53. sec. 43 (i). Same as Ontario.
27. Every such inspecting engineer shall have the right, Engineer to
while engaged in the business of such inspection, to travel with- 136 convey«l
... . by company,
out charge on any of the ordinary trains running on the railway, etc.
and to use the telegraph wires and machinery in the offices of
or under the control of any such company.
R. S. O., ch. 170, sec. 62. "The inspector shall have the right to use the
telegraph wires and machinery in the offices of or under the control of such
railway company, for the purpose of communicating with any of the officers of
the company, or transmitting any order of such inspector relating to the rail-
way."
R. S. Q., Art. 5193 (2). Same as Dominion Act.
N. B., 1891, ch. 1 8, sec. 49. Same as Ontario.
R. S. N. S.,ch. 53, sec. 43 (2). Same as Dominion.
28. The operators or officers employed in the telegraph Telegraph
offices of or under the control of the company shall, without operators to
unnecessary delay, obey all orders of any such inspecting engi-OKiers
neer for transmitting messages ; and every such operator or
officer who neglects or refuses so to do shall, for every such
offence, be liable (on summary conviction) (i) to a penalty of
forty dollars.
R. S. O., ch. 170, sec. 63. Same as Dominion Act, excepting (i) omitting
"on summary conviction."
THE RAILWAY LAW OF CANADA.
R. S. Q., Art. 5193 (3). Same as Ontario.
N. B., 1891, ch. 18, sec 50. Same as Ontario.
R. S. N. S., ch. 53, sec. 43 (3). Same as Ontario.
Proof of his %Q. The production of instructions in writing, signed by the
chairman of the Railway Committee and the secretary thereof, or
by either of them, or by the Minister, shall be sufficient evidence
of the authority of such inspecting engineer.
R. S. O., ch. 170, sec. 64. " The authority of such inspector shall be
sufficiently evidenced by a paper in writing nominating him an inspector of
railways, or of any railway in particular, signed by the Commissioner of
Public Works."
R. S. Q., Ait. 5193 (4). "The authority of any such inspecting engi-
neer shall be sufficiently evidenced by instructions (signed by the chairman
of the Railway Committee, and countersigned by the secretary thereof.") (a)
N. B., 1891, ch. 18. Same as Ontario.
R. S. N. S., ch. 53, sec. 43 (4). Sameas Quebec, excepting («) " Signed
by the Commissioner of Public Works."
Penalty for 3O. Every person who willfully obstructs any inspecting
ructing engineer jn the execution of his duty is liable (on summary con-
gineer. viction) (i) to a penalty not exceeding forty dollars, (2) and
in default of payment thereof forthwith, or within such time as
the convicting justice or justices of the peace appoint, (3) to
imprisonment (with or without hard labor) (4) for any term
not exceeding three months. (5)
R. S. Q., Art. 5215. — (I) "On conviction before a justice of the peace
having jurisdiction in the place where the offence has been committed,"
(2) "for every such offence," (3) "the justice of the peace, or any
ether justice of the peace, having jurisdiction in the place where the offender
resides, may commit the offender," (4) omitting " with or without hard
labor," (5) additional; " but such commitment shall cease on payment of
the amount of the penalty; and every such penalty shall be returned to the
next ensuing sessions of the peace in the usual manner."
Company to
•have corpo-
rate powers.
INCORPORATION.
31. Every company incorporated under a special Act shall
l.e a body corporate, under the name declared in the special
Act, and shall be vested with all such powers, privileges and
immunities as are necessary to carry into effect the intention
and objects of this Act and of the special Act, and which are
incident to such corporation, or are expressed or included in
(" The Interpretation Act "). (i)
R. S. O., ch. 170, sec. 8.
R. S. Q., Art. 5131— (i) "Civil Code."
R. S. M., ch. 130, sec. 9 — (i) " Manitoba Interpretation Act."
R. S. N. S., ch. 53, sec. 6. Same as Dominion, excepting " or are
expressed or included in ' the interpretation act' " omitted.
DOMINION AND PROVINCIAL RAILWAY ACTS. xvii
OFFICES OF COMPANY.
33. The head office of the company shall be in the place office of the
designated in the special Act ; but the board of directors may company.
establish one or more offices in other places in Canada or else-
where.
PROVISIONAL DIRECTORS AND THEIR POWERS.
33. The persons mentioned by name as such in the special Provisional
Act are hereby constituted provisional directors of the com- directors and
pany, and of such provisional directors a majority shall
be a quorum, and the said provisional directors'shall hold office
as such until the first election of directors, and may forthwith
open stock books and procure subscriptions of stock for the
undertaking, and receive payments on account of stock sub-
scribed, and cause plans and surveys to be made, and deposit in
any chartered bank of Canada moneys received by them on Moneys de-
account of stock subscribed, — which moneys shall not be wilh-P?5,14?4 tobe
-.'.-.. withdrawn
drawn, except for the purposes of the undertaking, or upon the for certain
dissolution of the company for any cause whatsoever. purposes
only.
34. If more than the whole stock has been subscribed, the Allocation of
provisional directors shall allocate and apportion the authorized stock.
stock among the subscribers, as they deem most advantageous
and conducive to the furtherance of the undertaking.
CAPITAL.
35. The capital stock of the company, the amount of which Capital stock
shall be stated in the special Act, shall be L! vHed into shares ofand shafes-
one hundred dollars each ; and the money so raised shall be
applied, in the first place, to the payment of all fees, expenses
and disbursements for procuring the passing of the special Act, Application
and for making the surveys, plans and estimates of the works thereof.
authorized by the special Act ; and all the remainder of such
money shall be applied to the making, equipping, completing
and maintaining of the said railway and other purposes of the
undertaking.
36. So soon as twenty-five per cent, of the capital has been First meeting
subscribed, and ten per cent, of the amount subscribed has been
paid into some chartered bank in Canada, the provisional
p,
XV111
THB RAILWAY LAW OF CANADA.
directors shall call a meeting of the shareholders of the com-
pany at the place where the head office is situate, at such time
Notice there- as thev tmnk proper,— giving the notice prescribed by section
of.
Election of
directors.
increased.
forty-one of this Act, — at which meeting the shareholders who
have paid at least ten per cent, on the amount of stock subscribed
for by them shall, from the shareholders possessing the qualifi-
cations hereinafter mentioned, elect the number of directors pre-
scribed by the special Act.
R. S. Q., Ait 5134 (25). " No owner or holder of shares in any iron or
wooden railway company, incorporated by Act of the Legislature of this
Province, shall, in any case, v< te, by reason of any of his shares, unless he
has paid upon iuch share an amount of at least ten per cent. ''
How capital &?' ^ ne original capital stock of any company may (with
stock may be the approval of the Governor in Council) (i) be increased,
from time to time, to any amount, if such increase is sanctioned
by a vote, in person or by proxy, of the shareholders who hold
at least two-thirds in amount of the subscribed stock of the
company, at a meeting expressly called by the directors for that
purpose, by a notice in writing to each shareholder, delivered
to him personally, or properly directed to him, and deposited in
the post office (2) at least twenty days previously to such
meeting, stating the time, place and object of such meeting,
and the amount of the proposed increase ; and the pro-
ceedings of such meeting shall be entered in the minutes of
the proceedings of the company, and thereupon the capital stock
may (with such approval) (3) be increased to the amount
sanctioned by such vofe. (4)
R. S. O., ch. 170, sec. 37 (6). — (1) Omitting '• with the approval of the
Governor in Council," (2) '' nearest to his place of residence," (3) Omitting
" with such approval."
R. S. Q., Art. 5132 (19) (20). Same as Dominion Act, excepting (l)
omitting "with the approval of the Governor in Council," (3) omitting
" with such approval."
R. S. M., ch. 130, sec. 94. Same as Ontario.
N. B., 1891, ch. 18, sec. 29 (6). Same as Ontario.
R. S. N. S., ch. 53, sec. 7 (19). Same as Dominion, excepting (i).& (3)
omitted. (4) " Provided that no increase of the Capital Stock shall be
made without an act of the Legislature being first obtained therefor."
When and 38. Municipal corporations in any Province in Canada duly
how munici- empowered so to do by the laws of the Province, and subject to
pal corpora- , . . . ., ,
tions may the limitations and restrictions in such laws prescribed, may sub-
take stock. scribe for any number of shares in the capital stock of the corn-
Entry on
minutes.
DOMINION AND PROVINCIAL RAILWAY Acrs. xix
pany ; and the mayor, warden, reeve or other head officer of any Represent-
such corporation holding stock to the amount of twenty thousandation.of cor"
Derations,
dollars, or upwards, shall be ex-officio one of the directors of the
company, in addition to the number of directors authorized by
the special Act (unless in such special Act provision is made for
the representation of such corporation on the board thereof), (i)
R. S. O., ch. 170, sec. 39 (i). Municipal corporations in this Province
may subscribe for any number of shares in the capital stock of, or lend to or
guarantee the payment of any sum of money borrowed by the company from
any corporation or person, or endorse or guarantee the payment of any deben-
ture to be issued by the company for the money by them borrowed, and may
assess and levy from time to time upon the whole ratable property of the
municipality a sufficient sum for them to discharge the debt or engagement so
contracted, and for the like purpose may issue debentures payable at such
times .and for such sums respectively, not less than $20, and bearing or not
bearing interest, as such municipal corporation thinks meet.
Sec. 2. Any such debenture issued, endorsed or guaranteed shall be
valid and binding upon the municipal corporation, if signed or endorsed, and
countersigned by the officer or person, and in such manner and form as dir-
ected by any by-law of the corporation, and the seal of the corporation thereto
shall not be necessary, nor the observance of any other form with regard to
the debentures than as directed in the by-law.
Sec. 3. No municipal corporation shall subscribe for stock or incur any
debt or liability under this Act or the special Act, unless and until a by-law
to that effect has been duly made, and adopted, with the consent first had of
a majority of the qualified electors of the municipality, to be ascertained in
the manner provided by 1 he Municipal Act, after public advertisement
thereof containing a copy of such proposed by-law, inserted at least four times
in each newspaper printed within the limits of the municipality ; or if none be
printed therein, then in some one or more newspapers printed in the nearest
city or town thereto, and circulated therein, and also put up in at least four of
the most public places in each municipality. See also cap. 184, s. 634. R.
S. O.
Sec. 4. The mayor, warden or reeve, or other chief officer of a municipal
corporation subscribing for and holding stock in the company to the amount
of $20,000, or upwards, shall \&ex-offi:io one of the directors of the company,
in addition to the number of directors authorized by the special Act, and
shall have the same rights, powers and duties as any of the directors of the
company. See also cap. 184, s. 635. R. S. O.
Sec. 5. No such mayor, warden, reeve or other chief officer or other per-
son representing any municipality (i) having or taking stock in any railway
company shall, directly or indirectly, vote on the election or appointment of
the private directors of any railway company (incorporated previous to or
during the Session held in the sixteenth year of Her Majesty's reign, unless
the specialjAct of incorporation of such company expressly provides therefor).
(2)
R. S. Q., Art. 5138 (2), same as Dominion Act, excepting (i) omitting
" unless in such special Act provision is made for the representation of such
corporation on the board thereof; " and the following additional : " When,
in a parish comprising a parish municipality and a village municipality, the
council of both municipalities shall have agreed as to the subscription of
shares to a railway company, which entitles to a representation on the board
xx THE RAILWAY LAW OF CANADA.
of direction of such company, the mayor of each such two municipalities shall,
alternately, be a director ex-officio, in such company, each for one year, com-
mencing and changing on the first of January of each year, and to be com-
menced by the mayor of the parish municipality ; provided that the amount
of stock or shares thus owned by each of the two municipalities be at least
ten thousand dollars."
Sec. 3. " Any such directors shall have the same rights as directors of
municipalities which have subscribed for twenty thousand dollars of shares."
R. S. Q., Art. 5134 (23), same as R. S. O., ch. 170, sec. 39 (5), excepting
(I) additional "or corporation of any town," and omitting (2).
R. S. N. S., ch. 53, sec. 23 (2). Same as Dominion, excepting (i) " But
in case any such Municipal Corporation shall appoint some person specially
to the office of Director in the Company, such person so specially appointed
shall act as Director of the Company ex-officio instead of the mayor, reeve or
warden, as in this section provided."
Taid up stock 39. The directors of the company elected by the shareholders
1SS" may ma^e and issue, as paid up stock, shares in the company,
cases. whether subscribed for or not, and may allot and hand over such
stock in payment for right of way, plant, rolling stock or mater-
ials of any kind, and also for the services of contractors and en-
gineers j and such issue and allotment of stock shall be binding
on the company, and such stock shall not be assessable for calls.
N. B., 1891, ch. 18, sec. 29 (8).
MEETINGS OF SHAREHOLDERS.
Annual meet- 4:0. A general meeting of the shareholders for the election of
ings- directors and for the transaction of other business connected
with or incident to the undertaking, to be called " the annual
meeting," shall be held annually on the day mentioned in the
Special meet- special Act ; and other general meetings, to be called " special
In8s> meetings," may be called at any time by the directors, or by
shareholders representing at .least one-fourth in value of the sub-
scribed stock, if the directors, having been requested by such
shareholders to convene such special meeting for twenty-one
days thereafter fail to call such meeting ;
Where to be 2. All general meetings, whether annual or special, shall be
held. held aj the head office of the company.
R. S.O., ch. 170, sec. 32. "The shareholders may assemble together at
general meetings, for purposes connected with or belonging to the undertak-
ing, and at any annual general meeting, and may elect directors in the man-
ner provided by (sec. 34). (i)
R. S. Q., Art. 5133. Same as Ontario, sec. 32, excepting (i) "the fol-
lowing article " (5134).
DOMINION AND PROVINCIAL RAILWAY ACTS. xxi
Also " after thirty days following the general annual meeting of the share-
holders for the election of directors of the different companies, which is held
on the day fixed by the charter of each company, it shall be the duty of the
board of directors and of the secretary to call a general meeting of the share-
holders, whenever required to do so, by a requisition in writing signed by one
or more shareholders, holding at least one-half of the subscribed capital stock
of the company, for the transaction of such business as may beset forth in the
said requisition, which business shall be mentioned in the notice calling the
meeting."
R.S.M., ch. 130, sec. 50. Same as Ontario, sec. 32, excepting (i) "this
Act."
N. B., 1891, ch. 18, sec. 24. Same as Ontario, sec. 32, excepting (I)
"sec. 26."
R. S. N. S., ch. 53, sec. 18. Same as Ontario.
41. At least four weeks' public notice of any meeting shall Notice of
be given by advertisement published in the Canada Gazette^ andmeetinSs-
in at least one newspaper published in the place where the head
office is situate, — in which notice shall be specified the place
and the day and the hour of meeting ; all such notices shall be
published weekly, and a copy of such Gazette containing such Evidence,
notice shall, on production thereof, be evidence of the sufficiency
of such notice.
R. S. O., ch. 170, sec. 33. " The method of calling general meetings, and
the time and place of the first meeting of shareholders for the appointment of
directors, shall be determined and settled in the special Act."
R. S.M., ch. 130, sec. 51. Same as Ontario.
N. B., 1891, ch. l8,sec. 25, Same as Ontario.
R.S.Q., Art. 5134 (5). Same as Ontario, and additional "nevertheless,
if the number of shareholders do not exceed fifty, and if they all reside in the
Dominion, such meetings, besides in the manner prescribed by the charter,
may be convened by a registered letter, postage paid, and deposited in the
post office at least fifteen days before that of the meeting."
" All notices of meetings of the company shall be published weekly in the
Quebec Official Gazette, which shall be conclusive evidence of the sufficiency
of such notice."
R. S. N. S., ch. 53, sec. 20 (2). Same as Quebec, latter part.
42. Any business connected with or incident to the under. What busi-
taking may be transacted at an annual meeting, excepting such"658 m^
business as by this Act or the special Act is required to be
transacted at a special meeting ; but no special meeting shall
enter upon any business not set forth in the notice upon which it
is convened.
43. The number of votes to which each shareholder shall be Votes on
entitled, on every occasion when the votes of the shareholders shares*
are to be given, shall be in the proportion of the number of
xxn
THE RAILWAY LAW OF CANADA.
shares held by him (and on which all calls due have been
paid), (i)
R. S.O., sec. 34 (5). Same as Dominion, excepting (i)'omitting "and
on which all calls due have been paid, " and substituting l< unless otherwise
provided by the special Act.''
R. S.Q., 5134 (6). Same as Ontario.
R. S. M., ch. 130, sec. 56. Same as Ontario.
N. B., 1891, ch. 18, sec. 26 (5). Same as Dominion, excepting additional
" unless provided by special Act."
R. S. N. S., ch. 53, sec. 19 (6). Same as Ontario.
Shareholders 44. Every shareholder, whether resident in Canada (i) or,
proxy™'' y elsewhere, may vote by proxy, if he sees fit, and if such proxy
produces from his constituent an appointment in writing, in
the words or to the effect following, that is to say : —
Form of I, of ,- one of the share-
proxy, holders of the do hereby appoint
of , to be my proxy, and in my absence, to vote or
give my assent to any business, matter or tiling relating to the
undertaking of the said that is mentioned or pro-
posed at any meeting of the shareholders of the said company ;
(2) in such manner as he, the said thinks proper. In wit-
ness whereof, I have hereunto set my hand and seal, the
day of in the year
R. S. O., ch. 170, sec. 34 (6). — (i) "this Province."
R. S. Q., Art. 5134 (7). — (i) "this Province, (2) "or any of them."
R. S. M., ch. 130, sec. 57. Same as Quebec.
N. B., 1891, ch. 18, sec. 26 (6).— (i) " this Province."
R. S. N. S., ch. 53, sec. 19 (7). Same as Dominion.
Votes by 45. The votes by proxy shall be as valid as if the consti-
proxy valid, tuents had voted in person ; and every matter or thing proposed
or considered at any (i) meeting of the shareholders shall be
determined by the majority of votes and proxies then present
Majority to and given ; and all decisions and acts of any such majority shall
govern. bind the company and be deemed the decisions and acts of the
company.
R. S. O., ch. 170, sec. 34 (7). (i) " public."
R. S. Q., Art. 5134 (8). Same as Ontario.
R. S. M., ch. 130, sec. 58. Same as Ontario.
N. B. , 1891, ch. 18, sec. 26 (7). Same as Ontario.
R. S. N. S., ch. 53, sec. 19 (8). Same as Ontario.
DOMINION AND PROVINCIAL RAILWAY ACTS. xxiii
PRESIDENT AND DIRECTORS.
46. A board of directors of the company to manage its affairs, Election of
the number of whom shall be stated in the special Act, and aboard of di-
majority of whom shall form a quorum, shall be chosen at the
annual meeting; and if such election is not held on the day ap-
pointed therefor, the directors shall cause such election to be
held at a special meeting duly called for that purpose within as
short a delay as possible after the day so appointed.
R. S. O., ch. 170, sec. 34 (i). "A board of directors of the undertaking,
to manage its affairs (the number whereof shall be stated in the special Act)
(a) shall be chosen annually by a majority of the shareholders voting at such
election at a general meeting, the time and place for which shall be appointed
by the special Act ; and if the election is not held on the day so appointed,
the directors shall notify and cause the election to be held within (thirty days
after the day) (<5) appointed."
R. S. M., ch. 130, sec. 52. Same as Ontario.
R. S. Q., Art. 5184 (i). Same as Ontario, excepting (<5) substitute "as
short a delay as possible after the day so appointed."
- N. B., 1891, ch. 18, sec. 26. Same as Ontario, excepting (#) substitute
"the uumber of whom shall not exceed seven, as may be fixed by by-law of
the company," also (6) substitute " as soon as practicable after the day ap-
pointed."
R. S. N. S.,ch. 53, sec. 19 (i). Same as Quebec.
47- No person shall vote on such subsequent day except As to votes at
those who would have been entitled to vote if the election had adJ°urned
meeting,
been held on the day when it should have been held.
R. S. O., ch. 170, sec. 34 (2).
R. S. Q., Art. 5134 (2).
R. S. M., ch. 130, sec. 53.
N. B., 1891, ch. 18, sec. 26 (2).
R. S. N. S., ch. 53, sec. 19 (2).
48. Vacancies in the board of directors shall be filled in the Vacancies,
manner prescribed by the by-laws. now filled-
R. S.O., ch. 170, sec. 34 (3).
R.S.Q., Art. 5134 (3).
R. S. M., ch. 130, sec. 54.
N. B., i89i,ch. 18, sec. 26 (3).
R. S. N. S., ch. 53, sec. 19 (3).
49. No person shall be a director, unless he is a shareholder, Qualification
owning (twenty shares of) (i) stock absolutely in his own right of director,
(and has paid all calls due thereon), (2) and is qualified to vote
for directors at the election at which he is chosen.
R. S. O., ch. 170, sec. 34 (4)— (i) Omitted, (2) omitted.
R. S. Q. , Art. 5134 (4). Same as Ontario.
xxiv THE RAILWAY LAW OF CANADA.
R. S. M., ch. 130, sec. 55. Same as Ontario.
N. B., 1891, ch. 18, sec. 26 (4). Same as Ontario.
R. S. N. S., ch. 53, sec. 19 (4). Same as Ontario.
Term of office. 5O. The directors appointed at the last election, or those ap-
pointed in their stead in case of vacancy, shall remain in office
until the next ensuing election of directors.
R. S. O., ch. 170, sec. 34 (8). "The directors first appointed, or those ap-
pointed in their stead, in case of vacancy, shall remain in office until the next
annual election of directors at the time appointed therefor, at which time an
annual general meeting of the shareholders shall be held, to choose directors
for the ensuing year, and generally to transact the business of the company."
R. S. Q., Art. 5134 (9). Some as Dominion Act.
R. S. M., ch. 130, sec. 59. Same as Ontario.
N. B., 1891, ch. 18, sec. 26 (8). " The directors first appointed, or those
appointed in their stead, in case of vacancy, shall remain in office until the
next annual election of directors."
R. S. N. S., ch. 53, sec. 19 (9).
Vacancies by 51. In case of the death, absence or resignation of any of the
death, etc., directors, others may (unless otherwise prescribed by the by-
laws) (i) be appointed in their stead by the surviving directors ;
but if such appointment is not made, such death, absence or
resignation shall not invalidate the acts of the remaining direc-
tors.
R. S. O., ch. 170, sec. 34 (9)— (i) Omitted.
R. S. Q., Art. 5134 (10). Same as Ontario.
R. S, M., ch. 130, sec. 60. Same as Ontario.
N. B., 1891, ch. 18, sec. 26 (9). Same as Ontario.
R. S. N. S., ch. 53, sec. 19 (10). Same as Ontario.
President. 52. The directors shall, at their first or at some other meet-
ing after the (election) (i) elect one of their number to be the
president of the company, who shall always, when present, be
the chairman of and preside at all meetings of the directors, and
shall hold his office until he ceases to be a director, or until an-
Vice-presi- other president has been elected in his stead ; and they may, in
dent. iike manner, elect a vice-president, who shall act as chairman
in the absence of the president.
R. S. O., ch. 170, sec. 34 (10) — (i) .Substitute " day appointed for the an-
nual general meeting,"
R. S. Q., Art. 5134 (il). Same as Dominion Act.
R. S. M., ch. 130, sec. 61. Same as Ontario.
N. B., 1891, ch. 18, sec. 26 (10). Same as Ontario.
R. S. N. S., ch. 53, sec. 19 (li),as amended by 51 Vic., ch. 20. Same
as Dominion.
DOMINION AND PROVINCIAL RAILWAY ACTS. xxv
53. The directors, at any meeting at which not less than a Quorum,
quorum (i) are present, shall be competent to use and exercise
all and any of the powers vested in the directors.
R. S. O., ch. 170, sec. 34 (n) — (I) Additional " to be settled by the
special Act."
R. S. Q., Art. 5134 (12). Same as Ontario.
R. S. M., ch. 130, sec. 62. Same as Ontario.
N. B., 1891, ch. 18, sec. 26 (n). — (i) " which quorum shall consist of a
majority of the Board."
R. S. N. S., ch. 53, sec. 19 (12).
54. The act of a majority of a quorum of the directors pres- Acts of ma-
ent at any meeting regularly held shall be deemed the act of the ^°" y
directors.
R. S. O., ch. 170, sec. 34 (12).
R. S. M., ch. 130, sec. 63.
R. S. Q., Art. 5134 (13).
N. B., 1891, ch. 18, sec. 26 (12).
R. S. N. S., ch. 53, sec. 19 (13).
55. No director shall have more than one vote except the Votes of di-
chairman, who shall, incase of a division'of equal numbers, have "
the casting vote.
R. S. O., ch. 170, sec. 34 (13).
R. S. Q., Art. 5134(14)-
R. S. M., ch. 130, sec. 64.
N. B., 1891, ch. 18, sec. 26 (13).
R. S. N. S., ch. 53, sec. 19 (14).
56. The directors shall be subject to the examination and Directors sub-
control of the shareholders at their annual meetings, and shall j"* to share-
be subject to all by-laws of the company, and to the orders andby-]aws.
directions from time to time made (or given) (i) at the annual
or special meetings ; but such orders and directions shall not be
contrary to any express directions or provisions of this Act or of
the special Act.
R. S. O., ch. 170, sec. 34 (14)— (i) Omitted.
R. S. Q., Art. 5134 (15). Same as Ontario.
R. S. M., ch. 130, sec. 65. Same as Ontario.
N. B., 189 1, ch. 18, sec. 26 (14) Same as Ontario.
R. S. N. S., ch. 53, sec. 19 (15). Same as Ontario.
57. No person who holds any office, place or employment in, Disabjiit of
or who is concerned or interested in any contract under or with officers, con-
the company, or is surety for any contractor, shall be capable of tractors and
being chosen a director, or of holding the office of director, nor
xxvi THE RAILWAY LAW OF CANADA.
shall any person who is a director of the company enter into, or
be directly or indirectly, for his own use and benefit, interested
in any contract vvith the company, other than a contract which
relates to the purchase of land necessary for the railway, or be
or become a partner of or surety for any contractor wilh the com-
pany.
R. S. O., cli. 170, sec. 34 (15). No person holding any cffice, place or
employment, in, or being concerned or interested in any contracts under or
with the company, shall be capable of being chosen a director, or of holding
the office of director, nor shall any person, being a director of the company,
enter into or be directly or indirectly, for his own use and benefit, interested
in any contract with the company, not relating to the purchase of land neces-
sary for the railway, or be or become a partner of any contractor with the
company (and in the event of any such contract made since the 3Oth day of
June, 1858, or made after this Act takes effect, by or on behalf of any direc-
tor, an action shall lie in any Court of competent jurisdiction against such
director, at the suit of any shareholder of the company, for the benefit of the
funds thereof, for the whole amount of profit accruing to' such director from
the contract so made or fulfilled), (i)
R. S. Q., Art. 5134 (16). Same as Ontario, excepting latter pait (^omit-
ted.
R. S. M., ch. 130, sec. 66. Same as Ontario, excepting in place of " 3oth
day of June, 1858, or made after this Act takes effect," read " 25th day of
May, 1 88 1."
Also after " Court " add " of common law."
N. B., 1891, ch. 18, sec. 26 (15). Same as Ontario, excepting omission of
" 30th day of June, 1858."
R. S. N. S., ch. 53, sec. 19 (16). Same as Quebec.
By-laws to be 58. The directors shall make by-laws for the management
made. an(j disposition of the stock, property, business and affairs of the
company, not inconsistent with the laws of (Canada), (i) and for
the appointment of all officers, servants and artificers, and pre-
scribing their respective duties.
R. S. O., ch. 170, sec. 34 (17) — (i) " this Province."
R . S . Q. , Art . 5 1 34 ( 1 7)— ( i ) Read ' ' law " instead of ' « laws of Canada. "
R. S. M., ch. 130, sec. 67. Same as Ontario.
N. B., 1891, ch. 18, sec. 26 (16). Same as Ontario.
R. S. N. S., ch. 53, sec. 19 (17)- Same as Quebec.
Appointment **^. The directors shall, from time to time, appoint such
of officers and officers as they deem requisite, and shall take sufficient security,
* ^Y one or more (i) bonds (or by the guarantee of any society or
them. ' joint stock company incorporated and empowered to grant guar-
antees, bonds, covenants or policies for the integrity and faithful
accounting of persons occupying positions of ttust, or for other
like purprfe?, as they deem expedient) (2) from the managers and
DOMINION AND PROVINCIAL RAILWAY ACTS. xxvii
officers for the time being, for the safe keeping and accounting
for by them respectively of the moneys raised by virtue of this
Act and the special Act, and for the faithful execution of their
duties, as the directors think proper.
R. S. O-, ch. 170, sec. 34 (17). — (i) Adi " penal," (2) replace by " or
otherwise."
R. S. Q., Art. 5134 (iS). — (2) Replace by "or by the guarantee of the
Canada Guarantee Company, or of any society incorporated for like purposes
or otherwise, as they may deem expedient. "
R. S. M., ch. 130, sec. 68. Same as Ontario.
N. B., 1891, ch. 18, sec. 26 (17). Same as Ontario.
R. S. N. S., ch. 153, sec. 19 (18). Same as Quebec.
6O. In case of the absence or illness of the president, the vice- When vice-
president shall have all the rights and powers of the president, and ^ail ^
may sign all notes, bills, debentures and other instruments, and
perform all acts which, by the regulations and by-laws of the com-
pany, or by the (special Act) (i) are required to be signed, per-
formed and done by the president.
R. S. O., ch. 170, sec. 34 (18). — (i) " Acts incorporating the Company."
R. S. Q., Art. 5134 (19). Same as Dominion Act.
R. S. M., ch. 130, sec. 69. Same as Ontario.
N. B., 1891, ch. 18, sec. 26 (18). Same as Ontario.
R. S. N. S., ch. 53, sec. 19 (19). Same as Ontario.
61- 1 he directors may at any meeting (of directors), (i) require Absence of
the secretary to enter such absence or illness among the pro- ?residtentJin0"n
ceedings of such meeting ; and a certificate thereof, signed by the minutes, etc
secretary, shall be delivered to any person (2) requiring the same,
on payment to the treasurer of one dollar, and such certificate
shall be taken and considered as prima facie evidence of such
absence or illness, at and during the period in the said certificate
mentioned, in all proceedings in courts of justice or otherwise.
R. S. O., ch. 170, sec. 34 (19),— (i) Omitted, (2) "or persons."
R. S. Q., Art. 5134 (20).— (i) Omitted.
R. S. M., ch. 130, sec. 70. Same as Ontario.
N. B., 1891, ch. 18, sec. 26 (19). Same as Ontario.
R. S. N. S., ch. 53, sec. 19 (20). Same as Ontario.
62. The directors shall cause to be kept and, annually, on the Annual state-
thirtieth day of June, (i) to be made up and balanced, a true, ment to be
exact and particular account of the moneys collected and received
by the company or by the directors or (managers) (2) thereof, or
otherwise, for the use of the company, and of the charges and ex-
XXV111
THE RAILWAY LAW OF CANADA.
penses attending the erecting, making, supporting, maintaining
and carrying on of the undertaking, and of all other receipts and
expenditures of the company or the directors.
R. S. O., ch. 170, sec. 34 (20).— (I) "December."
R. S. Q., Art. 5134 (21). Same as Ontario.
R. S. M., ch. 130, sec. 71. Same as Ontario, excepting (2) " management."
N. B., 1891, ch. 18, sec. 26 (20). Same as Ontario.
R. S. N. S., ch. 53, sec. 19 (21). Same as Ontario.
CALLS.
Calls and 63. The directors may, from time to time, make such calls of
money upon the respective shareholders, in respect of the amount
of capital respectively subscribed or owing by them, as they deem
necessary ; and at least thirty days' notice shall be given of each
call, — and no call shall exceed the amount prescribed in the spe-
cial Act, or be made at a less interval than two 'months from the
previous call, — nor shall a greater amount be called in, in any
More than one one year, than the amount prescribed in the special Act (but
call by one nothing herein contained shall prevent the directors from mak-
ing more than one call by one resolution of the board : Provided,
that the intervals between such calls, the notices of each call, and
the other provisions of this Act and of the special Act, in respect
of calls, are duly observed and given), (i)
R. S. O., ch. 170, sec. 35 (i). — (i) Omitted.
R. S. Q., Art. 5135 (i). Same as Ontario.
li. S. M., ch. 130, sec. 72. Same as Ontario.
N. B., 1891, ch. 18, sec. 27. Same as Dominion Act.
R, S. N. S., ch. 53, sec. 20(1). Same as Ontario.
Publication 64:- All notices of calls upon the shareholders of the company
of notice of snan be published as provided by section forty-one of this Act.
Cftll
and a copy of the Gazette therein mentioned shall, on production
thereof, be evidence of the sufficiency of such notice.
R. S. O., ch. 170, sec. 35 (2). " All notices of meetings or of calls upon
the shareholders of the company shall be published weekly in the Ontario (a)
Gazette, and the said Gazette shall, on production thereof, be conclusive
evidence of the sufficiency of such notices."
R. S. Q., Art. 5135 (2). Same as Ontario, excepting " meetings" omitted.
R. S. M., ch. 130, sec 102. " All notices of meetings or of calls upon the
shareholders of the company shall be published in the Manitoba Gazette for at
least thirty days ; and the said Gazette shall, on production thereof, be con-
clusive evidence of the sufficiency of such notices."
N. B., 1891, ch. 18, sec. 27 (2). Same as Ontario, excepting (a) " Royal
Gazette."
R. S. N. S., ch. 53, sec. 20 (2;. Same as New Brunswick.
Proviso.
DOMINION AND PROVINCIAL RAILWAY ACTS. xxix
65. Every shareholder shall be liable to pay the amount of the Payment of
calls so made in respect of the shares held by him, to the persons calls-
and at the times and places from time to time appointed by the
company or the directors.
R. S. O., ch. 170, sec. 35 (3).
R. S. Q., Art. 5135 (3).
R. S. M.,ch. 130, sec. 73.
N. B., 1891, ch. 18, sec. 27 (3).
R. S. N. S., ch. 53, sec. 20 (3).
66. If, on or before the day appointed for payment of any call, Interest on
any shareholder does not pay the amount of such call, he shall overdue calls,
be liable to pay interest for the same, at the (i) (rate of six per
centum per annum) (2) from the day appointed for the payment
thereof to the time of the actual payment.
R. S. O., ch. 170, sec. 35 (4).— (I) "Legal," (2) " for the time being."
R. S. Q., Art. 5135 (4). Same as Dominion Act, omitting "at the rate of
six per centum per annum."
R. S. M., ch. 130, sec. 74. Same as Ontario.
N. B., 1891, ch. 18, sec. 27 (4). Same as Dominion Act.
R. S. N. S., ch. 53, sec. 20 (4). Same as Dominion.
67. If, at the time appointed for the payment of any call, any Recovery by
shareholder fails to pay the amount of the call, he maybe sued sult'
for the same in any court of (i) competent jurisdiction, and the
same shall be recoverable, with lawful interest (2) from the day
on which the call became payable.
R. S. O., ch. 170, sec. 35 (5).
R.S.Q., Art. 5135(5).
R. S. M., ch. 130, sec. 75. — (i) "law or equity having."
N. B., 1891, ch. 18, sec. 27 (5). — (2) "at the rate of six per cent."
R. S. N. S., ch. 53, sec. 20 (5). Same as Dominion.
68. In any action (or suit) (i) to recover any money due upon What allega-
any call, it shall not be necessary to set forth the special matte r tionsonly;
, . _. . , , - , necessarv in
but it shall be sufficient to declare that the defendant is the suits for 'calls.
holder of one share or more, stating the number of shares, and
is indebted in the sum of money to which the calls in arrear
amount, in respect of one call or more, upon one share or more,
stating the number and amount of each of such calls, whereby an
action has accrued to the company. (2)
R. S. O., ch. 170, sec. 35 (6). — (i) Omitted, (2) additional "by virtue of
the special Act."
R. S. Q., Art. 5135(6). Same as Dominion Act, excepting (2) "by virtue
of the charter."
R. S. M., ch. 130, sec. 76. Same as Quebec.
N. B., 1891, ch. 18, sec. 27 (6). Same as Ontario.
R. S. N. S., ch. 53, sec. 20 (6). Same as Quebec.
THE RAILWAY LAW OF CANADA.
Declaration
of div idcnd.
Rate of
dividend.
Dividend not
to impair cap-
ital, etc.
But interest
may be paid
on certain
sums.
DIVIDENDS AND INTEREST.
69. At the annual meeting of the shareholders of the com-
pany, a dividend maybe declaied out of the net profits of the
undertaking.
R. S. O., cb. 170, sec. 36 (i). "At the general meetings (a) of the share-
holders of the undertaking, from time to time holden, a dividend shall be made
out of the clear piofits of the undertaking, unless such meetings declare other-
wise." '
R. S. Q., Art. 5136 (i). Same as Ontario, excepting (a) "meetings " in
singular.
R. S. M.,ch. 130, tec. 84. Same as Ontario .
N. B., 1891, ch. 18, sec. 28 (i). Same as Ontario.
R. S. N. S., ch. 53, sec. 21 (i). Same as Ontario.
70. Such dividend shall be at and after the rate of so much
per share upon the several shares held by the shareholders in the
stock of the company, as such meeting thinks fit to appoint or
determine.
R. S. O., ch. 170, sec. 36 (2).
R. S. Q., Art. 5136(2).
R. S. M., ch. 130, sec. 85.
N. B., 1891, ch. 18, sec. 28 (2).
R. S. N. S., ch. 53, sec. 21 (2).
71. No dividends shall be declared whereby the capital of the
company is in any degree reduced or impaired, or be paid out
of such capital, nor shall any dividend be paid, in respect of any
share, after a day appointed for payment of any call for money
in respect thereof, until such call has been paid ; but the
directors may, in their discretion, until the railway is completed
and opened to the public, pay interest (at any rate not exceed-
ing six per centum per annum} (i) on all sums called up in
respect of the shares, from the respective days on which the
same have been paid ; and such interest shall accrue and be
paid at such times and places as the directors appoint for that
purpose.
R. S. O., ch. 170, sec. 36 (3) (4). — (i) " At any rate authorized by the laws
of Canada, but not exceeding six per centum per annum."
I P. S.Q., Art. 5136 (3) (4). — (i) " At any rate per annum."
C R. S. M., ch. 130, sees. 86, 87. Same as Ontario, substituting " eight per
centum" for " six per centum."
N. B., 1891, ch. 18, sec. 28 (3) (4). Same as Dominion Act.
R. S. N. S., ch. 53, sec. 21 (3) (4).
73. No interest shall accrue to (any shareholder) (i) in
respect of any share upon which any call is in arrear, or in res-
pect to any other share held by such shareholder while such call
remains unpaid. (2)
DOMINION AND PROVINCIAL RAILWAY ACTS. xxxi
R. S. O., ch. 170, sec. 36 (5). — (i) "The proprietors of any share."
(2) additional " nor shall any interest be paid or taken from the capital sub •
scribed."
R. S. Q., Art. 5136 (5). — (i) "The proprietors of any share."
R. S. M., ch. 130, sec. 88. Same as Ontario.
N. B., 1891, ch. 1 8, sec. 28 (5). Same as Ontario.
R. S. N. S., ch. 53, sec. 21 (5). Same as Quebec.
SHARES.
73. Shares in the (company) (i) may, by the (holders shares may
thereof) (2) be sold and (transferred)^) by instrument in writing, be transferred
made in duplicate, — one part of which shall be delivered to the
directors, to be filed and kept for the use of the company, and
an entry whereof shall be made in a book to be kept for that
purpose ; and no interest (or dividend) (4) on the shares trans-
ferred shall be paid (to) (5) the purchaser until such duplicate
is so delivered, filed arid entered.
R. S. O., ch. 170, sec. 37(1). — i) "undertaking," (2) '-'parties," (3)
" disposed of, " (4) omitted.
R. S. Q., Art. 5137. Same as Ontario.
R. S M., ch. 130, sec. 89, Same as Ontario, excepting (5) "by"?
N. B., 1891, ch. 18, sec. 29 (i). Same as Dominion, excepting (i)
"undertaking," (2) "parties," (3) " disposed of."
R. S. N. S., ch. 53, sec. 22 (i). Same as Ontario excepting (4) remains.
74:. (Transfers) (i) (except in the case of fully paid up Form of
shares) (2) shall be in the form following, or to the like effect, transfer,
varying the names and descriptions of the contracting parties as
the case requires, that is to say : —
I, A. B., in consideration of the sum of , paid to
me by C. D., hereby sell and transfer to him share (or
shares) of the stock of the , to hold to him,
the said C. D., his heirs, executors, administrators, and assigns
(or successors and assigns, as the case may be) (3) subject to
the same rules and orders and on the same conditions that I
held the same immediately before the execution hereof. And
I, the said C. D., do hereby agree to accept of the said — share
(or shares) subject to the same rules, orders and conditions.
Witness our hands this day of in the year
18 .
(2. In the case of fully paid shares the transfer may be in As to paid-up
such form as is prescribed by by-law of the company.) (4) shares.
xxxii THE RAILWAY LAW OF CANADA.
R. S. O, ch. 170, sec. 37 (2). (i) " sales," (2) omitted, (3) omitted, (4)
omitted.
R. S. Q., Art. 5137 (2). Same as Ontario.
R. S. M.,ch. 130,860.90. Same as Ontario, excepting (i) "transfers"
instead of " sales."
N. B., 1891, ch. 18, sec. 29 (2). Same as Ontario.
R. S. N. S., ch. 53, sec. 22 (2). Same as Ontario.
Shares per- 75. The stock of the company shall be personal property;
sonal proper- but no shares shall be transferable until all previous calls
tv etc
thereon have been (fully) (i) paid up, or until the said shares
have been declared forfeited for the non-payment of calls thereon ;
and no transfer of less than a whole share shall be valid.
R. S. O., ch. 170, sec. 37 (3).
R. S. Q., Art. 5137 (3).
R. S. M., ch. 130, sec. 91. — (j) Omitted.
N. B., 1891, ch. 18, sec. 29 (3).
R. S. N. S., ch. 53, sec. 22 (3).
Transmission 76. If any share in the capital stock of the company is
otherwise transmitted by the death, bankruptcy or last will, donation or
than by trans- J . J
fer. testament, or by the intestacy, of any shareholder, or by any
lawful means other than the transfer hereinbefore mentioned,
the person to whom such share is transmitted shall deposit in
the office of the company a statement in writing, signed by him,
which shall declare the manner of such transmission, together
with a duly certified copy or probate of such will, donation or
testament, or sufficient extracts therefrom, and such other docu-
ments or proof as are necessary ; and without such proof the
person to whom the share is so transmitted, as aforesaid, shall
not be entitled to receive any part of the profits of the company,
or to vote in respect of any such share as the holder thereof.
R. S. O., ch. 170, sec. 37 (4).
R. S. (.'., art. 5137 (4).
R. S. M., ch. 130, sec. 92.
N. B., 1891, ch. 18, sec. 29 (4).
R. S. N. S., ch. 53, sec. 22 (4).
Company not 77, (As amended by 55-56 Vic^ch. 27, sec. 2.) The company
to trusts etc. s^a^ not ^e bound to see to the execution of any trust, whether
express, implied or constructive, to which any share or security
issued by it is subject, and whether or not the company has had
notice cf the trust ; and it may treat the registered holder as
the absolute owner of any such share or security, and, accord-
ingly, shall not be bound to recognize any claim on the part of
DOMINION AND PROVINCIAL RAILWAY ACTS. xxxii:
any other person whomsoever, with respect to any such
share or security, or the dividend or interest payable thereon :
Provided, that nothing herein contained shall prevent a person Proviso,
equitably interested in any such share or security from procuring
the intervention of the court to protect his rights.
R. S. O., ch. 170, sec. 37 (5). The company shall not be bound to see to
the execution of any trust, whether express, implied or constructive, to which
any of the shares may be subject ; and the receipt of the party in whose name
any share stands in the books of the company, or if it stands in the name of
more parties than one, the receipt of one of the parties named in the register
of shareholders, shall from time to time be a sufficient discharge to the com-
pany for any dividend or other sum of money payable in respect of the share,
notwithstanding any trust to which the share may then be subject, and whether
or not the company have had notice of the trusts, and the company shall not
be bound to see to the application of the money paid upon such receipts.
R. S. Q., Art. 5137 (5). Same as Ontario.
R. S. M., ch. 130, sec. 93. Same as Ontario.
N. B., 1891, ch. 18, sec. 29 (5). Same as Ontario.
R. S. N. S., ch. 53, sec. 22 (5). Same as Ontario.
78. The certificate of proprietorship of any share shall be Certificate of
admitted in all courts 9& priin& facit evidence of the title of any proprietor-
shareholder, his executors, administrators or assigns, (or succes-e^e°cee
sors and assigns, as the case may be), (i) to the share therein
specified.
R. S. O., ch. 170, sec. 35 (7).
R. S. Q., Art. 5135 (7).
R. S. M., ch. 130, sec. 77.
N. B., 1891, ch. 18, sec. 27 (7).
R. S. N. S-, ch. 53, sec. 20 (7). Same as Dominion, omitting (l).
79. The want- of such certificate shall not prevent the holder gale without
of any share from disposing thereof. certificate.
R. S. O.,ch. 170, sec. 35 (8).
R. S. Q., Art. 5135 (8).
R. S. M., ch. 130, sec. 78.
N. B., 1891, ch. 18, sec. 27 (8).
R. S. N. S.,ch. 53, sec. 20(8).
80. Every person who neglects or refuses to pay a ratable Penalty for
share of the calls as aforesaid, for the space of two months after refusal to pay
the time appointed for the payment thereof, shall forfeit to the
company, for the benefit thereof, his shares in the company, and
all the profit and benefit thereof.
R. S. O.,ch. 170, sec. 35 (9).
R. S. Q., Art. 5135 (9).
R. S. M., cli. 130, sec. 79.
N. B., 1891, ch 18, sec. 27 (9).
R. S. N. S., ch. 53, sec. 20 (9).
XXXIV
THE RAILWAY LAW OF CANADA.
When only
be takeiTad" shares are declared to be forfeited
81. No advantage shall be taken of the forfeiture unless the
at a general meeting of the
vantage of.
Effect of for-
feiture as to
liability.
company, assembled at any time after such forfeiture has been
incurred.
R. S. O., ch. 170, sec. 35 (lo).
R. S. Q., Art. 5135 (10).
R. S. M., ch. 130, sec. 79.
N. B., 1891, ch. 18, sec. 27 (10).
R. S. N. S., ch. 53, sec. 20 (10).
82. Every such forfeiture shall be an indemnification to and
for every shareholder so forfeiting, against all actions, suits or
prosecutions whatsoever commenced or prosecuted for any
breach of contract or other agreement between such shareholder
and the other shareholders with regard to carrying on the under-
taking.
R. S. O.j ch. 170, sec. 35 (11).
R.S.Q., Art. 5135 (n).
R. S. M., ch. 130, sec. 80.
N. B., 1891, ch. 18, sec. 27 (11).
R. S. N. S., ch. 53, sec. 20 (11).
83. The directors may sell, 'either by public auction or pri-
manner and on such terms as to them
Proviso : au-
thority to be
obtained.
Forfeited
shares may fee vate sale, and in such
seem meet, any shares so declared to be forfeited (or any un-
issued shares), (i) or may pledge such (2) shares for the pay-
ment of loans or advances made or to be made thereon, or for
the payment of any sums of money borrowed by or advanced to
the company (provided that authority for such purpose and for
the issue of the stock be first given at a special general meeting
of the shareholders called for the purpose). (3)
R. S. O., ch. 170, sec. 35 (12). — (i) Substitute "and also any shares
remaining unsubscribed for in the capital stock of the company," (2) " for-
feited or unsubscribed," (3) omitted.
R. S. Q., Art. 5135 (12). Same as Ontario.
R. S. M., ch. 130, sec. 81.
N. B., 1891, ch. 18, sec. 27 (12).
R. S. N. S., ch. 53, sec. 20(12).
84. A certificate of the treasurer of the company, that the for-
fg^ure of the shares was declared, shall be sufficient evidence of
_ •
the fact, and of their purchase by the purchaser ; and such cer-
f^^cate ^^ lne recejpt of the treasurer for the price of such
shares, shall constitute a good title to the shares ; and the certifi-
cate shall be, by the said treasurer, registered in the name and
Certificate of
treasurerto
be evidence
of forfeiture
and of title o
purchaser.
DOMINION AND PROVINCIAL RAILWAY ACTS. xxxv
with the place of abode and occupation of the purchaser, and
shall be entered in the books required to be kept by the by-laws
of the company ; and such purchaser shall thereupon be deemed
the holder of such shares, and shall not be bound to see to the
application of the purchase money, — and his title to such shares
shall not be affected by any irregularity in the proceedings in
reference to such sale ; and any shareholder may purchase any
shares so sold.
R. S. O., ch. 170, sec. 35 (13).
R. S. Q., Art. 5135 (13).
R. S. M., ch. 130, sec. 82.
N. B., 1891, ch. 18, sec. 27 (13).
R. S. N. S., ch. 53, sec. 20 (13).
85. Any shareholder who is willing to advance the amount Interest on
of his shares, or any part, of the money due upon his shares be- ^["anc
yond the sums actually called for, may pay the same to the com-
pany,— and upon the principal moneys so paid in advance, or
so much thereof as, from time to time, exceeds the amount of
the calls then made upon the shares in respect to which such
advance is made, the company may pay such interest (at the law-
ful rate of interest for the time being) (i) as the shareholders,
who pay such sum in advance, and the company agree upon;
but such interest shall not be paid out of the capital subscribed.
R. S. O., ch. 170, sec. 35 (14).
R. S.Q., Art. 5135(14).
R. S. M., ch. 130, sec. 83.
N. B., 1891, ch. 18, sec. 27 (14).— (i) Omitted.
R. S. N. S., ch. 53, sec. 20 (14).
86. Every shareholder shall be individually liable to the ere- Liability of
ditors of the company for the debts and liabilities of the com- snarenolder3-
pany, to an amount equal to the amount unpaid on the stock
held by him, and until the whole amount of his stock has been
paid up ; but no such shareholder shall be liable to an action in
respect of his said liability until an execution (at the suit of the
creditor) (t) against the company has been returned unsatisfied
in whole or in part. (2)
R. S. O., ch. 170, sec. 38 (i). — (i) Omitted, (2) additional " and the
amount due on such execution shall be the amount recoverable with costs
against such shareholder " (a)
R. S. Q., Art. 5138. Same as Dominion, excepting (i) omitted.
R. S. M., ch. 130, sec. 96. Same as Ontario, excepting (a) additional
" provided that the payment due on such execution is less than the unpaid
portion of the stock."
XXXVI
THE RAILWAY LAW OF CANADA.
Aliens to
have equal
rights.
Record of
shareholders.
N. B , 1891, ch. 18, sec. 30. Same as Dominion, excepting (i) omitted.
R. S. N. S., ch. 53, sec. 23 (i). Same as Dominion, excepting (i)
omitted .
87. All shareholders in the company, whether British subjects
or aliens, or resident in Canada or elsewhere, shall have equal
rights to hold stock in the company, and to vote on the same, and
shall be eligible to office in the company.
88. A true and perfect account of the names and places of
abode of the several shareholders shall be entered in a book,
which shall be kept for that purpose (and which shall be open to
the inspection of the shareholders), (i)
R. S.O., ch. 170, sec. 32 (2). — (i) Substitute " as well as of the several
persons also from time to time become proprietors of or entitled to any
shares therein, and of all other acts, proceedings and transactions of the com-
pany and of the directors for the time being."
R, S. Q., Art. 5138 (4). Same as Dominion, excepting (i) omitted.
R. S. M., ch. 130, sec. 97. Same as Ontario.
N. B., 1891, ch. 18, sec. 30 (2). Same as Ontario.
R. S. N. S., ch. 53, sec. 23 (3). Same as Quebec.
LIMITATION OF TIME.
81). If the construction of the railway is not commenced, and
fifteen per cent, (i) on the amount of the capital stock is not ex-
pended thereon within two (2) years after the passing of the Act
authorizing the construction of the railway, or if the railway is
not finished and put in operation in seven (3) yenrs from the
passing of such Act (then the powers granted by such Act or by
this Act shall cease and be null and void as respects so much of
the railway as then remains uncompleted). (4)
R. S. O., ch. 170, sec. 44 (5).— (i) " ten per cent.," (2) "three years," .
(3) " ten years," (4) substitute " the corporate existence and powers of the
company shall cease."
R. S. Q-, Art. 5176 (3). Same as Ontario.
R. S. M., ch. 130, sec. 124. Same as Ontario.
N. B., 1891, ch. 18, sec. 35 (5). Same as Ontario-
R. S. N. S., ch. 53, sec 27 (6J.
GENERAL POWERS.
Powers. 9O. The company may, subject to the provisions in this and
the special Act contained : —
To enter lands ^ Enter into and upon any lands of Her Majesty (i)
e°c. without previous license therefor, or into and upon the lands of
any (2) person whomsoever, lying in the intended route or line of
Time for con-
struction
limited.
DOMINION AND PROVINCIAL RAILWAY ACTS, xxxvii
the railway ; and make surveys, examinations or other necessary
arrangements on such lands for fixing the site of the railway,
and set out and ascertain such parts of the lands as are necessary
and proper for the railway.
R. S.O., ch. 170,860.9(12) (13). — (l) Additional " the property of this
province," (2) " Corporation or."
R. S. Q-, Art. 5132 (12). Same as Dominion.
R. S. M., ch. 130, sec. 12 (/) (j). " To enter into and upon any lands of
any corporation or person whatsoever lying in the intended route or line of
railway." Remainder same as Dominion.
N. B., 1891, ch. 18, sec 9 (12). Same as Ontario.
R. S. N. S.,ch. 53, sec. 7 (12). Same as Ontario, excepting (l) " Crown
land."
(ft) Receive, take and hold all voluntary grants and dona- To receive
tions of lands or other property (or any bonus of money or fand^etc
debenture, or other benefit of any sort) (i) made to it for the pur-
pose of aiding in the construction, maintenance and accommo-
dation of the railway ; but the same shall be held and used for
the purpose of such grants or donations only.
R. S. O., ch. 170, sec. 9 (l).— (i) Omitted.
R. S. Q., Art. 5132(1).
R. S. M., ch. 130, sec. 16 («).
N. B., 1891, ch. 18, sec. 9 (i).
R. S. N. S., ch. 53, sec. 7 (i). Same as Ontario.
(cr) Purchase, take and hold of and from any (i) person, To purchase
any lands or other property necessary for the construction, an^ sel1 land-
maintenance, accommodation and use of the railway, and
also alienate, sell or dispose of (so much thereof as is not
necessary for the purposes of the railway). (2)
R. S. O., ch. 170, sec. 9 (2). — (i) " Corporation or," (2) substitute "the
same." (a)
R. S. M., ch. 130, sec. 16 (£). Same as Ontario.
R. S. Q., Art. 5132 (2). Same as Ontario, excepting (a) additional,
"at pleasure."
N. B., 1891, ch. 18, sec. 9 (2) . Same as Ontario.
R. S. N. S., ch. 53, sec. 7 (2). Same as Ontario.
(//) Make, carry or place the railway across or upon the lands TO carry rail-
of any (i) person on the located line of the railway (or within wa? across
one mile thereof, or within such further distance from such line
as is prescribed in the special Act). (2)
R. S. M., ch. 130, sec. 12 («). — (i) " Corporation or," (2) omitted.
N. B., 1891, ch. 18, sec. 9(4). (l) " Corporation," (2) substitute "or
within the distance from such line stated in the special Act, although
through error or other cause the name of such (a) party has not been entered
in the book of reference hereinafter mentioned, or although some other
xxxviii THE RAILWAY LAW OF CANADA.
(rt) party has been erroneously mentioned as the owner of, or entitled to
convey, or is interested in such lands."
R. S. Q., Art. 5132 (4). Same as New Brunswick, excepting («) " cor-
poration or."
R. S. O., ch. 170, sec. 9 (4). Same as New Brunswick.
R. S. N. S., ch. 53, sec. 7 (4). Same as New Brunswick.
To fell trees. (/) Fell or remove any trees which stand within six rods
from either side of the railway, or which are liable to fall across
the railway track.
R. S. O., ch. 170, sec. 9(14). " To fell or remove any trees standing
in any woods, lands or forests where the railway passes, to the distance of
six rods from either side thereof."
R. S. Q., Art. 5132 (13). Same as Ontario.
R. S- M., ch, 130, sec. 12 (/£). Same as Ontario.
N. B., 1891, ch. 18, sec. 9(13). Same as Dominion Act.
R. S. N. S., ch. 53, sec. 7 (13). Same as Ontario.
To cross, etc., (/) Cross, intersect, join and unite the railway with any
other rail- other railway at any point on its route, and upon the lands of
such other railway, with the necessary conveniences for the pur-
poses of such connection.
R. S. O.j ch. 170, sec. 9 (15) . Same as Dominion, and in case of any
disagreement, see under sec. 176, infra.
R. S. Q., Art. 5132 (14). irame as Dominion, and see sec. 176, infra,
R. S. M., ch. 130, sec. 12 (I). " Subject to the provisions hereinafter
contained (see sec. 176, infra') to cross, intersect, join and unite the railway
with any other railway at any point on its route, and upon the lands of the
owners of or us-ed in connection with such other railway, with the necessary
conveniences for the purposes of such connection, and the owners of both rail-
ways may unite in forming such intersection and grant the facilities there-
for."
R. S. N. S., ch. 53, sec. 7 (14). Same as Dominion, and see sec. 176,
infra.
To make (g) Make or construct in, upon, across, under or over any
bridges, tun- rajiwaVj tramway, river, stream, water-course, canal or highway
which it intersects or touches, temporary or permanent inclined
planes, tunnels, embankments, aqueducts, bridges, roads, ways,
passages, conduits, drains, piers, arches, cuttings and fences.
R. S. O., ch. 170, sec. 9 (5). <( To construct, maintain and work the rail-
. way across, along or upon any (stream of water) (i) water course, canal,
highway or railway which it intersects or touches ; but the (stream), (i)
water com se, canal, highway or railway (a) so intersected or touched shall
be restored by the Company to its former state, or to such state as not to
impair its usefulness (but this shall not authorize the obstruction of the
navigation of any navigable waters). (2)
R. S. Q., Art. 5132 (5). Same as Ontario, excepting (i) " river,"
(2) substitute "subject always, however, to the authority and control of
the Parliament of Canada, in so far as respects shipping and navigation."
R. S. M., ch. 130, sec. 12 (b). Same as Ontario excepting (a) " subject
to the authority of ihe Legislature of this Province."
DOMINION AND PROVINCIAL RAILWAY ACTS. xxxix
N. B., 1891, ch. 18, sec. 9 (5). Same as Ontario, adding word " ditch "
after " water- course."
R. S. N. S.,ch. 53, sec. 7 (5), amended by 58 Vic., ch. 13. Same as
Ontario. Omitting (2), and including (h) and (i) Dom. Act.
(h} Divert or alter, as well temporarily as permanently, To diveit
^, .. . . . , streams, etc.
the course of any such river, stream, water-course or highway,
or raise or sink the level thereof, in order the more conveniently
to carry the same over, under or by the side of the railway.
(/) Make drains or conduits into, through or under any lands To make
adjoining the railway, for the purpose of conveying water from conduits!
or to the railway.
(/) Divert or alter the position of any water-pipe, gas-pipe, To alter posi-
sewer or drain, or any telegraph, telephone or electric light wire w°"e° pfpg °r
or pole. etc.
R. S. N. S., ch. 53. sec. 7 (5), as amended by 58 Vic., ch. 13. Not apply
to cities.
(/£) Make, complete, alter and keep in repair the railway, To make and
. , ., , , , /maintain rail-
with one or more sets of rails or tracks, to be worked by the way
force and power of steam (or of electricity) (i) or of the atmo-
sphere, or of animals, or by mechanical power, or by any com-
bination of them.
R. S. O., ch. 170, sec. 9 (b) (I) Omitted.
R. S. Q., Art. 5132 (6). Same as Ontaiio.
R. S. M., ch. 130, sec. 12 (c). Same as Ontario.
N. B., 1891, ch. 18, sec. 9 (6). Same as Dominion.
R. S. N. S., ch. 53, sec. 7 (6). Same as Ontario.
(/) Erect and maintain all necessary and convenient build- To erect
ings, stations, depots, wharves and fixtures, (i) and (construct) l ing?> etc*
(2) purchase and acquire stationary or locomotive engines and
carriages, waggons, floats and other machinery, necessary for
the accommodation and use of the passengers, freight and busi-
ness of the railway.
R. S. O. , ch. 170, sec. 9 (7). (i) " and from time to time to alter, repair
or enlarge the same," (2) omitted.
R. S. Q., Art. 5132 (7). Same as Ontario.
R. S. M.,ch. 130, sec. 12 (d). Same as Ontario, with additional " and
to run boats and vessels propelled by steam or otherwise on any lake, stream
or waterway for the purpose of carrying freight or passengers in connection
with the said railway."
N. B., 1891, ch. 18, sec. 9 (7). Same as Ontario.
R. S. N. S., ch. 53, sec. 7 (7). Same as Ontario.
(m) Construct or acquire electric telegraph and telephone Telegraph
lines for the purpose of its undertaking . I1.1"1 telePnone
xl
THE RAILWAY LAW OF CANADA.
To make
branch rail-
ways.
To convey
persons and
goods .
To alter
works
To do all
things neces -
sary.
Powers may
be exercised
in United
States.
N. B., 1891, ch. 18, sec. 9 (14).
R. S. Q., Art. 5176. " Railway companies shall have the right to estab-
lish telegraph lines along the whole extent of the railway, at such places along
the line, and with offices at such places as shall be determined by the direc-
tors, (i) and such telegraphs may be used by the public generally, in confor-
mity with the rules and regulations that the company may adopt."
R. S. N. S.,ch. 53, sec. 7 (20). Same as Quebec, excepting (i) "and
rates of tariff to be from time to time appioved by the Governor in Council."
(«) Make branch railways, if required and provided for by
(this or) (i) the special Act, and manage the same, and for that
purpose exercise all the powers, privileges and authorities
necessary therefor, in as full and ample a manner as for the rail-
way.
R. S. O., ch. 170, sec. 9 (8). — (i) Omitted.
R' S. Q., Art. 5132 (8).— (i) Omitted.
R. S. M., ch. 130, sec. 12 (e). — (i) Omitted.
N. B., 1891, ch. 18, sec. 9 (8).
R. S. N. S., ch. 53, sec. 7 (8). Same as Ontario.
(0} Take, transport, carry and convey persons and goods (i) on
the railway, regulate the time and manner in which the same
shall be transported, and the tolls and compensation to be paid
therefor, and receive such tolls and compensation.
R. S. O., ch. 170, sec. 9 (10).
R. S. Q., Art. 5132 (io).— (i) " of all kinds."
R. S. M., ch. 130, sec. 12 (g).
N. B., 1891, ch. 18, sec. 9 (io).
R. S. N. S., ch. 53, sec. 7 (io).
(p) From time to time alter, repair or discontinue the before
mentioned works or any of them, and substitute others in their
stead.
(^) Do all other acts necessary for making, maintaining,
altering or repairing, and using the railway.
R. S. O., ch. 170, sec. 9 (9). " To construct, erect and make all other
matters and things necessary and convenient for the making, extending and
using of the railway, in pursuance of and according to the meaning and intent
of this Act and of the special Act.
R. S. Q , Art. 5132 (9). Same as Ontario.
R. S. M , ch. 130, sec. 12 (/). Same as Ontario.
N. B., 1891, ch. 18, sec. 9 (9). Same as Ontario.
R. S. N. S., ch. 53, sec. 7 (io).
O) (53 Vic., ch. 28, sec. i.) Any company operating a
railway from any point in Canada to any point on the Inter-
national boundary line may exercise beyond such boundary the
powers which it may exercise in Canada, in so far as they are
permitted by the laws in force there.
DOMINION AND PROVINCIAL RAILWAY ACTS. xli
CO (55'56 Vic., ch. 27, sec. 3, amending 53 Vic., ch. 28, ^.Declaration
i.) Any company which has obtained from the Crown, by way with respect
of subsidy or otherwise, in respect of the construction or opera- to lands,
•tion of its railway, a right to any land or to an interest in land,
has, and from the time of obtaining such right has had, as in-
cident to the exercise of its corporate powers, authority to
acquire, sell or otherwise dispose of the same or any part or parts
thereof ; and such company may convey the same, or any part
or parts thereof, to any other company which has entered into
any undertaking for the construction or operation, in whole or
in part, of the railway in respect of which such laud or interest
in land was given ; and thereafter such other company shall
have, in respect of such land or interest in land, the same
authority as that of the company which has so conveyed it ; and
as to any lands given to the company by any corporation or
other party, as aid towards, or as consideration in whole or in
part for, the construction or operation of the company's railway,
either generally or with respect to the adoption of any particular
route, or on any other account, the authority of Hie company
and of any other company to which it may convey its right in
any of the said lands shall be the same as if such lands had been
obtained by the company from the Crown as aforesaid.
91. The company shall restore as nearly as possible to its Company to
- . ... restore
former state any river, stream, water-course, highway, water- stream etc.
pipe, gas-pipe, sewer or drain, or any telegraph, telephone or to former
electric light wire or pole which it diverts or alters, or it shall sli
put the same in such a state as not materially to impair its useful-
ness.
R. S. O., ch. 170, sec. 9 (5). " But the stream, water course, highway,
canal or railway («) so intersected or touched, shall be restored by the com-
pany to its former state, or to such state as not to impair its usefulness."
R. S.O., Art. 5132 (5). Same as Ontario.
R. S. M., ch. 130, sec. 12 (£). Same as Ontario, excepting (a) "subject
to the authority of the Legislature of this Province."
N. B., 1891, ch. 18, sec. 9 (5). Same as Ontario.
R. S. N. S., ch. 53, sec. 7 (5), as amended by 58 Vic., ch. 13. Same as
Ontario.
92. The company shall, in the exercise of the powers by Compensation
this or the special Act granted, do as little damage as possible,
and shall make full compensation, in the manner herein and in
the special Act provided, to all parties interested for all damage
by them sustained by reason of the exercise of such powers.
xlii THE RAILWAY LAW OF CANADA.
R. S. O., ch. 170, sec. 6. " The power given by the special Act, to con-
struct the railway, and to take and use lands for that purpose, shall be
exercised subject to the provisions and restrictions contained in this Act."
7. — (i) " For the value of lands taken, and for all damages to lands injuri-
ously affected by the construction of the railway, in the exercise of the
powers by this or the special Act, or any Act incorporated therewith, vested
in the company, compensation shall be made to the owners and occupiers of,
and to all other persons interested in, any lands so taken or injuriously
affected ; "
(2) " Unless otherwise specially provided by this Act, or the special Act,
the amount of such compensation shall be ascertained and determined in the
manner provided by this Act-"
R. S. M., ch. 130, sec. 6, Same as Ontario.
R. S. M., ch. 130, sec. 7. Same as Ontario.
R. S. M., ch. 130, sec. 8. " Unless otherwise specially provided, the
clauses of " The Manitoba Expropriation Act," respecting the offer of com-
pensation, the notice of intention to arbitrate, the surveyor's certificate ac-
companying such notices, the appointment, qualifications, powers and duties
of arbitrators, the proceedings upon the arbitration, the revocation of notice,
the award and its effect, the costs of aibiuation, .appeals from awards, the
payment into Court of the amount of the award, the powers of the Judge and
of the Court of Queen's Bench with reference to the award and to the com-
pensation and the distribution of the compensation shall be deemed to be
incorporated mutatis mutandis with this Act and the special Act so far as
not inconsistent therewith ; and the amount of such compensation shall be
ascertained and determined in the manner provided by " The Manitoba Ex-
propriation Act ; " and the word £i compensation " in such clauses shall be
deemed to include " rent," where the same may t e given as compensa-
tion ; and the words " Government " and " Minister " in said clauses
mean " Company " for the purposes of this Act, save that the power of the
Company to take or interfere with the property of others without the con-
sent of the owner is not to be beyond that given by this Act or the special
Act, and that this Act, unless otherwise provided by the special Act, deter-
mines the time of the vesting in the Company of expropriated property."
N. B., 1891, ch. 18, sec. 7. Same as Ontario, sec. 7 (I).
N. B., 1891, ch. 18, sec. 7(1) Same as Ontario, sec. 7 (2).
POWER TO BORROW MONEY.
Issue of 93. The directors of the company, under the authority of the
bonds, etc., shareholders to them given at any special general meeting,
onzec ' called for the purpose in the manner provided by section forty-
one of this Act, at which meeting shareholders representing at
least two-thirds in value of the subscribed stock of the company,
and who have paid all calls due thereon, are present in person
or represented by proxy, may, subject to the provisions in this
Act and the special Act contained, issue bonds, debentures or
other securities signed by the president or other presiding officer,
and countersigned by the secretary, which counter-signature and
the signature to the coupons attached to the same may be en-
DOMINION AND PROVINCIAL RAILWAY ACTS. xliii
graved ; and such bonds, debentures or other securities may be
made payable at such times and in such manner, and at such When they
place or places in Canada or elsewhere, and may bear such rate ^J^ made
of interest not exceeding six per cent, per annum, as the direc-
tors think proper.
2. The directors may issue and sell or pledge all or any of Disposal of
the said bonds, debentures, or other securities, at the best price
and upon the best terms and conditions which at the time they
may be able to obtain, for the purpose of raising money for
prosecuting the said undertaking.
3. No such bond, debenture or other security shall be for a Amount of
less sum than one hundred dollars. bond, etc.
4. (As amended by 55-56 Vic., ch. 27, sec. 4) The power Extent of
of issuing bonds conferred upon the company hereby or under
the special Act shall not be construed as being exhausted by
such issue ; but such power may be exercised, from time to time,
upon the bonds constituting such issue being withdrawn or paid
off and duly cancelled, and the limit to the amount of bonds,
debentures or other securities fixed in the special Act shall not
be exceeded.
R. S. O., ch. 170, sec. 9 (n), repealed by 53 Vic., ch. 45, sec. I and
replaced by sec. 9, sub-sec. 20, 21, 22, 23, 24. Sub sec. 20 same as sec. 93,
Dominion Act, excepting " eight per cent " for " six," and additional. " But
no bonds shall be issued until 20 % of the costs has been actually expended
on the work."
R. S. Q.,art. 5132 (n) " To borrow from time to time, either in (Canada)
(a) or elsewhere, such sums of money as may be expedient for completing,
maintaining and working the railway (at a rate of interest not exceeding the
legal rate,) (3) and to make the bonds, debentures, or other securities
granted for the sums so borrowed, payable either in currency or sterling, and
at such place or places within (Canada), (c) or without, as may be deemed
advisable, and to sell the same at such prices or discount as may be deemed
expedient, or be necessary, and to hypothecate, mortgage, or pledge the
lands, tolls, revenues and other property of the company ft. r the due pay-
ment of the said sums and the interest thereon (but no debenture shall be for
a less sum than $100). " (d)
R. S. M., ch. 130, sec. 12 (h). Same as Quebec, excepting (a) "this
Province " ; (^) '• and at a rale of interest authorized by the laws of Canada,
but not exceeding eight per cent, per annum " ; (c) " this province ''; (d)
omitted.
N. B., 1891, ch. 18, sec. 9 (n). Same as Manitoba, omitting '' authorized
by the laws of Canada, but," also (d) additional, " provided that the limit
to the amount cf bonds fixed in the special Act (if any) shall not be ex-
ceeded."
R. S- N. S., ch. 53, sec. 7 (n). Same as Quebec, excepting (b) " eight
per cent, per annum " and additional " and in all respects such debentures
xliv THE RAILWAY LAW OF CANADA.
shall be of such a character and amount as shall be fixed by the Act of the
Legislature.
"Mortgage 94. The company may secure such bonds, debentures, or
deed to secure o^er securities, by a mortgage deed creating such mortgages,
charges and incumbrances upon the whole of such property,
assets, rents and revenues of the company, present or future, or
Penalties nnd both, as are described in the said deed ; but such rents and
pen'ditufeTo revermes shall be subject in the first instance to the payment of
!be a first any penalty imposed for non-compliance with the requirements of
charge. ^j,, ^ci respeciing returns 10 be made to the Minister, and next
to the payment of the working expenditure of the railway ;
Powers which 2. By the said deed the company may grant to the holders of
ed by deed? SIIC^ bonds, debentures, or other securities, or the trustees
named in such deed, all and every the powers, rights and reme-
dies granted by this Act in respect of the said bonds, deben-
tures, or other securities, and all other powers, lights and
remedies not inconsistent with this Act, or may restrict the said
holders in the exercise of any power, privilege or remedy granted
Validity of by this Act, as the case may be ; and all the powers, rights and
• remedies so provided for in such mortgage deed shall be valid
and binding, and available to the said holders in manner and
form as therein provided ;
Deposit of 3. Every such mortgage deed shall be deposited in the office
of the (Secretary of State of Canada) (2) of which deposit notice
shall be given by the company in the {Canada Gazette). (3)
As to securing such bonds, etc., by mortgage deed, etc., in Provincial Acts,
see notes to sec. 93, supra.
Ontario, 53 Vic., ch. 45, sec. I, adding sub-sec. 21 to sec. 9. R. S. O.,
ch. 170. Same as Dominion, excepting (2) " office of the Provincial Se-
cretary," (3) " Ontario Gazette."
Bonds, etc., 95. The bonds, debentures, or other securities, hereby
to be a prefer- authorized to be issued shall be taken and considered to be the
ential claim .. - .... . , . , ,
on the under- "rst preferential claim and charge upon the company, and the
taking. franchise, undertaking, tolls and income, rents and revenues,
and real and personal property thereof, at any time acquired,
save and except as provided for in the next preceding section ;
Holder to 2. Each holder of the said bonds, debentures, or other sectt-
be a mort- rities shall be deemed to be a mortgagee or incumbrancer upon
the said securities pro rata with all the other holders ; and no
DOMINION AND PROVINCIAL RAILWAY ACTS. xlv
proceedings authorized by law or by this Act shall be taken to
enforce payment ot" the said bonds, debentures, or other secu-
rities, or of the interest thereon, except through the trustee or
trustees appointed by or under such mortgage deed.
Ontario, 53 Vic., ch. 45, sec. I, adding sub-sec. 22 to sec. 9. R. S. O.,
ch. 170. Same as Dominion.
96. If the company makes default in paying the principal 01 Powers of
or interest on any of the bonds, debentures or other securities, cs
hereby authorized, at the time when the same, by the terms of payment.
the bond, debenture, or other security, becomes due and payable,
then at the next annual general meeting of the company, and at all
subsequent meetings, all holdeis of bonds, debentures or other
securities, so being and remaining in default, shall, in respect
thereof, have and possess the same rights and privileges and
qualifications for being elected directors and for voting at general
meetings as would attach to them as shareholders if they held
fully paid-up shares of the company to a corresponding amount ;
2. The rights given by this section shall not be exercised by Rights of
any such holder, unless it is so provided by the mortgage deed, &olders de-
nor unless the bond, debenture or other security, in respect of
which he claims to exercise such rights, has been registered in
his name, in the same manner as the shares of the company are
registered, at least ten days before he attempts to exercise the
right of voting thereon ; and the company shall be bound on Registration.
demand to register such bonds, debentures or other securities,
and thereafter any transfers thereof, in the same manner as
shares or transfers of shares ;
3. The exercise of the rights given by this section shall not Certain rights.
take away, limit or restrain any other of the rights or remedies not affecttd-
to which the holders of the said bonds, debentures or other
secui ities are entitled under the provisions of such mortgage deed.
Ontario, 53 Vic., ch. 45, sec. i, adding sub-sec. 23 to sec. 9. R. S. O.,
ch. 170. Same as Dominion.
97- All bonds, debentures or other securities hereby au- Transfer of
thorized may be made payable to bearer, and shall in that case bondi:> etc-
be transferable by delivery, until registration thereof as herein-
before provided, and while so registered they shall be transfer-
able by written transfers, registered in the same manner as in the
case of the transfer of shares.
xlvi THE RAILWAY LAW OF CANADA.
Ontario, 53 Vic., ch. 45, sec. i, adding sub-sec. 24 to sec. 9. R. S. O.,
ch. 170. Same as Dominion.
Promissory 98. The company may become party to promissory notes
notes may be an(j DJHS of exchange for sums not less than one hundred dollars ;
and every such note or bill made, drawn, accepted or indorsed
by the president or vice-president of the company, or other
officer authorized by the by-laws of the company, and counter-
signed by the secretary, shall be binding on the company ; and
every such note or bill of exchange so made, drawn, accepted or
indorsed shall be presumed to have been made, drawn, accepted
or indorsed with proper authority until the contrary is shown ;
No seal re- and in no case shall it be necessary to have the seal of the com-
quired. pany affixed to such promissory note or bill of exchange, nor
shall the president or vice-president or secretary or other officer
so authorized be individually responsible for the same, unless
such promissory note or bill has been issued without proper
Notes not to authority ; but nothing in this section shall be construed to
be payable to authorjze the company to issue any note or bill payable to
bearer, or intended to be circulated as money or as the note or
bill of a bank.
POWER TO TAKE OR USE LAND AND MATERIALS DEFINED AND
LIMITED.
As to lands 99. No company (a) shall take possession of, use or occupy
vested in Her anv ]ands (vested in Her Majesty) (i) without the consent
of the (2) Governor in Council ; but with such consent, any
such company may (upon such terms as the Governor in
Council prescribes) (3) take and appropriate, for the use of
its railway and works, but not alienate, so much of the (4)
lands of the (Crown) (5) lying on the route of the railway as
have not been granted or sold, and as is necessary for such rail-
way, as also so much of the public beach, or of the land covered
with the waters of any lake, river, stream or canal, or of their
respective beds, as is necessary for making and completing and
Lands vested using its said railway and works (and whenever any such lands
t" for^s ^daf are vesled m Her Majesty for any special purpose, or subject
purposes. to any trust, the compensation money which the company pays
therefor shall be held or applied by the Governor in Council for
the like purpose or trust). (6)
DOMINION AND PROVINCIAL RAILWAY ACTS. xlvii
R. S. O., ch. 170, sec. 9 (3) — (i) belonging to the Province," (2)
" Lieutenant," (3) omitted, (4) " wild," (5^1 " Province," (6) omitted.
R. S. Q., Art. 5132 (3). With the consent of the Lieutenant -Governor
in Council, to take and appropriate, for the use of its railway and works, but
not alienate, so much of the wild lands of the Crown, lying on the route of
the railway, as have not been granted or sold, and as may be necessary for
such railway, as also so much of the public beach or of the land covered with
the waters of any lake, river, stream, canal, or of their respective beds, as is
necessary for making and completing and using their said railway and works,
subject, however, to the authority and control of the Parliament of Canada,
in so far as shipping and navigation are concerned.
R. S. M., ch. 130, sec. lo. Same as Ontario, excepting (a) " heretofore or
hereafter authorized to construct a railway," and additional, " subject, how-
ever, to the exceptions contained in the following section."
N. B., 1891, ch. 18, sec. 9 (3). Same as Ontario, excepting (4) " unoccu-
pied and unreserved."
R. S. N. S., ch. 53,sec. 7 (3). Same as Dominion, excepting (3) omitted, (4)
" wild," (6) substitute " subject, however, to the authority and control of the
Parliament of Canada as regards navigation and shipping."
100. Whenever it is necessary for such company to occupy As to lands
any part of the lands belonging to Her Majesty reserved for ^j^r^ oT
naval or military purposes, it shall first apply for and obtain the naval pur-
license and consent of Her Majesty (under the hand and seal of Poses-
the Governor General), (i) and having obtained such license and
consent, it may, at any time or times, enter into and enjoy any
of the said lands for the purposes of the railway (but in the case Consent of
of any such naval or military reserves, no such license or consent ?hrop-?r au~
shall be given except upon a report first made thereupon by the
naval or military authorities in which such lands are for the time
being vested, approving of such license and consent being so
given). (2)
R. S. M., ch. 130, sec. II. (i) Substitute " through the proper officers or
Department of the Crown or of the Government of Canada," (2) omitted.
101. No company shall take possession of or occupy any AS to Indian
portion of any Indian reserve or lands without the consent of thelands-
Governor in Council ; and when, with such consent, any portion
of any such reserve or lands is taken possession of, used or occu-
pied by any company, or when the same is injuriously affected
by the construction of any railway, compensation shall be made
therefor, as in other cases.
102. A company may, for the purpose of obtaining a right AS to lands of
of way over or through lands owned or occupied by any other othe.r conv
company, and for obtaining the use of the tracks, stations or sta-
xlviii THE RAILWAY LAW OF CANADA.
tion grounds of another company, or for the purpose of con-
structing and operating its railway, take possession of, use or
occupy any lands belonging to any other railway company, with
the approval of the Railway Committee, which approval such
committee may give on any application of which such other com-
pany has, in the opinion of the committee, had reasonable notice.
Orders may On any such application, the Railway Committee may make
su^casV" sucn or<^ers ar>d give such directions as to it appeal s just or in
Certain provi- the public interest ; and all the provisions of the law at any time
Slons to apply, applicable to the taking of lands and their valuation and the com-
pensation therefor, and appeals from awards thereon, shall apply
to such lands.
Extent of land 1O3. The lands which may be taken without the consent of
that may be the owner thereof shall not exceed (thirty-three) (i) yards in
breadth, but in places where the railway is raised more than five
feet higher or cut more than five feet deeper than the surface of
the line, or where (offsets) (a) are established, or where stations,,
depots or fixtures are intended to be erected, or goods to be
delivered, the lands, which may be taken without the consent of
the (owner), (b) shall not be more than (six hundred and fifty-
Exception, yards in length by one hundred yards in breadth), (2) (except
where more ample space for the accommodation of the public, or
of the traffic on the railway, or for protection against snow drifts
is required — in which cases such greater quantity of land or land
covered with water may be taken, as the Minister authorizes). (3)
R. S. O., ch. 170, sec. ir. — (i) "thirty," (2) "two hundred yards in
length by one hundred and fifty yards in breadth," (b) " person authorized
to convey such lands," (3) omitted. See also section 104, infra,
R. S. Q., Ait. 5164 (i). Same as Dominion, excepting (a) " a double track
is," (2) " two hundred and fifty yards in length by one hundred and fifty
yards in breadth," (3) omitted. See also section 104, infra.
R. S. M., ch. 130, sec. 22. Same as Ontario. See also section 104, infra*
N. B , 1891, ch. 18, sec. II. Same as Ontario. See also sec. 104, infra,
R. S. N. S., ch. 53, sec. 9 (i). Same as Dominion, excepting (2) " two
hundred and fifty yards in length by seventy-five yards in breadth." See
also sec. 104 infra.
Extra land to 1O4. The places at which such extra breadth is to be taken
be shown on s|ia}i be shown on the map or plan (i) so far as the same are
then ascertained ; but the fact of their not being so shown shall
not prevent such extra breadth from being taken, if it is taken
upon the line shown, or within (one mile thereof, or within such
DOMINION AND PROVINCIAL RAILWAY Acrs. xlix
further distance from such line as is prescribed in the special
Act). (2)
R. S. O., ch. 170, sec. n. — (i) Additional "or plans or sections," (2)
substitute "the distance aforesaid from such line."
R. S. Q., Art. 5164 (i). Same as Ontario.
N. B., 1891, ch. 18, sec. n. Same as Ontario.
R. S. N. S., ch. 53, sec. 9 (i). Same as Ontario.
105. The extent of the public beach, or of the land covered Public beach,
with the waters of any river or lake in (Canada), (i) taken for60'
the railway, shall not exceed the quantity (hereinbefore limited).
O)
R. S. O., ch. 170, sec. 12. — (i) "the Province," (2) "limited in the
last preceding clause."
R. S. Q.j Art. 5164 (2). Same as Ontario.
R. S. M., ch. 130, sec. 23. Same as Ontario.
N. B., 1891, ch. 18, sec. 12. Same as Ontario.
R. S. N. S., ch. 53, sec. 9 (2). Same as Dominion.
106. Whenever any company (i) requires, at any (2) place Proceedings
on the line of its railway, more ample space for the convenient * jV1^
accommodation of the public or of the traffic on the railway (or certain pur-
for protection against snow drifts) (3) than it then possesses orP°ses'
can take without the consent of the owners thereof, the company
may cause (a map or plan and book of reference) (4) to be
made of the additional lands required at such (5). place for the
purposes aforesaid. (6)
R. S. O., ch. 170, sec. 47. — (i) " incorporated by, or subject to the au-
thority of the Legislature of Ontario," (2) "station or," (3) omitted, (4)
"a plan," (5) " station or," (6) " not being in actual use for similarpur-
poses by any other railway company ; " and see sees. 107, 108, infra.
R. S. Q., Art. 5165. Same as Ontario, and see sees. 107, 108, infra.
R. S. N. S., ch 53, sec. 10. Same as Ontario mutatis mutandis ; and see
sees. 107 and 108 infra.
107. The company may transmit the map or plan and the Application
book of reference to the Minister with an application, on behalf *° the Mmis~
r r ter.
of the company, supported by affidavit, referring to such map or
plan and book of reference, and stating that certain lands shown
therein are necessary for such purposes, and that no other land
suitable for such purposes can be acquired at such place on
reasonable terms and with less injury to private rights, and re-
questing the Minister to authorize the taking thereof for such
purposes under this Act.
R. S. O., ch. 170, sec. 47, "(and for the purpose of making such plan
shall have the powers granted to railway companies for making surveys by
1 THE RAILWAY LAW OF CANADA.
(section 9 of this Act) (a), and may transmit the plan to the Commissioner
of Public Works, with an application (supported by affidavit) on behalf of
the company, referring to the plan, and stating that certain ground shown
thereon is necessary for the purposes aforesaid, and that no other ground
suitable for the purpose can be acquired at such place on reasonable terms,
and with less injury to private rights, and requesting the commissioners to
authorize the taking thereof for such purposes under this Act."
R. S. Q., Art. 5165. Same as Ontario, excepting (a) "article 5132."
R. S. N. S., ch. 53, sec. 10. Same as Ontario, excepting (a) "seventh
section of this chapter."
N tic to 1O8. At least ten days' notice of such application shall be
owner and given to the owner (or possessor) (#) of such property ; and
certificate to tjie correctiiess of the (map or plan and book of reference) (i)
be transmit-
ted to Minis- and the truth of the allegations in such application shall be
ter- certified by the president or one of the directors of the com-
pany, and by its engineer, and such (map or plan and book of
reference) (2) and statement shall be made and transmitted to
the Minister in duplicate.
R. S. O., ch. 170, sec. 47. — (i) " Plan," (2) "plan."
R. S. Q., Art. 5165. (a) Omitted, (i) "plan," (2) -'plan."
R. S. N. S., ch. 53, sec. 10. Same as Ontario.
Minister may 1O9. The Minister (i) shall inquire into the correctness of
grant the ap- the (map or plan and book of reference) (2) and the truth of
plication after .. , . ' . ..,.
inquiry. the allegations of such application, and, if he is satisfied thereof,
shall grant a certificate to that effect, and declaring it to be
necessary in the public interest that the land shown on such
(map or plan and book of reference) (3) or any less quantity,
should be acquired by the company ; and such certificate shall
be annexed to one of the duplicates of the said (map or plan
and book of reference) (4) and statement, and the other
duplicate shall remain at the (department). (5)
R. S-O., ch. 170, sec. 48. — (i) "Commissioner of Public Works," (2)
"plan," (3) "plan," (4) "plan," (5) "office of the Commissioner." (a)
R. S. Q., Art. 5166. Same as Ontario, excepting (a) " of Public Works.''
R. S N. S., ch. 53, sec. II. Same as Ontario.
Deposit of 11O. A copy of the duplicate of such map or plan and book
copy of plan, of reference and statement and of such certificate shall be de-
etc
posited in the office of the registrar of deeds for the county or
district in which the lands lie.
Powers of 111. Upon the granting of such certificate, and by virtue
company on thereof, the company may, without the consent of the owners,
ta^e ^e ^anc* snown on sucn (maP or P'an an^ book of refer-
DOMINION AND PROVINCIAL RAILWAY ACTS. li
ence) (i) as required for such purposes ; and the company, and
all persons who could not otherwise convey the same to the
company, shall have, with respect to any such land, all the
powers granted by (2) this Act to companies (3) and persons
who could not otherwise convey the same, with respect to lands
which may be taken without the consent of the owners thereof;
(and all the provisions of law at any time applicable to the
taking of land by the company and its valuation and the com-
pensation therefor shall apply to the lands mentioned in such
certificate). (4)
- R. S. O., ch. 170, sec. 49. — (i) "plan," (2) " sections 13 to 20 inclusive
of," (3) additional, "corporations," (4) substitute "and the enactments and
provisions of the said sections, except such as refer to the map or plan and
book of reference therein mentioned, or as limit the extent of land to ba
taken, shall apply and are hereby extended to the ground mentioned in the
certificate of the Commissioner of Public Works, and to all the proceedings
connected with or consequent upon the acquiring or taking of such ground or
any part thereof, with or without the consent of the proprietors ; and if at
any time thereafter the company do not require the whole or any portion of
the land acquired under this Act for railway purposes, then such land as is
not so required shall be sold by auction after thirty days' notice thereof in
any (local) (a) newspaper."
R. S. Q., Art. 5167. Same as Ontario, excepting (2) " subsection 13 of
thissecticn," (a) omitted.
P. S. N. S., ch. 53, sec. 12. Same as Ontario, excepting (2) " the sections
of this chapter headed ' Lands and their valuation.' " («) newspaper pub-
lished nearest to the lands."
The company, either for the purpose of constructing or Lands may be
repairing its railway, or for the purpose of carrying out the re- acquired for
quirements of the Railway Committee, or in the exercise of the
powers conferred upon it by the Railway Committee, may enter railway.
upon any land which is not more than two hundred yards
distant from the centre of the located line of the railway, and
may occupy the said land as long as is necessary for the pur-
poses aforesaid ; and all the provisions of law at any time ap.
plicable to the taking of land by the company, and its valuation,
and the compensation therefor, shall apply to the case of any land
so required ; but before entering upon any land for the purposes Deposit in
aforesaid, the company shall, in case the consent of the owner such case-
is not obtained, pay into the office of one of the superior courts
for the Province in which the land is situated, such sum, with
interest thereon for six months, as is, after two clear days'
notice to the owner of the land, or to the person empowered to
lii THE RAILWAY LAW OF CANADA.
convey the same, or interested therein, fixed by a judge of any
one of such superior courts.
Power to take 113. Whenever stone, gravel, earth, sand or water is re-
materials for nuire(j for the construction or maintenance of any railway or any
construction. ... . ,
part thereof, the company may, if it cannot agree with the owner
of the land on which the same are situa'ed, for the purchase
thereof, cause a land surveyor, duly licensed to act as such (in the
Province, district or county, or an engineer) (a) to make a map
and description of the property so required, and it shall serve a
copy thereof, with its notice of arbitration as in the case of
acquiring the roadway ; and all the provisions of this Act (respect-
ing expropriation of lands) (i) shall apply to the subject matter
of this section, and to obtaining materials as aforesaid; and
such proceedings may be had by the company, either for the
right to the fee simple in the land from which the material is
Notice in case taken, or for the right to take material for any time it thinks
of arbitration, necessary, — and the notice of arbitration, if arbitration is re-
sorted to, shall state the interest and powers required.
R. S. Q., Art. 5164 (34). — (I) "as to the service of the said notice of
arbitration, compensation, deeds of sale, payment of money into Court, the
right to sell, and the right to convey, and the persons from whom lands may
be taken, or who may sell."
R. S. N. S.. ch. 53, sec. 9 (33). Same as Ontario, excepting («) omitted.
Power to 114. Whenever any stone, gravel, earth, sand or water is so
make sidings, take;n at a distance from the line of the railway, the company
"' may lay down the necessary sidings, water pipes or conduits
and tracks, over or through any lands intervening between the
railway and the land on which such material or water is found,
whatever is the distance, and all the provisions of this Act,
except such as relate to the filing of plans and publication of
notice, shall apply, and the powers thereby granted may be used
and exercised to obtain the right of way from the railway to the
land on which such materials are situated ; and such right may
be acquiied for a term of years, or permanently, as the company
thinks proper ; and the powers in this and the next preceding
Maintenance section contained may, at all times, be exercised and used in all
railway!1^ respects, after the railway is constructed, for the purpose of re-
pairing and maintaining the railway.
R. S. Q., Art. 5164 (35).
R. S. N. S.,ch. 53, sec. 9 (34).
DOMINION AND PROVINCIAL RAILWAY ACTS liii
115. Whenever, for the purpose of procuring sufficient land if the whole
for stations or gravel pits, or for constructing, maintaining and Parcel °f
using the railway, any land may be taken under the compulsory chased with
provisions of this Act, and by purchasing the whole of any lot or advantage,
parcel of land over which the railway is to run, or of which any
part may be taken under the said provisions, the company can
obtain the same at a more reasonable price or to greater advan-
tage than by purchasing the roadway line only, or only such part
as aforesaid, the company may purchase, hold, use or enjoy the
whole of such lot or parcel, and also the right of way thereto, if
the same is separated from its railway, and may sell and convey
the same, or any part thereof, from time to time, as it deems ex-
pedient; but the compulsory provisions of this Act shall not Compulsory
apply to the taking of any portion of such lot or parcel not Provis'ons not
c *i c -J to aPPv-
necessary for the purposes aforesaid.
R. S. Q., Art. 5164 (36).
R. S. N. S., cb. 53, sec. 9 (35).
116. Every company (i) may, on and after the first day of Erection of
November, in each year, enter into and upon any lands of Her snow fencesJ
Majesty, or into and upon the lands of any (2) person whomso-
ever, lying along the route or line of its railway, and may erect
and maintain snow fences thereon, subject to the payment of such
land damages, if any, as are thereafter established, in the manner
provided by law with respect to such railway, to have been ac-
tually suffered ; but every snow fence so erected shall be removed And removal
on or before the first day of April then next following. thereof.
R. S. N. S.,ch. 53, sec. 16 (7). Same as Quebec, excepting (2) addi-
tional " subject to the jurisdiction of the Parliament of Canada " and substi-
tute "Government of Canada " for " Government of this Province."
R. S. Q., Art. 5171 (7). — (i) "heretofore incorporated, or which here-
after may be incorporated, as well as the Government of this Province, with
respect to all railways constructed by or being the property or under the con-
trol of the Province," (2) 'corporation or."
POWERS RESPECTING LOCATION OF LINE, DEVIATIONS AND
CHANGES DEFINED AND LIMITED.
117. No lateral deviation of more than one mile shall be Wliat devia-
made from the located line of the railway or from the places tion shall be
assigned thereto in the map or plan and book of reference, or pro- a e '
files, except in such instances as are provided for in the special
Act.
liv THE RAILWAY LAW OF CANADA.
R. S. O., ch. 170, sec. 10 (n). "No deviation of more than one mile
from the line of the railway or from the places assigned thereto in the said
map or plan and book of reference, or plans or sections, shall be made into,
through, across, under or over any part of the lands not shown in such map
or plan and book of reference, or plans or sections, or within one mile of the
said line and place, save in such instances as are provided for in the special
Act."
R. S. Q., Art. 5163 (il). Same as Ontario.
N. B., 1891, ch. 18, sec. lo (U). Same as Ontario.
R. S. N. S., ch. 53, sec. 8 (n). Same as Ontario.
As to error in 118. The railway may be (made) (i) carried (or placed) (2)
across or upon the lands of any person on the located line, or
within the distance from such line as aforesaid, although the
name of such person has not been entered in the book of refer-
ence, through error or any other cause, or although some other
person is erroneously mentioned as the owner of or entitled to
convey, or is interested in such lands.
R. S. O., ch. 170, sec. 10 (12), sec. 9 (4). (i) Omitted, (2) omitted.
R. S. Q., Art. 5163 (12), Art. 5132 (4). Same as Ontario.
N. B., 1891, ch. 18, sec. 10 (12), sec. 9 (4). Same as Ontario.
R. S. N. S., ch. 53, sec. 8 (12). Same as Ontario.
Mines to be 119. No company shall, without the authority of the Railway
protected. Committee, locate the line of its proposed railway, or of any
branch thereof, so as to obstruct or interfere with or injuriously
affect the working of, or the access or adit to any mine then
open, or for opening which preparations are, at the time of such
location, being lawfully and openly made.
R. S. O., ch. 170, sec. 21. The company shall not be entitled to any
mines of iron, slate, or other minerals under any land purchased by them, ex-
cept only such parts thereof as shall be necessary to be dug or carried away,
or used in the construction of the works, unless the same shall have been ex-
pressly purchased ; and all such mines, excepting as aforesaid, shall be
deemed to be excepted out of the conveyance of such lands, unless they shall
have been expressly named therein and conveyed thereby.
22. If the owner, lessee, or occupier of any mines or minerals lying under
the railway or any of the works connected therewith or within the prescribed
distance, or, where no distance shall be prescribed, forty yards therefrom, be
desirous of working the same, such owner, lessee or occupier shall give to the
company notice in writing of his intention so to do thirty days before the com-
mencement of working, and upon the receipt of the notice it shall be lawful
for the company to cause the mines to be inspected by any person appointed
by them for the purpose, and if the company shew to the satisfaction of the
Commissioner of Public Works that the working of the mines or minerals is
likely to damage the works of the railway, and if the company be willing to
make compensation for the mines or any part thereof to the owner, lessee or
occupier thereof, then he shall not work or get the same ; and if the company
and the owner, lessee or occupier do not agree as to the amount of the com-
pensation, the same shall be settled as in other cases of disputed compensation
under this Act.
DOMINION AND PROVINCIAL RAILWAY ACTS. lv
23. If before the expiration of such thirty days the company do not state
their willingness to treat with the owner, lessee or occupier for the payment
of the compensation, it shall be lawful for him to work the said mines or any
part thereof for which the company shall not have agreed to pay compensa-
tion, so that the same be done in a manner proper and necessary for the bene-
ficial working thereof, and according to the usual manner of working such
mines in the district where the same shall be situate; and if any damage or
obstruction be occasioned to the railway or works by improper working of
the mines, the same shall be forthwith repaired or removed, as the case may
require, and the damage made good by the owner, lessee or occupier of the
mines or minerals, and at his own expense ; and if the repair or removal be
not forthwith done, or if the company shall so think fit without waiting for
the same to be done by the owner, lessee or occupier, it shall be lawful for
the company to execute the same and recover from the owner, lessee or oc-
cupier the expense occasioned thereby by action in any Court of competent
jurisdiction.
24. If the working of such mines under the railway, or works, or within
the above mentioned distance therefrom, be prevented as aforesaid by reason
of apprehended injury to the railway, it shnll be lawful for the respective
owners, lessees and occupiers of such mines, and whose mines shall extend so
as to lie on both sides of the railway, to cut and make such and so many air-
ways, headways, gateways, or water levels through the mines, measures, or
strata, the working whereof shall be so prevented, as may be requisite to en-
able them to ventilate, drain, and work their said mines; but no such airway,
headway, gateway, or water level shall be cat or made without first procur-
ing the consent in writing of the Commissioner of Public Works of the Pro-
vince ; nor shall the same be cut or made upon any part of the railway or
works, or so as to injure the same, or to impede the passage thereon.
25. The company shall, from time to time, pay to the owner, lessee, or
occupier of any such mines extending so as to lie on both sides of the railway
all such additional expenses and losses as shall be incurred by the owner,
lessee or occupier, by reason of the severance of the lands lying over such
mines by the railway, or of the continuous working of such mines being in-
terrupted as aforesaid, or by reason of the same being worked in such manner
and under such restrictions as not to prejudice or injure the railway, and for
any minerals not purchased by the company which cannot be obtained by
reason of making and maintaining the railway ; and if any dispute or ques-
tion shall arise between the company and such owner, lessee, or occupier as
aforesaid, touching the amount of such losses or expenses, the same shall be
settled by arbitration under this Act.
26. For better ascertaining whether any such mines are being worked, or
have been worked, so as to damage the railway or works, it shall be lawful
for the company, after giving twenty-four hours' notice in writing, to enter
upon any lands through or near which the railway passes wherein any such
mines are being worked, or are so supposed to be, and to enter into and re-
turn from any such mines or the works connected therewith ; and for that
purpose it shall be lawful for them to make use of any apparatus or machinery
belonging to the owner, lessee or occupier of such mines, and to use all
necessary means for discovering the distance from the railway to the parts of
such mines which are being worked, or about so to be.
27. If the owner, lessee or occupier of any such mine shall refuse to allow
any person appointed by the company for that purpose to enter into and in-
spect any such mines or works in manner aforesaid, every person so offending
shall, for every such refusal, forfeit to the company a sum not exceeding
$100.
Ivi THE RAILWAY LAW OK CANADA.
28. If it appear that any such mines have been worked contrary to the
provisions of the preceding seven sections, the company may, if they think
fit, give notice to the owner, lessee or occupier thereof to construct such
works, and to adopt such means as may be necessary or proper for making
safe the railway and preventing injury thereto ; and if after such notice such
owner, lessee or occupier do not forthwith proceed to construct the works
necessary for making safe the railway, the company may themselves construct
such works and recover the expenses thereof from the owner, lessee or
occupier by action in any Court of competent jurisdiction.
Change in ISO. Any company, (a) which desires at any time to change
line of railway tne location of its line of railway in any particular part, for the
may be made. ... , . ..
purpose of lessening a curve, reducing a gradient, or otherwise
benefiting such line of railway, or for any other purpose of
public advantage, may (with the approval of the Railway Com-
mittee) (i) make such change; and all the provisions of this Act
shall refer as fully to the part ofvsuch line of railway so at any
time changed or proposed to be changed, as to the original line ;
No change of but no company shall extend its line of railway beyond the
terminus. termini mentioned in the special Act.
R. S. O., ch. 170, sec. 9 (19). — (i) Omitted.
R. S. Q., Art. 5132 (18). Same as Ontario.
R. S. M., ch. 130, sec. 14. — (a) " Heretofore or hereafter incorporated,"
(I) omitted.
N. B., 1891, ch. 18, sec. 9 (18). Same as Ontario.
R. S. N. S., ch. 53, sec. 7 (18). Same a= Ontario.
POWER TO CONSTRUCT BRANCH LINES DEFINED AND LIMITED.
Power to con- 121. Any company may, for the purpose of connecting any
struct branch city, town, village, manufactory or mine, or any quarry of stone
certain pur- or s^atej or any well or sPring> with the main line of the railway
poses. of the company, or with any branch thereof, or with any railway
worked or leased by the company, or for the purpose of giving
increased facilities to business, or for the purpose of transport-
ing the products of any such manufactory, mine, quarry, well or
spring, build, make and construct, and work and use, sidings,
switches or branch lines of railway, not exceeding in any one
Notice to be case six miles in length ; but such company shall not proceed to
locate or build any branch line of more than one-quarter of a
mile in length, under this section, until public notice has been
given, for six weeks, in some newspaper published in the (county
or) (i) counties through or in which such branch line is to be
made, that it is the intention of the company to apply to the
(Railway Committee) (2) to sanction the building of such branch
DOMINION AND PROVINCIAL RAILWAY ACTS. Ivii
line, and the appropriation of the necessary lands for thnt pur-
pose, under the compulsory powers vested in such company
by this Act, or by any other Act in its behalf ; nor unless the Map or plan,
company has, prior to the first publication of such notice, de- etc>
posited in the registry office of any city, county or part of a
county, in which the line or any part thereof is to be constructed,
a map or plan and book of reference indicating the location of
the line ; nor until the company has submitted the same to, and Approval of
such map or plan and book of reference have been approved of £ailw*£
Committee.
by the (Railway Committee), (3) after the expiration of the said
notice ; and the order of the (Railway Committee) (4) appro v- Limitation
ing such map or plan and book of reference shall limit the time, °
which shall not exceed two years from the date of such order,
within which the company may construct such branch line.
R. S. Q., Art. 5132, sec. 17. (i) Omitted, (2) " Lieut enant-Governor in
Council," (3) " Lieutenant-Governor in Council," (4) " Lieutenant-
Governor in Council."
R. S. O., ch. 170, sec. 9 (18). " Any company (a) may construct a branch
or branches not exceeding (six) (b) miles in length, from any terminus or
station of the railway of such company, whenever a by-law sanctioning the
same has been passed by the municipal council of the municipality within
the limits of which the proposed branch is situate (and no such branch
shall, as to the quality and construction of the road, be subject to any of the
restrictions contained in the special Act of incorporation of the company or
in this Act, nor shall anything in either of the said Acts authorize any com-
pany to take for such branch any lands belonging to any party without the
consent of such party first obtained)." (c)
R. S. M., ch. 130, sec. 13. Same as Ontario, excepting (a) additional
" heretofore or hereafter incorporated," (i>) " ten," (c) substitute " and for
the purpose of building said branch the company shall have the same rights,
powers and authorities as if the same were part of the main line."
N. B., 1891, ch. 18, sec. 9 (8). " To make branch railways, if required, and
provided by the special Act, and to manage the same, and for that purpose
to exercise all the powers, privileges and authorities necessary therefor, in
as full and ample a manner as for the railway."
R. S. N. S., ch. 53, sec. 7 (17). Same as Dominion, excepting after (i)
additional "and if no newspaper is published in such county or counties,
then in the nearest newspaper " (2) (3) (4) " Governor in-Council."
Every such company may, for any such purpose, ex- powers as to
ercise all the powers given to it with respect to its main line such brancn
. . , . . lines.
under this and the special Act ; and each and every provision
of such Acts which is applicable to such extension shall extend
and apply to every such siding, switch or branch line of railway.
R. S. Q., Art. 5132 (17).
R. S. N. S., ch. 53, sec. 7 (17).
Iviii
THE RAILWAY LAW OF CANADA.
Surveys and
Map or plan
reference °
May be in
to\l°de'posit
ed.
Tobeex-
ammed and
copies depos-
ited.
PLANS AND SURVEYS.
123. (i) Surveys and levels shall be made and taken of the
lands through which the railway is to pass, together with a map
or plan and profile thereof, and of its course and direction, and
°^ ^e 'anc^s intended to be passed over and taken thereof, as far
as then ascertained ; and a book of reference for the railway
shall also be made, in which shall be set forth : —
(a) A general description of the said lands ;
(^) The names of the owners and occupiers thereof, as far as
they can be ascertained ; and —
(c) Everything necessary for the right understanding of such
map or plan (and profile). (2)
R. S. O., ch. 170, sec. 10 (i). — (i) Additional," Plans and surveys shall
be made and corrected as follows," (2) omitted.
R. S. Q., art. 5163 (I).
R. S. N. S.. ch. 53, sec. 8 (i). Same as Ontario, excepting (2) " as may
be required by the Governor-in-Council."
124:. The map or plan and book of reference and profile
ma^ ^e ma(^e of sections of the railway, and shall be deposited
at the department.
125. The map or plan and book of reference and profile
s]-,a]i ]je examined and certified by the Minister or by the deputy,
an(^ a duplicate thereof so examined and certified shall be de-
posited at the department, and the company shall (deposit) (i)
copies of such map or plan and book of reference and profile, or
of such parts thereof as relate to each (district or) (2) county
through which the railway is to pass, in the offices of the re-
gistrars of deeds for such (districts or) (2) counties respectively.
R. S. O., ch. 170, sec. 10 (2). " A map or plan and book of reference
shall be examined and certified by the (Commissioner of Crown Lands or his
Deputies), (a) who shall deposit copies thereof, in the offices of the clerks of
the peace in the (districts or) (6) counties through which the railway passes,
and also in the office of the (Provincial Secretary), (c) and shall also deliver
one copy thereof to the company."
R. S. Q., Art. 5163 (2). Same as Dominion, excepting (i) "furnish," (2)
omitted.
N. B., 1891, ch. 1 8, sec. 10(2). Same as Ontario, excepting («} "Chief
Commissioner of Public Works," (0) omitted, (c) '•' Chief Commissioner
of Public Works."
R. S. N. S., ch. 53, sec. 8 (2). Same as Dominion, excepting " Commis-
sioner of Public Works or his deputy," also " office of the clerk of the muni-
cipalities."
DOMINION AND PROVINCIAL RAILWAY ACTS. lix
R. S. M., ch. 130, sec. 15. "The Company shall deposit with the
district registrar of each land titles district, through or in which its rail-
way is intended to be built, plans of the right of way and station grounds of
or appurtenant to the railway, so far as the same may be in such district, and
showing the area taken from each quarter section, parish lot or other parcel
of land, which plans must be certified as required by " The Real Property
Act."
Any person may resort to such copies, and make ex- Access to
tracts therefrom or copies thereof, as occasion requires, paying copies>
to the (registrar of deeds) (i) at the rate often cents for every
hundred words. (2)
R. S. O., ch. 170, sec. 10 (3). (I) " Provincial Secretary or Clerks of
the Peace," (2) additional, "Any person feeling aggrieved by the pro-
posed location of the line of railway may, within (ten) (a) days after the
deposit of the map or plan and book of reference aforesaid in the office of
the Clerk of the Peace of the (district or) (b) county where the lands are
situated, the location through which is complained of, apply to the Lieu-
tenant-Governor in Council, setting forth his objections to the location of the
proposed line, and the Lieutenant -Governor in Council shall, if he considers
sufficient cause therefor exists, appoint a disinterested engineer, who shall
examine the said proposed line, and after hearing the parties, he shall con-
firm or alter the same as may be consistent with the just rights of all parties
and of the public. The determination of the engineer approved by the
Lieutenant-Governor in Council shall, within (ten) (c) days after his ap-
pointment, be made and certified, and such certificate shall be filed in the
office of the Clerk of the Peace for the (district or) (if) county where the
lands are situated.
(fl) " The said engineer shall be entitled to reasonable fees for each day
employed in connection with the said examination and work, together with
his actual expenses incurred therein, and the amount shall in the first in-
stance be paid by the person applying for his appointment ; but if the pro-
posed route is altered or changed by the engineer, the railway company shall
refund to the applicant the amount so paid."
R. S. Q., Art. 5163 (3). Same as dominion.
N. B., 1891, ch. 18, sec. 10 (3). Same as Ontario, exce, ting (a)
" Thirty," (6) omitted, (c) '< Fourteen," (</) omitted.
R. S. N. S., ch. 53, sec. 8 (4). Same as Dominion, excepting (i) " clerks
of the municipalities.
Such map or plan and book of reference and profile so Certified
certified, or a true copy thereof (or an extract therefrom) (i) cer. copies to be
tified by the (Minister or his deputy), (2) or by any registrar of
deeds, shall be evidence in any court of justice or elsewhere.
R. S. O., ch. 170, sec. 10 (4). " The triplicates of the map or plan and
book of reference so certified, or a true copy thereof certified by the (Provin-
cial Secretary), (a) or by the Clerks of the Peace, shall be good evidence in any
Court of Justice or elsewhere."
R. S. Q., Art. 5163 (4). Same as Dominion, excepting (i) omitted, (2)
" Commissioner of Public Works."
N. B., 1891, ch. 18, sec. lo (4). Same as Ontario, excepting (a) " Chief
Commissioner."
R. S. N. S., ch. 53, sec. 8 (4). Same as Quebec, except " clerks of the
municipalities" instead of" registrar of deeds "
lx THE RAILWAY LAW ui-1 CANADA.
Errors, how 128. Any omission, mis-statement or erroneous description
remedied. , . , , - , , c .
of such lands, or of the owners or occupiers thereof, in any map
or plan or book of reference, may, after ten days' notice has been
given to the owners (i) of such lands, (2) be corrected by two
justices, on application made to them for that purpose ; and if it
appears to them that such omission, mis-statement or erroneous
description arose from mistake, the justices shall certify the same
accordingly.
R. S. O., ch. 170, sec. 10 (5).
R. S. Q., Art. 5163 (5).
N. B , 1891, ch. 18, sec. 10 (5)
R. S. N. S., ch. 53, sec. 8 (5) as amended by 51 Vic., ch. 29. Same as
Dominion excepting (i) " or persons named or represented on or in said plan,
map or book of reference as the owners," (2) "or after notice given by
publication in at least three successive issues in a newspaper published in the
county where such lands lie."
Certificate re- 129. The certificate shall state the particulars of any such
lating there- omission, and the manner thereof, and shall be deposited with
the (registrars of deeds) (i) of the (districts or) («) counties,
respectively, in which such lands are situate, and shall be kept
by them together with the other documents to which it relates,
and thereupon such map or plan, or book of reference, shall be
deemed to be corrected according to such certificate ; and the
company may make the railway in accordance with the certifi-
cate.
R. S. O., ch. 170, fee. 10 (6).— (i) " Clerks of the Peace."
R. S. Q., Art. 5163 (6).— (a) Omitted.
N. B., 1891, ch. 18, sec. 10 (6).— (i) "Clerks of the Peace," (a) omitted.
R. S. N. S., ch. 53, sec. 8 (6). Same as Dominion, excepting (i) " clerks
of the municipality."
Alterations 13O. If any alterations from the original plan or survey are
from ongma jnten(je(j to ^g made in the line or course of the railway, a (map
or plan and profile) (i) of such alterations (2) on the same scale
and containing the same particulars as the original (map or plan
and profile) (3) shall be deposited in the same manner as the
original map or plan (and profile) (4), and copies of or extracts
from such (map or plan and profile) (5), so far as they relate to
the several districts or counties in or through which such altera-
tions are (intended) (6) to be made, shall be deposited with the
(registrars of deeds) (7) of such districts and counties.
R. S. O., ch. 170, sec. 10 (7). — (i) Substitute "plan and section in tripli-
cate," (2) " as have been approved by the Legislature," (3) " plan and sur-
DOMINION AND PROVINCIAL RAILWAY ACTS. Ixi
vey," (4) omitted, (5) "plan or section," (6) " authorized," (7) " Clerks of
the Peace."
R. S. Q., Art. 5163 (7). Same as Ontario, excepting (i) omitting " tripli-
cate."
N. B , 1891, ch. 18, sec. 10 (7). Same as Ontario, excepting (2) " Gover-
nor in Council."
R. S. N. S., ch. 53, sec. 8 (7). Same as Ontario, excepting (i) omitting
'' triplicate, (2) " Governor-in-Council," (7) " clerks of the municipalities."
131. Until such original map or plan and book of reference Works not to
(and profile) (i) or the (map; (2) or plan and profile of the ^.Foceeded
alterations have been so deposited, the construction of the rail- map, etc., are
way, or of the part thereof affected by the alterations, as the case deposited,
may be, shall not be proceeded with.
R. S. O., ch. 170, sec. 10 (8). — (i) Omitted, (2) omitted.
R. S. Q , Art. 5163 (8). Same as Ontario.
N. B., 1891, ch. 18, sec. 10 (8).
R. S. N. S., ch. 53, sec. 8 (8). Same as Ontario.
132. The (registrars of deeds) (i) shall receive and retain Custody of
the copies of the original (maps or plans and books of reference copies by
and profiles) (2) and copies of the (maps) (3) or plans and pro- deeds,
files of alterations, and extracts thereof respectively, and shall
permit all persons interested to inspect any of the documents
aforesaid, and to make copies of and extracts from the same j
and every registrar of deeds who refuses so to do is liable, on
summary conviction, for each offence to a penalty of four
dollars.
R. S. O., ch. 170, sec. 10 (9). — (i) "Clerks of the Peace," (2) " plans and
surveys," (3) omitted.
R. S. Q., Art. 5163 (9). Same as Dominion Act, excepting (2) and (3)
same as Ontario.
N. B., 1891, ch. 18, sec. lo (9). Same as Ontario, excepting penalty,
which is $50.
R. S. N. S., ch. 53, sec. 8 (9). Same as Ontario, excepting (i) " clerks
of the municipality."
133. The copies of the maps or plans and books of reference copies cer-
(and profiles) (i) or of any alterations or corrections thereof, or tified by
extracts therefrom, certified by the (registrar of deeds) (2)
be received in all courts of justice and elsewhere as evidence of
the contents thereof, and the (registrar of deeds) (^3) shall, when
required so to do, give such certificate to any person interested.
(4)
R. S. O., ch. 170, sec. 10 (10).— (i) Omitted, (2) " Clerk of the Peace," (3)
"Clerk of the Peace," (4) "when required."
Ixii
THE RAILWAY LAW OF CANADA.
Map of the
completed
railway to be
filed at the
department.
Penalty for
neglect.
Scale and
paper.
Conveyance
to the com-
pany.
R. S. Q.j Art. 5163 (10). Same as Dominion, excepting (l) omitted, (4)
" when required."
N. B., 1891, ch. 1 8, sec. 10 (10). Same as Ontario .
R. S. N. S., ch. 53, sec. 8 (10). Same as Ontario, excepting (2) (3)
" clerk of the municipality."
134. A map (or plan) (i) and profile of the completed rail-
way and of the land taken or obtained for the use thereof, shall,
within (six months) (2) after completion of the undertaking, be
made and filed at the (department), (3) and maps or plans of the
parts thereof, located in different (districts and) (4) counties
shall be filed in the registry offices for the (districts and coun-
ties) (5) in which such parts are respectively situate (and every
company which fails or neglects to file such maps or plans and
profiles at the department, or to file such maps or plans in such
registry offices within the said period, shall incur a penalty of
two hundred dollars, and a like penalty for each and every
month during which such failure or neglect continues). (6)
R. S. O., ch. 170, sec. 10 (13). — (i) Omitted, (2) " a reasonable time," (3)
"office of the Commissioner of Public Works," (4) omitted, (5) "registry
divisions," (6) no provision for penalty.
R. S. Q., Art. 5163 (13).— (i) Omitted, (3) " Department of Public Woiks,"
(4) omitted.
N.B., 1891, ch. 18, sec. 10 (13). Same as Ontario, excepting (4) omitted,
(5) " counties."
R. S. N. S., ch. 53, sec. 8 (13). Same as Dominion, excepting (3)
" office of the Commissioner of Public Works.
135. Every map (or plan and profile) (i) shall be drawn on
such a scale and on such paper as are, from time to time, desig-
nated for that purpose by the (Minister), (2) and shall be certified
and signed by the president or engineer of the company.
R. S. O., ch. 170, sec. 10 (14). — (i) Omitted, (2) " Commissioner of Public
Woiks."
R. S. Q., Art. 5163 (14). Same as Ontario.
N. B., 1891, ch. 18, sec. 10 (14). Same as Ontario.
R. S. N. S., ch. 53, sec. 8 (14). Same as Ontario.
LANDS AND THEIR VALUATION.
136. All (i) tenants in tail or for life (grevts de substitution},
(2) guardians (curators), (3) executors, administrators (trustees,
and all persons whomsoever), (4) not only for and on behalf of
themselves, their heirs and successors, but also for and on behalf
of those whom they represent, whether infants, issue unborn,
lunatics, idiots, femes-covert, or other persons, seized, possessed
DOMINION AND PROVINCIAL RAILWAY ACTS. Ixiii
of, or interested in any lands, may contract and sell and convey
to the company all or any part thereof.
R. S. O., ch. 170, sec. 13 (i). — (i) Add "corporations and persons what-
soever," (2) omitted, (3) omitted, (4) "and all other trustees whatsoever."
R. S. Q., Art. 5164 (3). Same as Ontario, substituting "usufructuaries
Institutes " for " tenants in tail or for life," and "tutors" for "guardians,"
also adding "curators."
N. B., 1891, ch. 18, sec. 13. Same as Ontario, omitting " in tail."
R. S. M., ch.' 130, sec. 17. Same as Ontario, with the addition of
" curators."
R. S. N. S., ch. 53, sec. 9 (3). Same as N. B., adding " curators."
137. In all cases in which such persons have no light in law Order of judge
to sell or convey the rights of property of the said land, such recluired in -
J ° f certain cases,
persons shall obtain from a judge, (i) after due notice to the
persons interested, the right to sell the said land ; and the said
judge shall give such orders as are necessary to secure the in-
vestment of the purchase money in such a manner as he deems
necessary, in accordance with the law of the Province, to secure
the interests of the owner of the said land.
R. S. O., ch. 170, sec. 18. " Where more persons than one are proprie-
tors of any land as joint tenants or tenants in common, any contract or agree-
ment made in good faith with any person being proprietor or with any person
being together proprietors of one-third or more of such land, as to the amount
of compensation for the same, or for any damages thereto, shall be binding as
between the remaining proprietor or proprietors as joint tenants, or tenants in
common ; and the proprietor or proprietors who have so agreed may deliver
possession of such land, or empower the entry upon the same, as the case may
be."
R. S. Q., Art. 5164 (3). Same as Dominion, excepting (i) "of the
Superior Court."
R. S. M., ch. 130, tec. 20. Same as Ontario.
R. S. N. S., ch. 53, sec. 9 (3). Same as Dominion, excepting " com-
petent " before " Judge."
138. The powers (herein) (i) conferred upon rectors in pos- Limitation of
session of glebe lands (in the Province of Ontario), (2) ecclesias- powers in cer-
ticaland other corporations, trustees of land for church or school tai
purposes. (3) executors appointed by wills under which they are
not invested with any power over the real property of the testa-
tor, administrators of persons dying intestate, but at their death
seized of real property, shall only extend and be exercised with
respect to any of such lands actually required for the use and
occupation of a company.
R. S. O., ch. 170, sec. 13 (2). — (;) "by the preceding section," (2)
omitted, (3) " or either."
R. S. Q., Art. 5164 (4). Same as Ontario, omitting " Rectors in posses-
sion of glebe lands."
Ixiv THE RAILWAY LAW OF CANADA.
R. S. M., ch. 130,860.17. Same as Dominion, excepting (2) omitted,
(3) " or either."
N. B., 1891, ch. 18, sec. 13 (2). Same as Ontario.
R. S. N- S., ch. 53, sec. 9 (4). Same as Ontario.
Effect of sale 139. Any contract, agreement, sale, conveyance and as-
under preced-surance so mac}e hereunder shall be valid and effectual in law.
ing sections.
to all intents and purposes whatsoever, and shall vest in the
company receiving the same, the fee simple in the lands in such
deed described, freed and discharged from all trusts, restrictions
Seller indem-anc{ limitations whatsoever; and the person (i) so conveying is
hereby indemnified for what he (2) does by virtue of or in
pursuance of this Act.
R. S. O., ch. 170. sec. 14. — (i)" or corporation," (2) " or it."
R. S. Q., Art. 5164 (5). Same as Ontario.
R. S. M., ch. 130, sec. 18. Same as Ontario.
N. B., 1891, ch. 18, sec. 14. Same as Ontario.
R. S. N. S., ch. 53, sec. 9 (5). Same as Ontario.
Responsabili- 14O. The company shall not be responsible for the disposi-
to pur- ^on Qf any purchase money for lands taken by it for its pur-
poses, if paid to the owner of the land or into court for his
benefit, (i)
R. S. O., ch. 170, sec. 15. — (i) " as hereinafter provided."
R. S. Q., Art. 5164 (6). Same as Ontario.
R. S. M., ch. 130, sec. 18. Same as Dominion, excepting (i) " as pro-
vided by the Manitoba Expropriation Act."
N. B., 1891, ch. 18, sec. 15. Same as Ontario.
R. S. N. S-, ch. 53, sec. 9 (6). Same as Ontario.
Effect of con- 141. Any contract or agreement made by any person
before deposit authorized by this Act to convey lands, and made before the
of map, etc. deposit of the map or plan and book of reference, and before
the setting out and ascertaining of the lands required for the
railway, shall be binding at the price agreed upon for the same
lands, if they are afterwards so set out and ascertained with-
in one year from the date of the contract or agreement, and
although such land has, in the meantime, become the property
of a third person ; and possession of the land may be taken and
the agreement and price may be dealt with as if such price had
been fixed by an award of arbitrators, as hereinafter provided,
and the agreement shall be in the place of an award.
R. S. O., ch. 170, sec. 16.
R. S. Q.,Art. 5164 (7).
N. B., 1891, ch. 18, sec. 16.
R. S. N. S., ch. 53, sec. 9 (7).
DOMINION AND PROVINCIAL RAILWAY ACTS. Ixv
. All (i) persons who cannot, in common course of law, Fixed rent
sell or alienate any lands so set out and ascertained, shall agree
upon a fixed annual rent as an equivalent, and not upon a tain cases,
principal sum, to be paid for the lands ; and if the amount of
the rent is not fixed by voluntary agreement or compromise, it
shall be fixed, and all proceedings shall be regulated in the
manner herein prescribed. (2)
R. S. O., ch. 170, sec. 17. — (i) " corporations or."
R. S. Q.,Art. 5164 (8). Same as Ontario.
R. S. M., ch. 130, sec. 19. Same as Ontario, excepting (2) add " by the
Manitoba Expropriation" Act, for determining the compensation to be
allowed for land expropriated."
N. B., 1891, ch. 18, sec. 17. Same as Ontario .
R. S. N. S., cb. 53, sec. 9 (8). Same as Ontario.
143. For the payment of such annual rent and every other Lien for the
annual rent agreed upon or ascertained, and to be paid for the
purchase of any lands, or for any part of the purchase money
of any lands, which the vendor agrees to leave unpaid, the rail
way and the tolls thereon shall be liable and chargeable in pre
ference to all other claims and demands thereon whatsoever
(except as to the charges created by section ninety-four of this
Act), (i) upon the deed creating such charge and (liability) (2)
being duly registered in the registry office of the proper district;
county or registration division.
R. S.O., ch. 170, sec. 17.— (i) Omitted.
R. S. Q., Art. 5164 (9). Same as Ontario, excepting (2) " mortgage."
R. S. M., ch. 130, sec. 10. Same as Ontaiio.
N. B , 1891, oh. 18, sec. 17.
R. S. N. S-, ch. 53, sec. 9 (9). Same as Ontario.
14:4. After the expiration of (ten days) (i) from the deposit After ten days
of the map or plan and book of reference (in the office rft
registrar of deeds), (a) and after notice thereof has been given owner,
in at least one newspaper, if there is any, published in each of
the (districts and) (2) counties through which the railway is
intended to pass, (3) application may be made to the owners of
lands, or to persons empowered to convey lands, or interested
in lands which may suffer damage from the taking of materials or
the exercise of any of the powers granted for the railway ; and,
thereupon, agreements and contracts 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
E
Ixvi THE RAILWAY LAW OF CANADA.
such compensation shall be ascertained, as seems expedient to
Arbitration both parties ; and in case of disagreement between them, or any
m default of
agreement. °* them, all questions which may arise between them shall be
settled as (4) hereinafter provided.
R. S. O , ch. 170, sec. 19. — (i) " one month," (a) omitted.
R. S. Q., Art. 5164 (II).— (l) " one month, " (2) omitted, (a) omitted.
R. S. M., ch. 130, sec. 21. Same as Dominion from (3) to (4), all
prior to (3) omitted. After (4) substitute " in the ' Manitoba Expropriation
Act ' mentioned."
N. B., 1891, ch. 18, sec. 18. Same as Quebec.
R. S. N. S., ch. 53, sec. 9 (10). Same as Dominion, excepting (i) " one
month," (a) omitted.
Deposit to be 14:5. The deposit of a map or plan and book of reference,
general ^ ^ notjce of such deposit, shall be deemed a general notice
notice. *
to all the parties, (i) of the lands which will be required for
the railway and works (and the date'of such deposit shall be
the date with reference to which such compensation or damages
shall be ascertained). (2)
R. S. O., ch. 170, sec. 19 (2). — (i) " aforesaid," (2) omitted.
R. S. QM Art. 5164 (12).— (2) Omitted.
N. B., 1891, ch. 18, sec. 19. Same as Dominion, excepting (i) '•' afore-
said."
R. S. N. S., ch. 53, sec. 9 (n). Same as Ontario, excepting " aforesaid"
omitted.
Notice to the 146. The notice served upon the party shall contain : —
what it shall (#) A description of the lands to be taken, or of the powers
contain. intended to be exercised with regard to any lands, and describ-
ing the lands ;
(b} A declaration of readiness to pay some certain sum or
rent, as the case may be, as compensation for such lands or for
such damages ;
(c) The name of a person to be appointed as the arbitrator
of the company, if its offer is not accepted.
R. S. O., ch. 170, sec. 20 (i).
R. S. Q., Art. 5164(13).
N. B., 1891, ch. 18, sec. 20.
R. S. N. S., ch. 53, sec. 9 (12).
Certificate of 147 • Such notice shall be accompanied by the certificate of
surveyor and a sworn surveyor (for the Province in which the lands are
what it shall J . . . .
state. situated or an engineer) (i) who is a disinterested person, and is
not the arbitrator named in the notice, which certificate shall
state : —
DOMINION AND PROVINCIAL RAILWAY ACTS. Ixvii
(a) That the land, if the notice relates to the taking of land,
shown on the said map or plan, is required for the railway, or is
within the limits of deviation hereby allowed ;
(b) That he knows the land, or the amount of damage likely
to arise from the exercise of the powers ; and —
(c~) That the sum so offered is, in his opinion, a fair compen-
sation for the land and damage aforesaid.
R. S. O.,ch. 170, sec. 20 (2).
R. S. Q., Art. 5164 (13), sub-sec. 3.— (i) Omitted.
N. B., 1891, sec. 20 (2). Same as Quebec.
R. S. N. S., ch. 53, sec. 9 (12). — (i) omitting " or an engineer."
148. If the opposite party is absent from the district or Application
county in which the lands lie, or is unknown, an application forfor service by
service by advertisement may be made to a judge. ment.
R, S. O.,ch. 170, sec. 20 (3). If the opposite party is absent from the
(district or) (i) county in which the lands lie, or is unknown, then upon
application to a judge of (the County Court) (2) accompanied by such
certificate as aforesaid, and by an affidavit of some officer of the company
that the opposite party is so absent, or that after diligent enquiry the party
on whom such notice ought to be served cannot be ascertained, the judge
shall order a notice as aforesaid, but without a certificate, to be inserted three
times in the course of one month in some newspaper, if there is any published
in the said (district or) county. (3) .
R. S. Q., Art. 5164(14). Same as Ontario, excepting (2) "Superior
Court residing in the district, or to any judge of the said Court exercising his
functions therein," (3) " and if there be no newspaper published therein,
then in a newspaper published in some adjacent district or county."
N. B., 1891, ch. 18, sec. 20 (3). Same as Ontario, excepting (i) omitted.
R. S. N. S., ch. 53, sec. 9 (13). Same as Ontario, excepting (2) "Supreme
Court," (3) same as Quebec."
14:9. The application for service by advertisement shall be Certificate
accompanied by such certificate as aforesaid, and by an affidavit and affidavit
of some officer of the company, that the opposite party is so
absent, or that, after diligent inquiry, the person on whom the
notice ought to be served cannot be ascertained ; and the
judge shall order a notice as aforesaid, but without such certi- Notice,
ficate, to be inserted three times in the course of one month,
in a newspaper published in the district or county, or if there is
no newspaper published therein, then in a newspaper published
in some adjacent district or county.
R. S. O., ch. 170, sec. 20 (3). )
R. S. Q., Art. 5164 (14). [-See notes to Dom. Act, stc. 148.
N. B. , 1891, ch. 18, sec. 20 (3). )
R. S. N. S.,ch. 53, sec. 9(13).
Ixviii THE RAILWAY LAW OF CANADA.
R. S. O., ch. 170, sec. 20 (4). " Where a Judge of a County (or district)
(1) Court is interested in lands taken or required within the County in which
he is judge, by any company, for railway purposes, a Judge of the (High)
(2) Court shall, on application of the company, exercise in such case all the
powers given to a Judge of a County Court by the provisions of this section
in cases in which he, such judge of a County Court, is not interested."
N. B., 1891, ch. 18, sec. 20 (4). Same as Ontario, excepting (i) omitted,
(2) " Supreme."
R. S. Q., Art. 5164 (15). ."\Vhenever any such judge is interested in
any lands required by the company within the district in which he resides, or
in which he exercises his functions, or whenever there is no judge in such
district, any judge of the Superior Court, residing or exercising his functions
in any adjoining district, who is not interested shall, on the application of the
company, or of the opposite party, exercise in such cases all the powers
given by this article to the resident judge, or to any judge exercising his
functions in the district in which the required lands are situated.''
Paity not ac- 15O. If, within ten days after the service of such notice, or
and "not "ap^ witn^n one month after the first publication thereof, (i) the
pointing arbi- opposite party does not give notice to the company that he
tiator. accepts the sum offered by it, or does not give notice to it of the
name of a person whom he appoints as arbitrator, the judge shall,
on the application of the company, appoint a (person) (2) to be
sole arbitrator for determining the compensation to be paid as
aforesaid.
R. S. O., ch. 170, sec. 20 (5). (i) "as aforesaid," (2) " sworn sur-
veyor for Ontario."
R. S. Q , Art. 5164 (16). Same as Dominion, excepting (2) " sworn
provincial land surveyor."
N. B., 1891, ch. 18, sec. 20 (5). Same as Ontario, excepting (2) " sworn
surveyor."
R. S. N. S., ch. 53, sec. 9 (14). Same as Dominion, excepting (2) "a
competent peison, as the case may be."
Appointment 151. If the opposite party, within the time aforesaid, gives
of arbitrator notjce to tiie company of the name of his arbitrator, then the
of third arbi- two arbitrators shall jointly appoint a third, or if they cannot
agree upon a third, the judge (0) shall, on the application of the
party or the company, after notice of at least (six) (i) clear days
having been given to the other party, appoint a third abitrator.
R. S. O., ch. 170, sec. 20 (6). (I) " one."
R. S. Q., Art. 5164 (17). (a) " of the Superior Court," (i) " two."
N. B., 1891, ch. 18, sec. 20 (6). (i) " two days."
R. S. N. S., ch. 53, sec. 9 (15), as amended by 58 Vic. ch. 12. Same as
Dominion, excepting (a), "Commissioner of Public Works," (i) "two"
also additional. Ch. 37 of 52 Vic. (a) " But in case the moneys payable for
lands, for track and station pu/poses shall by any law, or under any by-law
of any municipality, be directed to be assessed upon the county in which the-
said lands lie, the said moneys so payable shall in the first instance be ascer-
DOMINION AND PROVINCIAL RAILWAY ACTS. Ixix
tained, and the damages for such land so taken appraised, in all cases by three
arbitrators, one to be appointed by the County Council of the municipality in
which the said lands lie, another by the proprietor of the lands so taken,
and the third by the two arbitrators so chosen, or if they cannot agree upon a
third, then the Commissioner of Public Works shall on the application of the
proprietor or council, or of the company, appoint an arbitrator to be a third
arbitrator ; and in case of the proprietor or County Council from any cause
whatever neglecting for six months from the taking of such lands, or from the
passing of this Act, whichever shall last happen, to appoint an arbitrator in
writing, and to file such appointment with the Clerk of the municipality in
which the said lands lie, then the Commissioner of Public Works shall on the
application of the party, or of the County Council, appoint one arbitrator to
be sole arbitrator." (3) "When the said moneys and damages shall be so
ascertained and appraised, and shall have been assessed upon the County, the
same shall, after the time for collection of the said assessment shall have
elapsed, be paid by the county treasurer directly to the parties entitled." (^)
" The cost of such appraisement shall be borne in equal proportions by the
county and the proprietors."
152. The arbitrators, (T) or the sole arbitrator, as the case Arbitrators to
may be, shall be sworn before a justice of the peace for the dis- swom-
trict or county in which the lands lie, faithfully and impartially
to perform the duties of their or his office, and shall proceed to Their duties,
ascertain such compensation in such way as they or he, or a
majority of them, deem best (and the award of such arbitra-
tors, or of any two of them, or of the sole arbitrator, shall be
final and conclusive except as hereinafter provided) ; (2) but no
such award shall be made, nor any official act be done by such
majority, except at a meeting held at a time and place of which
the other arbitrator has had at least (two) (3) clear days' notice,
or to which some meeting at which the third arbitrator was pre-
sent had been adjourned ; and no notice to either of the parties
shall be necessary, but each party shall be held sufficiently noti-
fied through the arbitrator appointed by him, or whose appoint-
ment he required.
R. S. O., ch. 170, sec. 20 (7). — (i) " or any two of them," (2) omitted,
(3) " one."
R. S. Q.,Art. 5164 (18).— (i)"or two of them," (2) omit "except
as hereinafter provided."
N. B., 1891, ch. 18, sec. 20 (7). Same as Ontario, omitting " district "
before "county."
R. S. N. S., ch. 53, sec. 9 (16). Same as Quebec.
153. The arbitrators, in deciding on such value or compen- Increased
sation (shall) (i)take into consideration the increased value that ^[j^ of re~
will be given to any lands (2) through or over which the railway lands to be
will pass, by reason of the passage of the railway through or Considered-
Ixx
THE RAILWAY LAW OF CANADA.
Costs, by
whom pay-
able.
Witnesses.
over the same, or by icason of the construction of the railway,
and shall set off the increased value that will attach to the said
lands or grounds against the inconvenience, loss or damage that
might be suffered or sustained by reason of the company taking
possession of or using the said lands as aforesaid.
R. S. O., ch. 170, sec. 20 (9). — (i) " are authorized and required to,"
(2) " or grounds."
R. S. Q., Art. 5164 (19). Same as Ontario.
N. B., 1891, ch. 18, sec. 20 (9). Same as Dominion, omitting " by reason
of the passage of the railway through or over the same."
R. S. N. S., ch. 53, sec. 9 (17). Same as Ontario.
154:. If (by an award of arbitrators made under this Act)
(i) the sum awarded exceeds the sum offered by the company,
the costs of the arbitration shall be borne by the company; but
if otherwise, they shall be borne by the opposite party, and be
deducted from the compensation ; and in either case the amount
of such costs, if not agreed upon, may be taxed by the judge.
<*)
R. S. O., cb. 170, sec. 20 (8). — (i) " in any case where three arbitrators
have been appointed," (2) " aforesaid."
R. S. Q., Art. 5164 (20). Same as Ontario, excepting (2) "upon a peti-
tion to that effect duly served upon the adverse party, at least two days
beforehand, with a copy of the bill of costs in detail."
N. B., 1891, ch. 1 8, sec. 20(8). Same as Ontario.
R. S. N. S., ch. 53, sec. 9 (18). Same as Ontario.
155. The arbitrators, or a majority of them, or the sole
arbitrator (shall) (i) examine on oath or solemn affirmation the
parties, or such witnesses as appear before them or him, and
shall administer such oath or affirmation.
2. The arbitrators shall take down the depositions of witnesses
in writing, and after making their award shall forthwith deliver
or transmit by registered letter, at the request of either party in
writing, the depositions, together with the exhibits referred to
Transmission therein, and all papers connected with the reference, except the
award (to the clerk of a superior court in the province in which
the lands are situated, to be filed with the records of the said
court). (2)
R. S.O.,ch. 170, sec. 20 (10)5(13). (i) "may," (2) substitute "to the
Clerk of Records and Writs of the Chancery Division of the High Court, with
appropriate stamps, to be filed by the clerk with the records of the Court."
R. S. Q., Art. 5164 (21). Same as Dominion, 1st part only, excepting
(i) a may in their discretion."
Evidence to
be taken down
in writing.
of record.
DOMINION AND PROVINCIAL RAILWAY ACTS. Ixxi
N. B., 1891, ch. 18, sec. 20 (10), (13).— (i) " may," (2) "Clerk of the
County Court for the County in which the lands lie, with the usual fees, to
be filed with the records of the Court."
R. S. N. S., ch. 53, sec. 9 (19). Same as Quebec, excepting (i) " may."
156. (A majority of the arbitrators, at the first meeting after Time within
their appointment, or the sole arbitrator, shall) (i) fix a day on
or before which the award shall be made ; and if the same is not
made on or before such day or some other day to wjiich the
time for making it has been prolonged, either by the consent of
the parties or by (resolution of the arbitrators) (2) then the sum
offered by the company, as aforesaid, shall be the compensation
to be paid by the company.
R. S. O.,ch. 170, sec. 20 (14). — (i) Substitute L" The Judge by whom a
third arbitrator or sole arbitrator is appointed shall, at the same time," (2)
"the order of the Judge (as it may be for reasonable cause shewn, on the
application of such sole arbitrator, or of one of the arbitrators, after one clear
day's notice to the others)."
R. S. Q., Art. 5164 (22). Same as Dominion.
N.B., 1891, ch. 18, sec. 20 (14). Same as Ontario.
R. S. N. S , ch. 53, sec. 9 (20). Same as Dominion.
157. If the (sole) (i) arbitrator (a) appointed by the judge, vacancy in
or any (arbitrator) {&) appointed by the (two arbitrators) (2) the office of
dies before the award has1 been made, or is disqualified, or how fine(j.
refuses or fails to act within a reasonable time, then, in the case
of the sole arbitrator, (c) the judge, upon the application of
either party, (<T) and upon being satisfied by affidavit or other-
wise of such death, disqualification, refusal or failure, may ap-
point another arbitrator in the place of such (sole) (3) arbitrator;
and (in the case of any arbitrator appointed by [one of] (e) the
parties), (4) the company and party respectively may each
appoint an arbitrator in the place of (its or) (5) his arbitrator so
deceased or not acting (and in the case of the third arbitrator
appointed by the two arbitrators, the provisions of section one
hundred and fifty-one shall apply), (6) but no recommencement NO re-com-
or repetition of the previous proceedings shall be required in mencement of
proceedings .
any case.
R. S.O., ch. 170, sec. 20(15). — (i) Omitted, (2) "parties," (3) omitted,
(4) omitted, (5) omitted, (6) omitted.
R. S. Q., Art. 5164 (23). Same as Dominion, excepting (a) "or the third
arbitrator," (i>) "arbitrators," (2) " parties, or the third arbitrator appointed
by the two arbitrators," (c) " or in the case of the third arbitrator appointed
by the judge," (rf) "previous notice of at least two clear days having been given
to the other party," (3) omitted, (?) omitted, (6) substitute " and if the com-
Ixxii
THE RAILWAY LAW OF CANADA.
Company
costs.
New notice
may be given.
Valuator or
disqualified
unless person-
y' "
pany or the party refuse or neglect to appoint such arbitrator, on application
by the company or the party , as the case may be, previous notice of at least two
clear days having been given to the other party, the judge being satisfied by
affidavit or otherwise of such death, disqualification, refusal or failure, or of
the neglect to replace such arbitrator, so deceased or not acting, shall appoint
another arbitrator in his place, and in the case of a third arbitrator appointed
by the two arbitrators, the provisions of the seventeenth paragraph of this
article shall apply."
N. B., 1891, ch. 18, sec. 20 (15). Same as Ontario.
R. S. N. S.,ch. 53, sec. 9(21). Same as Dominion, excepting (i) "the
official arbitrator." (2) " Commissioner of Public Works, or any arbitrator
appointed by the parties, or the third arbitrator appointed by the two arbitra-
tors." (d) " And in the case of the official arbitrator, the Commissioner of
Public Works, upon a like application, the judge or commissioner being
satisfied", etc. (e) omitted. (5) omitted. (6) " the provisions of the sixteenth
sub-section shall apply."
158. In any case where the notice given improperly describes
1^16 ^anc* or material intended to be taken, or if the company
decides not to take the land or material mentioned in the notice,
it may abandon the notice and all proceedings thereunder, but
shall be liable to the person notified for all damages or costs in-
curred by him in consequence of such notice and abandonment
— such costs to be taxed in the same manner as costs after an
award ; and the company may give to the same or any other
person notice for other land or material or for land or material
otherwise described, notwithstanding the abandonment of the
former notice.
R. S. O., ch. 170, sec. 20 (16). Any notice for lands as aforesaid may be
desisted from, and new notice given with regard to the same or other lands to
the same or any other party ; but in such case the liability to the party first
notified for all damages and costs by him incurred in consequence of such
notice and desistment shall subsist (provided, however, that the right of de-
sisting be not exercised more than once), (i)
R. S. Q., Art. 5164 (24). Same as Ontario, excepting (i) omitted.
N. B., 1891, ch. 18, sec. 20 (16).
R. S. N. S., ch. 53, sec. 9 (22). Same as Ontario.
159. The (i) person offered or appointed as valuator, or as
(s°le) (2) arbitrator, shall not be disqualified because he is pro-
fessionally employed by either party, or has previously expressed
an opinion as to the amount of compensation, or because he is
related or of kin to any (shareholder) (3) of the company, if he
is not himself personally interested in the amount of the com-
pensation ; and no cause of disqualification shall be urged
against any arbitrator appointed by the judge after his appoint-
ment, bjt the objection shall be made bafore the appointment,
DOMINION AND PROVINCIAL RAILWAY ACTS. Ixxiii
and its validity or invalidity shall be summarily determined by
the judge.
R. S. O., ch. 170, sec. 20 (17).— (l) "surveyor or other," (2) omitted, (3)
" member."
R. S. Q., Art. 5164 (25). Same as Ontario, excepting (2) " sole."
N. B., 1891, ch. 18, sec. 20 (17). Same as Quebec.
R. S. N. S., ch. 53, sec. 9 (23). Same as Ontario, excepting (2) retained.
16O. No cause of disqualification shall be urged against any When dis-
arbitrator appointed by the company or by the opposite party ^^ ™iu
after the appointment of a third arbitrator; and the validity or urged,
invalidity of any cause of disqualification urged against any such
arbitrator, before the appointment of a third arbitrator, shall be
summarily determined by the judge, on the application of either
party, after (two) (i) clear days' notice to the other, and if the
cause is determined to be valid, the appointment shall be null and
void, and the party offering the person so adjudged to be dis-
qualified shall be held not to have appointed an arbitrator.
R. S. O., ch. 170, sec. 20 (18).— (i) "one."
R. S. Q , Art. 5164, sec. 26. Same as Dominion.
N. B. , 1891, ch. 18, sec. 20 (18).— (i) " ten."
R. S. N. S., ch. 53, sec. 9 (24). Same as Dominion.
161- No award (i) shall be invalidated by reason of any Award not
want of form or other technical objection, if the requirements of avoided. for
, .„ , want of form,
this Act have been substantially complied with, and if the award
states clearly the sum awarded, and the lands or other property,
right or thing for which such sum is to be compensation ; and
the person to whom the sum is to be paid need not be named in
the award.
R. S.O.,ch. 170, sec. 20 (19). — (i) " made as aforesaid."
R.S.Q., Art. 5164(27).
N. B., l8yl, ch. 18, sec. 20 (19). — (i) "made as aforesaid."
R. S. N. S., ch. 53, sec. 9 (25).
2. (Whenever the award exceeds four hundred dollars) (i) Appeal to a
any party to the arbitration may, within one month after receiv- suPe"or
- ' * court,
ing a written notice from any one of the arbitrators (or the sole
arbitrator, as the case may be) (2) of the making of the award,
appeal therefrom upon any question of law or fact to a (Superior
Court of the Province in which such lands are situate) ; (3) and
upon the hearing of the appeal the court shall, if the same is a
question of fact, decide the same upon the evidence (taken be-
fore the arbitrators), (4) as in a case of original jurisdiction.
Ixxiv
THE RAILWAY LAW OP CANADA.
Practice and
proceedings
in such case.
Other reme-
dies not
affected.
Upon pay-
ment or ten-
der of sum
awarded pos-
session may
be taken.
Warrant of
possession.
R. S. O., ch. 170, sec. 20 (20). — (l) Omitted, (2) omitted, (3) " Judge of
the High Court," (4) omitted.
N. B., 1891, ch. 18, sec. 20 (20).— (I) Omitted, (2) omitted, (3) "Judge
of the Supreme Court," (4) same as Dominion.
3. Upon such appeal the practice and proceedings shall be as
nearly as may be the same as upon an appeal from the decision
of (an inferior court to the said court) (i) subject to any general
rules or orders from time to time made by the judges of the said
(superior court in respect to such appeals, which orders may,
amongst other things, provide that any such appeal may be
heard and determined by a single juige). (2)
R. S. O., ch. r7o, sec. 20 (21). — (I) "The judge of the County Court
under The County Courts Act." (2) "High Court, in the same manner as
they are authorized to make other General Rules and Orders respecting prac-
tice and procedure, altering and regulating such practice and proceedings."
N. B., 1891, ch. iS, sec. 20 (21). " Upon such an appeal the practice and
proceedings shall be, as nearly as may be, the same as upon an appeal from
the decision of a Supreme Court judge."
4. The right of appeal hereby given shall not affect the exist-
ing law or practice (in any Province) (i) as to setting aside
awards.
R. S. O., ch. 170, sec. 20 (22). — (i) Omitted.
N. B., 1891, ch. 18, sec. 20 (22). Same as Ontario.
3. Upon payment or legal tender of the compensation or
annual rent, so awarded or agreed upon, (a) to the person en-
titled to receive the same, or upon the (payment into court) of the
amount of such compensation, in the manner (hereinafter men-
tioned; (b} the award or agreement shall vest in the company the
power forthwith to take possession of the lands, or to exercise
the right, or to do the thing for which such compensation or an-
nual rent has been awarded or agreed upon ; and if any resist-
ance or forcible opposition is made by any person to its so doing,
the judge may, on proof to his satisfaction of sucli award or
agreement, issue his warrant to the (sheriff of the district or
county, or to a bailiff), (c) as he deems most suitable, to put down
such resistance or opposition, and to put the company in posses-
sion ; and the sheriff or bailiff shall take with him sufficient assis-
tance for such purpose, and shall put down such resistance or
opposition, and put the company in possession.
R. S. O., ch. 170, sec. 20(23).— (i) "deposit."
R. S. Q., Art. 5164 (28).
DOMINION AND PROVINCIAL RAILWAY ACTS. Ixxv
R. S. M., ch. 130, sec. 24. — (a) " as provided by the Manitoba Expropria-
tion Act." (i) "deposit in Her Majesty's Court of Queen's Bench for Mani-
toba." (b} " mentioned in the Manitoba Expropriation Act." (c) " Sheriff
of the judicial district or to the bailiff of the County Court of the Judicial
Division in either of which the lands are situated."
N. B., 1891, ch. 18, sec. 20 (23). Same as Ontario, omitting "or to a
bailiff as he deems most suitable."
R. S. N. S., ch. 53, sec. 9 (26). Same as Dominion, excepting "con-
stable" for ".bailiff."
163. Such warrant may also be granted by the judge, with- Warrant of
out such award or agreement, on affidavit to his satisfaction that j^award
the immediate possession of the lands, or of the power to do the
thing mentioned in the notice, is necessary to carry on some
part of the railway with which the company is ready forthwith to
proceed.
R. S. O., ch. 170, sec. 20 (24).
R. S. Q., Art. 5164(29).
R. S. M., ch. 130, sec. 25.
N. B., 1891, ch. 18, sec. 20 (24).
R. S. N. S., ch. 53, sec. 9 (27.)
164:. The judge shall not grant any warrant under the next On what con
preceding section unless ten days' previous notice of the time ^^ons suc^
'..•., . warrant may
and place when and where the application for such warrants is be granted.
to be made has been served upon the owner of the land or the
person empowered to convey the land, or interested in the land
sought to be taken, or which may suffer damage from the taking
of materials sought to be taken, or the exercise of the powers
sought to be exercised, or the doing of the tiling sought to be
done, by the company ; and unless the company gives security Security to be
to his satisfaction, by deposit in a chartered bank, designated by Siven-
him, to the credit of the company and such person or party
jointly, of a sum larger than his estimate of the probable com-
pensation, and not less than (fifty per cent, above) (i) the amount
mentioned in the notice served under (section one hundred and
forty-six). (2)
R. S. O., ch. 170, sec. 20 (24). And upon the Company giving security
to his satisfaction, and in a sum whicli shall not be less than double the
amount mentioned in the notice, to pay or deposit the compensation to be
awarded within one month after the making of the award, with interest from
the time at which possession is given, and with such costs as may be lawfully
payable by the Company, (a)
R. S. M., ch. 130, sec. 25. Same as Ontario.
R. S. Q., Art. 5164(29). Same as Dominion, excepting (i) "double." (2)
"paragraph 13 of this Article/'
Ixxvi THB RAILWAY LAW OF CANADA.
N. B., 1891, ch. 18, sec. 20 (24). Same as Ontario, excepting (a) addi-
tional, '^but in grantingsuch warrant, the judge shall impose such other terms
for the purpose of expediting the fixing of compensation as he shall think
just."
R. S. N. S., ch. 53, sec. 9 (27). (b) — Same as Dominion, excepting (i)
" double" (2) " sub-section or of this section."
c*sts- 165. The costs of any such application to, and of any such
hearing before the judge, shall be borne by the company, unless
the compensation awarded is not more than the company had
offeied to pay (i) and no part of such deposit or of any interest
thereon shall be repaid, or paid to such company, or paid to such
owner or Partv> without an order from the judge, which he may
•nly. make in accordance with the terms of the award. (2)
R. S. Q., Art. 5164 (29). — (i) insert : "The petition, writ of possession,
certificate of deposit above mentioned, and all other documents connected
with such incidental proceedings, shall remain of record in the archives of the
Superior Court of the distiict in which such proceedings were held, and a
special register of such proceedings shall be kept by the prothonotary." (2)
additional, '•' Provided always that, when such owner or person is absent from
the district, without having a known agent upon whom such service can be
made, or when such owner is unknown, application for a warrant may be
made, at any time after the expiration of the month's notice mentioned in
paragraph fourteen of this article, without any other or further notice."
" Every proprietor who shall not be paid in full, in capital, interest and
cost, the amount to him awarded by the arbitrators, within two months after
such award, may then exercise his recourse against the company to recover
the property in and possession of the land, by ordinary civil action, in which
he may demand the damages to which he may be entitled."
R, S. N. S., ch. 53, sec. 9 (27). (3) — Same as Dominion.
Compensation 166, The compensation for any lands which may be taken
to stand in the
place of the without the consent of the proprietor shall stand in the stead of
land. such lands ; and any claim to or incumbi'ance upon the said
lands, or any portion thereof, shall, as against the company, be
converted into a claim to the compensation or to a like propor-
tion thereof; and the company shall be responsible accordingly,
whenever it has paid such compensation, or any part thereof, to
a person not entitled to receive the same, saving always its re-
course against such person.
R. S. O., ch. 170, sec. 20 (25).
R. S. Q., Art. 5164(30).
N. B., 1891, ch. 18, sec. 20 (25).
R. S. N. S., ch. 53, sec. 9 (28).
Payment of 167. If the company has reason to fear any claims orincum-
into court ir" Frances, or if any person to whom the compensation or annual
certain cases, rent, or any part thereof is payable, refuses to execute the proper
DOMINION AND PROVINCIAL RAILWAY ACTS. Ixxvii
conveyance and guarantee, or if the person entitled to claim the
same cannot be found, or is unknown to the company, or if, for
any other reason, the company deems it advisable, the company
may (if the lands are situated elsewhere than in the Province of
Quebec) (i) pay such compensation into the office of the (clerk
or prothonotary of the court), (2) with the interest thereon for
six months, and may deliver to such (clerk or prothonotary) (3)
an authentic copy of the conveyance, or of the award or agree-
ment, if there is no conveyance ; and such award or agreement
shall thereafter be deemed to be the title of the company to the
land therein mentioned.
R. S. O., ch. 170, sec. 20 (26). — (i) omitted. (2) " Accountant of the
Supreme Court of Judicature.1' (3) "accountant."
R. S. Q., Art. "5164 (31) — (i) omitted. (2) " Prothonotary of the Super-
ior Court for the district in which the lands are situated." (3) "prothono
tary/'
N. B., 1891, ch. 18, sec. 20 (26). — (i) omitted. (2) " Clerk of the Pleas.
(3) "Clerk of the Pleas."
R. S. N. S., ch. 53., sec. 9 (29). Same as Quebec, excepting " Supreme
Court " for " Superior Court."
168. A notice in such form, and for such time as the (r) Notice to be
court appoints, shall be inserted in a newspaper if there is any, Published-
published in the county in which the lands are situated (or if
there is no newspaper published in the county, then in the offi-
cial Gazette of the Province, if any, and also in a newspaper
published in the nearest county thereto in which a newspaper is
published), (2) which shall state that the title of the company —
that is, the conveyance, agreement or award — is under this Act,
and shall call upon all persons entitled to the lands, or to any
part thereof, or representing or being the husbands of any per-
sons so entitled, to file their claims to the compensation, or any Claims to be
part thereof: and all such claims shall be received and adiudi-adJudicated
upon,
cated upon by the court, and the said proceedings shall forever
bar all claims to the lands or any part thereof, including dower,
(a) as well as all mortgages or incumbrances upon the same ; and Distribution
the court shall make such order for the distribution, payment or °.f compensa-
investment of the compensation, and for the securing of the
rights of all persons interested, as to right and justice (3) and to
law appertains. (£)
R. S. O., ch. 170, sec. 20 (27).— (i) "High." (2) "and in the City of
Toronto.'"' (3) ''and the pro\isions of this Act and the special Act."
Ixxviii THE RAILWAY LAW OF CANADA.
R. S. Q., Art. 5 164 (31) ( ',2). "and proceedings shall be taken to obtain the
confirmation of the company's title, except that, in addition to the usual con-
tents of the notice, the prothonotary shall state that the company's title (that
is to say, the conveyance or the award) is under this section," and shall call
upon, etc., etc. Remainder same as Dominion Act, excepting (a) " not yet
open," (/>) " and the provisions of this section and of the charter and of the
law require."
N. B., 1891, ch. 18, sec. 20 (27). (r) " Supreme." (2) omit, "if any,
and also in a newspaper published in the nearest county thereto in which a
newspaper is published." Rest same as Ontario.
R. S- N. S., ch. 53, sec. 9 (30), as amended by 55 Vic., ch. 35. Same as
Dominion, excepting (2) "and at the seat of Government of the Province."
(3) Same as Ontario.
Costs. 169. The costs of the proceedings, in whole or in part (in-
cluding the proper allowance to witnesses) (i) shall be paid by
Interest. the company, or by any other person, as the court orders ; and
if (such order of distribution) (2) is obtained in less than six
months from the payment of the compensation (into court) (3)
the court shall direct a proportionate part of the interest to be
returned to the company, and if, from any error, fault or neglect
of the company, it is not obtained until after the six months have
expired, the court shall order the company to pay to the (proper
claimants) (4) the interest for such further period as is right.
R. S. O., ch. 170, sec. 20 (28) (29). — (i) omitted.
R. S. Q., Art. 5164 (33). — (i) Omitted. (2) "judgment of confirmation."
(3) "to the prothonotary." (4) "prothonotary."
N. B., 1891, ch. 18, sec. 20 (28) (29), Same as Ontario.
R. S. N. S., ch. 53, sec. 9 (31) (32). Same as Dominion, excepting (i)
omitted.
Proceedings 17O. If the lands so taken are situated in the Province of
in a like case Quebec, and if the company has reason to fear any claim, mort-
vince of Que- §age> hypotheque or incumbrance, or if any person to whom the
bee. compensation or annual rent, or any part thereof, is payable,
refuses to execute the proper conveyance and guarantee, or if the
person entitled to claim the compensation or rent cannot be
found, or is unknown to the company, or if, for any other reason,
the company deems it advisable, the company may pay such
compensation into the hands of the prothonotary of the Superior
Court for the district in which the lands are situate, with the
interest thereon for six months, and may deliver to the said pro-
thonotary an authentic copy of the conveyance, or of the award
if there is no conveyance ; and such award shall thereafter be
Confirmation deemed to be the title of the company to the lands therein men-
of title.
DOMINION AND PROVINCIAL RAILWAY ACTS. Ixxix
tioned, and proceedings shall thereupon be had for the confirm-
ation of the title of the company, in like manner as in other
cases of confirmation of title, — except that, in addition to the Special notice
, . in such case,
usual contents of the notice, the prothonotary shall state that the
title of the company (that is, the conveyance or award) is under
this Act, and shall call upon all persons entitled to the lands, or
any part thereof, or representing or being the husband of any
person so entitled, to file their claims to the compensation, or
any part thereof; and all such claims shall be received and adju-
dicated upon by the court.
171. Such judgment of confirmation shall forever bar all Effect of con-
claims to the land, or any part thereof, including dower not yet
open, as well as any mortgage, hypotheque or incumbrance upon
the same ; and the court shall make such order for the distribu- Distribution
tion, payment or investment of the compensation, and for the °io^omper
security of the rights of all persons interested, as to right and
justice and to law appertains.
172. The costs of the proceedings, in whole or in part, shall Costs,
be paid by the company, or by any other person, as the court
orders, and if judgment of confirmation is obtained in less than
six months from the payment of the compensation io the pro- Interest,
thonotary, the court shall direct a proportionate part of the in-
terest to be returned to the company ; and if, from any error,
fault, or neglect of the company, it is not obtained until after the
six months have expired, the court shall order the company to
pay the prothonotary the interest for such further period as is
right.
RAILWAY CROSSINGS AND JUNCTIONS.
1715. (As amended by 56 Vic., ch. 27, sec. i.) The railway Crossing sub-
of any company shall not be crossed, intersected, joined or united J60,1 *? aPPr°-
• , ., , 11 , valofRailway
by or with any other railway, nor shall any railway be inter- Committee.
sected or crossed by any street railway, electric railway or tram-
way, whether constructed under Dominion or provincial or
municipal authority or otherwise, unless the place and mode of
the proposed crossing, intersection, or junction or union are
first approved by the Railway Committee, on application there-
for,— of which application ten clear days' notice in writing shall Notice.
Ixxx
THE RAILWAY LAW OF CANADA.
Crossings
street rail-
ways, etc.
be given by the party or company desiring the approval, such
notice to be sent by mail addressed to the president, general
manager, managing director, secretary, or superintendent of the
company whose railway is to be so crossed, intersected, joined
or united : and in the case of crossing by street railways, electric
by railways or tramways respectively, the Railway Committee shall
have the same powers in all respects as to the protection of such
crossing and otherwise as are given the Railway Committee by
this Act in regard to one railway crossing another.
R. S. O., ch. 170, sec. 9 (16). The Company shall not avail itself of any of
the powers contained in the last sub- section (uniting with and crossing other
railways) without application to the (Commissioner of Public Works) (i) of
which application notice in writing shall be given to any other railway affected,
by sending the same by mail, or otherwise, to the address of the president,
superintendent, managing director, or secretary of any such company, for
approval of the mode of crossing, union, or intersection proposed ; and when
sdch approval has been obtained, it shall be lawful for either railway, in case
of disngi cement as to the amount to be paid for compensation, to proceed for
such compensation as provided in the (last sub-section). (2)
R. S. Q., Art. 5132 (15). Same as Ontario, excepting (i) "Railway Com-
mittee constituted under Art. 5182 for approval of the mode of junction,
crossing, or intersection proposed." (2) "preceding paragraph 14 ;>
R. S. M., ch. 130, sec. 26. " No railway company, whether incorporated
by the Parliament of Canada or otherwise, shall cross, intersect, join or unite
its railway with any railway subject to the legislative authority of the Legis-
lature of Manitoba, without first obtaining the approval of the Railway Com-
mittee of the Executive Council of the Province of Manitoba, as to the place
and mode of crossing, intersection, junction or union proposed. Ten days'
notice in writing of the application to such committee shall be given by the
company to any such company affected, by sending the same by mail or
otherwise to the address of the president, superintendent, general manager,
managing director, or secietary of such company/'
N. B., 1891, ch. 18, sec. 9 (16). Same as Ontario, adding the word
"chief" before " commissioner of public works.'-'
R. S. N. S , ch. 53, sec. 7 (15). Same as Ontario, excepting (i) "Gov-
ernor in Council for the approval of the mode of crossing, union or inter-
section proposed."
Railway
Committee
may make
regulations.
Necessary ap-
paratus may
be ordered to
be adopted.
174. The Railway Committee may make such orders and
give such directions respecting the proposed crossing, intersec-
tion, junction or union, and the works to be executed and the
measures to be taken by the respective companies, as to it
appear necessary or expedient to secure the public safety.
R. S. M., ch. 130, sec. 27.
175. The Railway Committee may, on the application of any
company (i) whose railway, at rail level, crosses or is crossed
by the railway of any other company, direct such companies to
DOMINION AND PROVINCIAL RAILWAY ACTS. Ixxxi
adopt and put in use at such crossing, within a reasonable time,
to be fixed by such committee, such an interlocking switch and
signal system or device, as, in the opinion of such committee,,
renders it safe to permit engines and trains to pass over such
crossing without being brought to a stop.
R. S. M., ch. 130, sec. 28. (i) " subject to the legislative authority of
the Legislature of Manitoba."
176. The companies may agree with each other as to the Proportion of
compensation to be paid by one to the other in respect of any pald^y Sea°h 6
crossing, intersection, junction or union, or the proportion to be company,
borne by each of the costs of executing any work or taking any
measure, or the carrying out of any order of the Railway Com-
mittee j but if they fail so to agree, the amount of such compen-
sation, or the proportion of such costs so to be borne by each
shall be determined by the Railway Committee.
R. S. O., ch. 170, sec. 9 (15). " and the owners of both railways may
unite in forming such intersection and giant the facilities therefor ; and in case
of disagreement upon the amount of compensation to be made therefor, or
upon the point or manner of such crossing and connection, the same shall be
determined by arbitrators to be appointed by a judge of the (High
Court.") («)
R. S. Q., Art. 5132 (14). Same as Ontario, excepting (a) " Superior
Court."
R. S. M., ch. 130, sec. 29. Same as Dominion.
N. B., 1891, ch. 1 8, sec. 9 (15). Same as Ontario, excepting (a) " Su-
preme Court."
R. S. N. S., ch. 53, sec. 7 (14). Same as New Brunswick.
177. Every railway company, incorporated by any Act of Intersection
the Legislature of any Province which crosses, intersects, joins ofjailways.
. . . ., • . ' . under provin-
or unites with any railway within the legislative authority of cial charters.
the Parliament of Canada, or which is crossed, or intersected by,
or joined or united with, any such railway, shall, in respect of
such crossing, intersection, junction and union, and all matters
preliminary or incident thereto, be deemed to be, and be, with-
in the legislative authority of the Parliament of Canada, and
subject in respect thereof to the provisions of this Act.
R. S. O. ch. 170, sec. 9 (7). The provisions of the last preceding sub-
section, and the provisions for the ascertainment of compensation contained
in sub-section 15 of this section, shall not extend or apply to any railway
incorporated under any Act of the Legislature (of Ontario) (i) in any casein
which it is proposed that such railway shall cross, intersect, join or unite
with, or be crossed, intersected, joined or united with a railway under the
legislative control of Canada.
N. B., 1891, ch. 18, sec. 9 (17). Same as Ontario, omitting (i).
F
Ixxxii
THE RAILWAY LAW OF CANADA.
Navigation
not to be im-
peded.
Bridges over
navigable
rivers, etc.
Bridges to be
floored.
Plans of
bridges, etc.,
to be ap-
proved.
NAVIGABLE WATERS.
178. No company shall cause any obstruction in or impede
the free navigation of any river, stream or canal, to or across or
along which its railway is carried.
R. S. O., ch. 170, sec. 9 (5), (91).
R.S. Q., Art. 5144.
R. S. M., ch. 130, sec. 12 (t>).
N. B., 1891, ch. 18, sec. 9 (5), (71).
R. S. N. S., ch. 53, sec. 64.
179. Whenever the railway is carried across any navigable
river or canal, the company shall leave openings between the
abutments or piers of its bridge or viaduct over the same, and
shall make such bridge or viaduct of such clear height
above the surface of the water, or shall construct such draw-
bridge or swing-bridge over the channel of the river, or over the
whole width of the canal, and shall be subject to such regula-
tions as to the opening of such swing-bridge or draw-bridge as
the (i) Governor in Council, from time to time, directs or
makes.
R. S. O., ch. 170, sec. 92. — (i) " Lieutenant."
R. S. Q., Art. 5145. Same as Ontario.
N. B., 1891, ch. 18, sec. 72. Same as Ontario.
R. S. N. S.j ch. 53, sec. 65. Same as Dominion.
180. No company shall run its trains over any canal, or over
the navigable channel of any river, without having first laid such
proper flooring under and on both sides of its railway track
over such canal or channel, as is deemed by the Minister suffi-
cient to prevent anything falling from the railway into such
canal or river, or upon the boats or vessels, or craft, or persons
who navigate such canal or river.
181. No company shall construct any wharf, bridge, pier or
other work upon or over any navigable river, lake or canal, or
upon the beach or bed or lands covered with the waters thereof,
until it has first submitted the plan and proposed site of such
work to the (Railway Committee), (i) and the same has been
approved ; and no deviation from such approved site or plan
shall be made without (the consent of the committee). (2)
R. S. O., ch. 170, sec. 93. — (i) " Lieutenant-Governor in Council." (2)
" his consent."
R. S. Q., Art. 5146. Same as Dominion.
DOMINION AND PROVINCIAL RAILWAY ACTS. Ixxxiii
N. B., 1891, ch. 18, sec. 73. Same as Ontario.
R. S. N. S., ch. 53, sec. 66. Same as Dominion, excepting (i) (2)
" Governor in Council."
182, The Governor in Council may, upon the report of the Substitution
(Railway Committee) (2) authorize or require any company to Bridge for™1
construct fixed and permanent bridges (or swing, draw or mova- another.
ble bridges) (a) or to substitute any of such bridges for (existing
bridges) (3) on the line of its railway, within such time as the (4)
Governor in Council directs ; and for every day after the period Penalty for
so fixed during which the company fails to comply with the anceC°mP *~
directions of the Governor in Council, it shall forfeit and pay to
Her Majesty the sum of two hundred dollars ; and no company No swing
shall substitute any swing, draw or movable bridge for any fixed trf-f ! l? ^
or permanent bridge already built and constructed without the without per-
previous consent of the (Railway Committee). (5) mission.
R. S. O., ch. 170, sec. 65. — (2) " Commissioner of Public Works." (3)
" swing, draw or moveable bridges." (4) " Lieutenant." (5) " Lieutenant
Governor in Council." («) omitted.
R. S. Q., Art. 5194. (3) " swing, draw or moveable bridges." (rt) omitted.
N. B.,i89i,ch. 18, sec. 52. — (2) " Chief Commissioner of Public Works."
(a) omitted. (3) " swing, draw or moveable bridges." (5) "Lieutenant
Governor in Council."
HIGHWAY CROSSINGS.
183. The railway shall not be carried along an existing high- Railway not
way, but shall merely cross the same in the line of the railway, un- to be carried
less leave therefor has been obtained from the (Railway Com- way ^vitho\it
mittee), (i) and no obstruction of such highway with the works permission of
shall be made without turning the highway so as to leave an open 1^°]^ au
and good passage for carriages, and, on completion of the works,
replacing the highway; and every company which violates the pro- Penalty for
visions of this section shall incur a penalty of not less than forty contravention.
dollars for each such violation ; but, in either case, the rail itself.
if it docs not, when the works are completed, rise above or sink
below the surface of the road more than one inch, shall not be
deemed an obstruction.
R. S. O., ch. 170, sec. 29 (i). — (I) "proper municipal authority."
R. S. Q., Art. 5170 (i). — (i) "proper municipal or local authority."
R. S. M., ch. 130, sec. 31 (a). Same as Ontario.
N. B., 1891, ch. 18, sec. 21 (i). Same as Ontario.
R. S. N. S., ch. 53, sec. 15 (i). Same as Quebec.
Ixxxiv THE RAILWAY LAW OF CANADA.
Variation 184:. Whenever any railway crosses any highway, without
being carried over it by a bridge, or under it by a tunnel or
on t
bridge, whether the level of the highway remains undisturbed or
is raised or lowered to conform to the grade of the railway, the
top of the rails shall not, when the crossing is completed, rise
above or sink below the level of the highway more than one inch.
R. S. O., ch. 170, sec. 29 (2). " No part of the railway which crosses a
highway, without being carried over by a bridge or under by a tunnel, shall
rise above or sink below the level of the highway more than one inch, and
the railway may be carried across or above a highway within the limits afore-
said."
R. S. Q., Art. 5170 (2). As amended by 52 Vic. (Que.) ch. 44. Same
as Dominion.
R. S. M., ch. 130, sec. 31 (6). Same as Ontario.
N. B., 1891, ch. i8,sec. 21 (2). Same as Ontario.
R. S. N. S., ch. 53, sec. 15 (2).
Dimensions of 185. The span of the arch of every bridge erected for carry-
hteh^vayTTnd 'll}& tne ra^way over or across any highway shall, at all times, be
inclination, and be continued of the open and clear breadth and space, under
such arch, of not less than twenty feet, and of a height, from the
. . surface of such highway to the centre of such arch, of not less
than twelve feet; and the descent of the highway passing under
any such bridge shall not exceed one foot in twenty feet.
R. S. M., ch. 130, sec. 31 (c).
R. S. Q., Art. 5170 (3).
R. S. O., ch. 170, sec. 29 (5). " Overhead bridges, and other erections or
structures over a railway, shall be constructed and maintained in conformity
with sections 4 and 5 of The Rail-way Accidents Act."
R. S. N. S., ch. 53, sec. 15 (3). Same as Dominion.
Inclination of 186- The inclination of the ascent or descent, as the case
highway at mav ^ of anv approach by which any roadway is carried over
crossings. . • . ,
or under any railway or across it at rail level shall not be greater
than one foot of rise or fall (or every twenty feet of the horizontal
length of such approach, unless the Railway Committee'directs
otherwise ; and a good and sufficient fence shall be made on each
Fences. side of such approach, and of the bridge or passage connected
with it, — which fence shall be at least four feet in height from the
Cost thereof surface of the approach, bridge or passage; and, in respect to
cases railways which, on the nineteenth day of April, one thousand
eight hundred and eighty-four, were under construction or already
constructed, the Railway Committee shall determine the propor-
tion in which the cost of providing such fencing for such ap-
DOMINION AND PROVINCIAL RAILWAY ACTS. Ixxxv
proach shall be borne by the company or municipality or person
interested.
R. S. O., ch. 170, sec. 29 (3). "The ascent of all bridges erected to carry
a highway over a railway shall not be more than one foot in twenty feet in-
crease over the natural ascent of the highway, and a good and sufficient fence
shall be made on each side of every bridge, which shall not be less than four
feet above the surface of the bridge."
R. S. Q., Art. 5170 (4) Same as Ontario.
R. S. M., ch. 130, sec. 31 (</). Same as Ontario.
N. B., 1891, ch. 18, sec. 29 (3). Same as Ontario.
R. S. N. S., ch. 53, sec. 15 (4).
187. Whenever any portion of a railway is constructed, or Plan of cross-
authorized or proposed to be constructed upon or along or across mg |
any street or other public highway at rail level or otherwise, the level to be
company, before constructing or using the same, or, in the case submitted.
of railways already constructed, within such time as the Railway
Committee directs, shall submit a plan and profile of such por-
tion of railway for the approval of the Railway Committee ; andp°wers of
the Railway Committee, if it appears to it expedient or neces- committee in
sary for the public safety, may, from time to time, with the such case,
sanction of the Governor in Council, authorize or require the
company to which such railway belongs, within such time as the
said committee directs, to protect such street or highway by a
watchman or by a watchman and gates, or other protection, — or
to carry such street or highway either over or under the said rail-
way by means of a bridge or arch, instead of crossing the same
at rail level, — or to divert such street or highway either tempor-
arily or permanently, — or to execute such other works and take
such other measures as under the circumstances of the case ap-
pear to the Railway Committee best adapted for removing or
diminishing the danger arising from the then1 position of the
railway; and all the provisions of law at any such time ap pi i- AS to land re-
cable to the taking of land by such company, and to its valua-quired-
tion and conveyance to the company, and to the compensation
therefor, shall apply to the case of any land required for the pro-
per carrying out of the requirements of the Railway Committee
under this section.
R. S. O., ch. 170, fee. 66. In any case where a railway (commenced after the
27th May, 1887) (i) is constructed across a (2) road, street, or other public
highway on the level, the (Chief Commissioner of Public Works) (3) if it ap-
pears to him necessary for the public safety, may, with the sanction of the
Lieutenant Governor in Council, authorize and require the Company to whom
Ixxxvi
THE RAILWAY LAW OK CANADA.
the railway belongs, within such time as the (Chief Commissioner) (4) directs,
to carry the road, street or highway by means of a bridge or arch, either over
or under the railway, instead of crossing the same on the level, or to execute
such other work as under the circumstances of the case appear to (him) (5)
the best adapted for removing or diminishing the damage arising from such
level crossing ; and all the provisions of law at such time applicable to the
taking of land by Railway Companies, and its valuation and conveyance to
them, and to the compensation therefor, shall apply to the case of land re-
quired for the construction of any works for effecting the alteration of such
level crossing.
R. S. Q., Ait. 5195. Same as Ontario, excepting (i) omitted, (2) " turn-
pike road," (3) "Railway Committee," (4) " said Committee," (5) "the
said Committee."
N. B., 1891, ch. 18, sec. 53. Same as Ontaiio, excepting (i) omitted.
R. S. N. S., ch. 53, see sec. 75.
188. The Railway Committee may make such orders, and
give such directions respecting such works and the execution
thereof, and the apportionment of the costs thereof and of any
such measures of protection, between the said company and any
person interested therein, as appear to the Railway Committee
just and reasonable.
189. Every company shall incur a penalty of fifty dollars for
each and every day after the expiration of the date fixed by the
Railway Committee for the execution of any such works during
which such works remain uncompleted, and for each and every
day after the date fixed by the Railway Committee for the tak-
ing of any measure for the protection of any such street or high-
way, or for removing or diminishing such danger as aforesaid,
Time may be on whidi the company fails to take such measure : Provided,
however, that the Railway Committee may extend the time for
the completion of the said work upon proper cause shown.
R. S. M., ch. 130, sec. 31 (/). "for every neglect to comply with the
requirements of clause 31, a penalty not exceeding forty dollars shall be
incurred."
Signboards 19O. Signboards at every highway crossed at rail level by
over railway any railway shall be erected and kept up at each crossing, and
shall have the words " railway crossing " painted on each side
of the signboard, in letters at least six inches in length, and in
the Province of Quebec such words shall be painted in both the
English and the French languages ; and every company which
neglects to comply with the requirements of this section shall
incur a penalty not exceeding forty dollars.
Railway
Committee
may make
regulations.
Penalty for
non compli-
ance.
DOMINION AND PROVINCIAL RAILWAY ACTS. Ixxxvii
R. S. O., ch. 170, sec. 29 (4). " Signboards stretching over (i) the highway
crossed at a level by a railway shall be erected and kept up at each cross-
ing, at such height as to leave sixteen feet from the highway to the lower edge
of the signboard, and having the words " Rail-way Crossing" painted on each
side of the signboard, and in letters not less than six inches in length, and for
every neglect to comply with the requirement of this clause, a penalty not
exceeding forty dollars shall be incurred."
R. S. O,., Art. 5170 (6). Same as Ontario, excepting (i) "or projecting
across."
N. B., 1891, ch. 18, sec. 21 (4) . Same as Ontario.
R. S. N. S., ch. 53, sec. 15 (6). Same as Quebec.
FARM CROSSINGS.
191. Every company shall make crossings for persons across Farm cross-
whose lands the railway is carried, convenient and proper for theings'
crossing of the railway by farmers' implements, carts and other
vehicles.
R. S. Q., Art. 5171 (2). " Farm crossings shall be made and maintained
by the company, upon the application of any proprietor of land present or
future, on each such land."
BRIDGES — TUNNELS.
19!£. Every bridge or other erection or structure or tunnel. As to height
over or through or under which any railway passes, and every Bridges e'
tunnel through which any railway passes, shall, at all times, be so
maintained as to admit of an open and clear headway of at least
seven feet between the top of the highest freight cars used on the
railway and the bottom of the lower beams, members or portions
of that part of such bridge, erection, structure or tunnel which is
over the railway ;
2. The company, before using higher freight cars than those No higher cars
which admit of such open and clear headway of at least seven bridge^
feet, shall, after having first obtained the consent of the munici- raised,
pality or of the owner of such bridge or other erection, structure
or tunnel, raise every such bridge or other erection, structure or
tunnel, and the approaches thereto, if necessary, so as to admit
of such open and clear headway of at least seven feet ;
R. S. O., ch. 170, sec. 29 (5). " Overhead bridges, and other erections and
structures over a railway, shall be constructed and maintained in conformity
with sections 4 and 5 of The Railway Accidents Act."
N. B., 1891, ch. 18, sec. 21 (5). Whenever a bridge or any other erection
or structure (or tunnel) (i) shall be constructed (2) over or on a railway, or
whenever it shall become necessary to reconstruct any highway bridge, or
other erection, or structure (or tunnel) (3) already built (and under or through
Ixxxviii
THE RAILWAY LAW OF CANADA.
Bridge, etc.,
to be raised
when re -con-
structed.
And clear
headway
maintained
thereafter.
which it is proposed to construct a railway) (4), or to make large repairs to the
same (such bridges or erections, structures or tunnels, and the approaches
thereto, if necessary) (5) shall be constructed or reconstructed (by and) (6) at
the cost of the Railway Company or (7) other owner of bridge erections, or
structures (or tunnels), (8) as the case may be, and shall be so constructed,
and at all times be maintained at a sufficient height from the surface of the
rails of the railway to admit of an open and clear headway of not less than
seven feet between the top of the highest freight cars then running on the rail-
way and the lowest beams, members or portions of such bridge, or other
erection (or tunnel), (9) and thereafter any Railway Company, before using
higher freight cars than those running on their railways at the time of the
construction or reconstruction of or large repairs to such bridge, or other
erection, or structure (or tunnel) (10) shall, after having first obtained the
consent of the municipality or of the owners of such highway bridge, or other
erection, or structure (or tunnel) raise the said bridge, or other erection, or
structure (or tunnel), (u) and the approaches thereto, if neces-ary, at the
cost and charges of the Railway Company, so as to admit as aforesaid an
open and clear headway of not less than seven feet over the highest freight
car then about to be used on the railway.
R. S. Q., Art. 5170 (5). Same as New Brunswick, excepting (I) omitted,
(2) "for the passage of a highway," (3,8,9, 10, n) omitted, (4) omitted, (5)
" the lower beams or members of the superstructure of any such bridge, or
of any other structure and the approaches thereto," (6) omitted, (7) "or of
the municipality."
R. S. Q., ch. 212, sec. 4. Same as Quebec. (As to reconstruction of
bridges existing on the 4th March, 1881. See 44 .Vic., ch. 22, sec. 4, Ont.)
R.S. N. S., ch. 53, sec. 15 (5) (b).
3. Whenever any bridge, erection, structure or tunnel is con-
structed over or on the line of a railway, or whenever it becomes
necessary to reconstruct any bridge, erection, structure or tun-
nel already built over or on the line of a railway, or to make
large repairs to the same, such bridge, erection, structure or
tunnel, and the approaches thereto, if necessary, shall be con-
structed, reconstructed or repaired at the cost of the company,
or of the municipality or other owner of the bridge, erection,
structure or tunnel, as the case may be, and shall be so con-
structed and at all times maintained as to admit of an open and
clear headway of at least seven feet between the top of the high-
est freight cars then used on the railway and the bottom of the
lower beams, members or portions of that part of such bridge?
erection, structure or tunnel which is over the railway ;
See notes to sec. 192 (l) (2) Dominion Act.
4. Such company shall thereafter, before using higher freight
cars than those used on its railway at the time of the construc-
tion or reconstruction of, or large repairs to, such bridge, erection,
structure or tunnel, after having first obtained the consent of the
DOMINION AND PROVINCIAL RAILWAY ACTS. Ixxxix
municipality, or of the owner of such bridge, erection, structure
or tunnel, raise the said bridge or other erection, structure or
tunnel, and the approaches thereto, if necessary, so as to admit,
as aforesaid, of an open and clear headway of at least seven feet
over the top of the highest freight car then about to be used on
the railway ;
See notes to sec. 192 (r) (2) Dominion Act.
5. The Governor in Council may exempt from the operation Exception.
of this section any bridge, erection, structure or tunnel which is
upon any portion of any line of railway on all the cars of the
trains running, upon which air-brakes are used or otherwise ;
6. Every company shall incurs penalty not' exceeding fifty Penalty for
dollars per day for every day of wilful neglect, omission orance>
refusal to obey the provisions of this section.
193. No company shall run its trains on any bridge unless When only
such bridge is constructed and maintained with safeguard s
approved by the Minister. This section shall not apply to any bridge.
bridge already constructed, until six months after the passing of
this Act.
FENCES AND CATTLE-GUARDS.
194. When a municipal corporation for any township has Fences, cattle
been organized, and the whole or any portion of such township j»u^s'.etc-'
has been surveyed and subdivided into lots for settlement, fences and main-
shall be erected and maintained on each side of the railway tained-
through such township, of the height and strength of an ordinary
division fence, with openings or gates or bars or sliding or hur-
dle gates of sufficient width for the purposes thereof, with proper
fastenings at farm crossings ot the railway, and also cattle-guards
at all highway crossings suitable and sufficient to prevent cattle
and other animals from getting on the railway: Provided always As to N.B.,
that in New Brunswick, Nova Scotia and Prince Edward Island, p^'f
wherever a county municipality has not been subdivided into
local municipalities, each improved or occupied lot of land shall
be protected by fences, gates and cattle-guards, as in this sec-
tion provided ;
2. A hurdle gate has proper fastenings if it is fifteen inches Fastenings at
longer than the opening and is supported at each end by two up- hurdle £ates.
right posts
xc THE RAILWAY LAW OF CANADA.
R. S. O., ch. 170, sec. 30 (i). " Fences shall be erected and maintained
on each side of the laihvay, of the height and strength of an ordinary division
fence, with openings or gates, or bars therein at farm crossings of the road, for
the use of the propiietors of the lands adjoining the railway ; and aho cattle-
guards at all road crossings, suitable and sufficient to prevent cattle and ani-
mals from getting on the railway."
R. S. O., ch. 170, sec. 30 (2). (The said words "openings, gates or
bars " shall be held to mean, and shall in all cases imply, sliding gates, com-
monly called hurdle gates, with proper fastenings), (i) but this shall not be
interpreted to the profit of those proprietors and tenants of lands crossed by
railways who had received compensation from the railway companies, for
having omitted the erection of such gates before the loth June, 18475 nor
shall it in any way affect or apply to any railway constructed or in part con-
structed, on the loth June, 1847 ! but the same shall apply only to railways
constructed or commenced after that day.
R. S. Q., Art. 5171 (i). " Within six months after any lands have been
taken for the use of the railway, the company shall, if thereunto required by
the proprietors of the adjoining larftls, at its own costs and charges, erect and
maintain, on each side of the railway, fences of the height and strength of an
ordinary division fence (with sliding gates, commonly called hurdle-gates),
•with proper fastenings and farm crossings on the road for the use of the pro-
prietors of the lands adjoining the railway ; and also cattle guards at all (2)
road crossings, suitable and sufficient to prevent cattle and other animals from
getting on the railway.
R. S. N. S., ch. 53, sec. 16 (i). Same as Quebec, excepting (i) " Suit-
able gates." (2) "public."
R. S. M.,ch. 130, sec. 32. Same as sec. 30(1). Ontaiio.
R. S. M., ch. 130, sec. 33. Same as sec. 30 (2). Ontario part (i).
N. B., 1891, ch. 18, sec. 22 (i). " Sufficient fences of the lawful height
of four feet six inches shall be erected with gates, as hereinafter mentioned,
by the Company on each side of the railway as their rails are laid in con-
struction, and thereafter such fences shall be maintained by the Company at
their own cost and charges, with gates thereon at farm crossings of the road
for the use of the proprietors of the lands adjoining the railway, and also
cattle yards, at all road crossings, suitable and sufficient to prevent cattle and
animals from getting on the railway."
N. B., 1891, ch. 1 8, sec. 22 (7). "During construction and until per-
manent fences have been erected as required by this section, it shall be the
duty of the Company to replace and put up any line fences dividing adjoin-
ing occupiers which they may have taken down, removed or interfered with
in connection with the work. The fences shall be of such construction as
will keep out swine, sheep and cattle ; and if made of wire, the wires shall
not be more than eight inches apart." Sec. 22 (2). " The expression ' gates '
shall be held to mean and shall in all cases imply swinging gates with
proper fastenings."
Omission or 3- (As amended by 53 Vic., ch. 28, sec. 2.) " If the company
neglect to omits to erect and complete as aforesaid any fence or cattle
make fences, ........ ,11 i
&c guard, or if, after it is completed, the company neglects to main-
tain the same as aforesaid, and if, in consequence of such omis-
sion or neglect, any animal gets upon the railway from an adjoin-
ing place where, under the circumstances, it might properly bef
then the company shall be liable to the owner of every such
DOMINION AND PROVINCIAL RAILWAY ACTS. xci
animal for all damages in respect of it caused by any of the com-
pany's trains or engines ; and no animal allowed by law to run Responsibility
at large shall be held to be improperly on a place adjoining
railway, merely for the reason that the owner or occupant of such
place has not permitted it to be there."
R. S. O., ch. 170, sec. 30 (3). " Until such fences and cattle guards are
duly made, the company shall be liable for all damages which may be done
by their trains or engines to cattle, horses or other animals on the railway."
R. S. Q.,Art. 5171 (3). Same as Ontario.
R. S. M., ch. 130, sec. 34. Same as Ontario.
N. B., 1891, ch. 18, sec. 22 (3). Same as Ontario.
R. S. N. S., ch. 53, sec. 16 (2). Same as Ontario.
195. If the land through or by which the railway passes is Time for con-
occupied at the time of theconstiuotion of the railway opposite j^0^011^.
thereto, the company shall make such fences, gates and cattle - cupied.
guards as they lay their rails.
N. B., 1891, ch. 18, sec. 22 (7). See notes to sec. 194, Dominion Act
(supra}.
196. After such fences (gates) (i) and guards have been when com-
, , , , 11-, i i • • ! pany is ex-
duly made and competed, and while they are duly maintained, empted from
no such liability shall accrue for any such damages, unless (the liability.
same are caused wilfully or negligently by the company or by its
employees). (2)
R. S. O., ch. 170, sec. 30 (4). — (i) omitted, (2) " unless negligently or
wilfully done."
R. S. Q., Art. 5171 (4). Same as Ontario.
R. S. M.,ch. 130, sec. 35. Same as Ontario.
N. B., 1891, ch. 18, sec. 22 (4). Same as Ontario, excepting (i) " gates."
R. S. N. S., ch. 53, sec. 16 (3). Same as Ontario.
197- (As amended by 55-56 Vic., ch. 27, sec. 6.) At every Fencing at
public road crossing at rail level of the railway, the fence oncr
both sides of the crossing and on both sides of the track shall be
turned in to the cattle guards, so as to allow of the safe passage
of trains."
R. S. O., ch. 170, sec. 106. " At every road and farm crossing on the
grade of the railways in this Province, the crossings shal 1 be sufficiently
fenced on both sides of such points, so as to allow the safe passage of
trains." (i)
R. S. Q., Art. 5159. Same as Ontario, excepting (i) additional, " without
danger to animals."
198. The persons for whose use farm crossings are furnished Gates at farm
shall keep the gates at each side of the railway closed when Crossings to
closed.
xcii THE RAILWAY LAW OF CANADA.
not in use ; and no person, any of whose cattle are killed by
any train owing to the non-observance of this section, shall have
any right of action against any 'company in respect to the same
being so killed.
s 199. Every person who wilfully leaves any such gale open
open. without some person being at or near it to prevent animals
from passing through it on to the railway, or vvh > takes down
any part of a railway fence, or turns any horse, cattle or other
animal upon or within the enclosure of such railway, is liable,
on summary conviction, to a penalty of twenty dollars for each
offence, and is also liable to the railway company for any
damage to the property of the company or for which the com-
pany is responsible, by reason of such gate being so left open,
or by reason of such fence being so taken down, or by the turn-
ing upon or within the enclosure of such railway of any horse,
Company not cattle or other animal ; and no person, any of whose cattle are
liable in such ...... . ...
case> killed by any train owing to the non-observance of tins section,
shall have any right of action against any company in respect to
the same being so killed.
INSPECTION OF RAILWAY BEFORE OPENING.
Notice to 2OO. No railway, or portion of any railway, shall be opened
Railway ....
Committee *or the public conveyance of passengers, until one month after
before railway notice in writing of the intention to open the same is given to the
(Minister) (i) by the company to which the railway belongs,
and until ten days after notice in writing is given to the
(Minister) (2) by the company, of the time when the railway or
portion of railway will be, in the opinion of the company,
sufficiently completed for the safe conveyance of passengers, and
ready for inspection.
R. S. O., ch. 170, sec. 52. — (i) " Commissioner of Public Works," (2)
'•' Commissioner."
R. S. Q., Art. 5184.— (I) (2) " A Railway Committee."
N. B., 1891, ch. lii, sec. 39. Same as Ontario, adding "Chief" before
" Commissioner."
R. S. N. S., ch. 53, sec. 34. — (i) " Governor-in-Council. (2) " Cover -
nor-in-Council ."
Penalty for 2O1. If any railway or portion of a railway is opened with-
non-compli- out such notices, the company to which such railway belongs
ance.
DOMINION AND PROVINCIAL RAILWAY ACTS. xciii
shall forfeit to Her Majesty the sum of two hundred dollars for
every day during which the same continues open, until the said
notices have been duly given and have expired.
R. S. O.,ch. 170, sec. 53.
K. S. Q., Art. 5185.
N. B., 1891, ch. 18, sec. 40.
R. S. N. S., ch. 53, sec. 35.
2. The (Minister), (i) upon receiving such notification, Railway to be
shall direct one or more engineers (2) to examine the railway insPected-
proposed to be opened, and all bridges, culverts, tunnels, road
crossings and other works and appliances connected therewith,
and also all engines and other rolling stock intended to be used
thereon ; and if the inspecting engineer reports in writing to the Postponement
(Minister) (3) that, in his opinion, the opening of the same^0^"1"^
would be attended with danger to the public using the same, by favorable.
reason of the incompleteness of the works or permanent way or
of the insufficiency of the establishment for working such rail-
way, together with the ground of such opinion, the (Minister),
(4) with the sanction of the Governor in Council, — and so, from
time to time, as often as such engineer, after further inspection
thereof, reports to the like effect, — may order and direct the
company to which the railway belongs, to postpone such open-
ing for anytime not exceeding one month at any one time, until
it appears to the (Minister) (5) that such opening may take
place without danger to the public.
R. S. O., ch. 170, sec. 51. " The Lieutenant Governor in Council may
appoint and authorize any proper person, or persons, not exceeding three in
number, whose duty it shall be from time to time to inspect all railways
constructed or in couise of construction, and every person so authorized may
at all reasonable times, upon producing his authority, if required, enter upon
and examine the railway and the stations, fences or gates, nad crossings,
cattle guards, works, and buildings, and the engines, cars and carriages
belonging thereto."
R. S. O., ch. 170, sec. 54. " If the railway inspectors, after inspection of a
railway, report in writing to the Commissioner of Public Works that, in their
opinion, the opening or the same would be attended with danger to the public
using the same by reason of the incompleteness of the works or permanent
way, or the insufficiency of the establishment for working the railway, together
with the grounds of such opinion, the Commissioner of Public Works, with
the sanction of the Lieutenant Governor in Council, and so from time to time
as often as the Inspectors, after further inspection thereof, so report, may
order and direct the Company to which the railway belongs to postpone the
opening for a period not exceeding one month at any one time, untiljt appears
to the Chief Commissioner of Public Works that such opening may take
place without danger to the public."
xciv THE RAILWAY LAW OF CANADA.
R. S. Q., "Art. 5186. Samcas Dominion, excepting (I) ' Railway Com-
mittee,' (2) " attached to the Department of Public Works," (3) (4) (5)
" Railway Committee."
N. B., 1891, ch. 18, sees. (38), (41). Same as sees. (51), (54), Ontario,
adding word " Chief" before " Commissioner."
Penalty for 2O3. If any railway or any portion thereof is opened contrary
•opening con- to such order or direction of the (Minister), the company to
' whom the railway belongs shall forfeit to Her Majesty the sum
of two hundred dollars for every day during which the same con-
tinues open contrary to such order or direction.
R. S. O., ch. 170, sec. 55. — (i) " Commissioner."
R. S. Q., Art. 5187.— (I) " Railway Committee."
N. B., 1891, ch. 18, sec. 42. — (i) " Chief Commissioner of Public Works."
K. S. N. S., ch. 53, sec. 37. — (i) "Governor in Council."
Order not 2O4. No such order shall be binding upon the company
b'nding with unless a copy of the report of the (inspecting engineer) (i) on
report'^ which the order is founded is delivered to the company with
such order.
R. S. O., ch. 170, sec. 56. — (i) Inspectors.
R. S. Q., Art. 5188. Same as Dominion.
N. B., 1891, ch. 18, sec. 43. — (i) "inspectors."
R. S. N. S., ch. 53, sec. 38. Same as Dominion.
INSPECTION OF RAILWAY OUT OF REPAIR — REPAIRS.
Proceedings 2O5. Whenever the (Minister) (i) receives information to the
if part of rail- effect that any bridge, culvert, viaduct, tunnel or any other por-
way is out of ..... . . , ..
repair tlon °' anv railway> or any engine, car or carriage used or for
use on any railway, is dangerous to the public using the same,
from want of repair, insufficient or erroneous construction, or
from any other cause, or whenever circumstances arise which, in
his opinion, render it expedient, he may direct one or more en-
gineers to examine and inspect the railway or any portion thereof,
or of the works connected therewith, or the engines and other
rolling stock in use thereon, or any portion thereof, and, upon
the report of the inspecting engineer, may condemn the railway
or any portion thereof, or any of the rolling stock or other ap-
pliances used thereon, and, with the approval of the (2) Governor
in Council, may require any change or alteration therein or in
any part thereof, or the substitution of any new bridge, culvert,
Defects to be viaduct or tunnel, or of any material for the said railway ; and
made good, thereupon the company to which such railway belongs, or the
DOMINION AND PROVINCIAL RAILWAY ACTS. xcv
company using, running or controlling the same, shall, after
notice thereof in writing, (3) proceed to make good or remedy
the defects in the said portions of the railway, or in the locomo-
tive, car or carriage which has been so condemned, or make such
change, alteration or substitution as has been required by the
(Minister). (4)
N. B., 1891, ch. 18, sec. 44. "When a bridge, culvert, viaduct, tunnel, fence?
cattle guard, road crossing, or any portion of a railway constructed or in
course of construction, or a locomotive, car or carriage used or for use on a
railway, has been condemned, on the report of an inspector, by the Chief
Commissioner of Public Works, with the approval of the Lieutenant Gover-
nor in Council, the Company to which the railway belongs, or the Company
using, running, or controlling the same, shall, after such notice in writing
signed by the Chief Commissioner of Public Works, proceed to make good
or remedy the defects in the said portion of the railway, or in the locomotive
or carriage, which shall have been so condemned, and when any change or
any alteration in any railway, or any part thereof, or the substitution of a new
bridge, culvert, viaduct, or tunnel, or of any material for the said railway has
been required by tlie Chief Commissioner of Public Works, as aforesaid, the
Company to which the railway belongs, or the Company using, running, or
controlling the same, shall make such change, alteration or substitution here-
inbefore referred to, as has been required in the manner aforesaid by the Chief
Commissioner."
R. S. O., ch. 170, sec. 57. Same as New Brunswick.
R. S. Q , Art. 5189. Same as Dominion, excepting (i) lt Railway Com-
mittee," (2) " Lieutenant," (3) " signed by the Chairman of the Committee,
and countersigned by the Secretary thereof," (4) " Committee."
R. S. N. S., ch. 53, sec. 39 — (l) " Governor in Council." (2) Signed by
the Commissioner of Public Works and Mines." (4) " Governor in Council."
£O6. Whenever that portion of any railway which crosses or If railway is
is constructed upon or along any turnpike road, street or Ot^r!^'^'^*!
public highway at rail level is out of repair, the chief officer of notice to be
the municipality, or other local division, having jurisdiction overgiven'
such highway, may serve a notice upon the company, in the usual
manner, requiring the repair to be forthwith made ; and, if the
company does not forthwith make the same, such officer may
transmika copy of the notice so served to the Minister ; and there-
upon the Minister shall, with all possible dispatch, appoint a day
for an examination into the matter ; and shall, by mail, give Proceedings
notice to such chief officer and to the company of the day so tei*
fixed.
R. S. O., ch. 170, sec. 67 (i). Where a level crossing or a railway is out of
repair, the (mayor, warden, reeve, or other chief officer) (a) of the Munici-
cipality (i) within whose jurisdiction the crossing is situate may serve a
notice upon the Company in the usual manner, requiring the repair to be forth-
with made, and if the Company does not forthwith make the same, such
XCVl
THE RAILWAY LAW OF CANADA.
Inspection
and proceed-
ings there-
upon.
officer may transmit a copy of the notice so served to the (Inspector of Rail-
ways), (2) and thereupon it shall be the duty of the (Inspector), (/;) with all pos-
sible dispatch, to appoint a day when he will examine into the matter, and (he)
(3) shall by mail give notice to the (mayor, warden, or proper officer), (4) and
to the Company, of the day he so fixes, and upon the day named (he shall exam-
ine the crossing), (5) and a certificate under his hand shall be final upon the
subject so in dispute between the parties, and if the Inspector determines that
any repairs are required, he shall specify the nature thereof in his certificate,
and direct the Company to make the same, and the Company shall thereupon,
with all possible dispatch, comply with the requirements of the certificate,
and in case oi default, the municipality (6) within whose jurisdiction the said
crossing is situate may make the repairs and may recover all costs, expenses
and outlays in the premises by action against the Company in any Court of
competent jurisdiction as money paid to the Company's use.
(2) Neither this section, nor any proceeding had thereunder, shall at all
affect any liability otherwise attaching to the Company in the premises.
R. S. Q., Art. 5196. Same as Ontario, excepting (i) "or other local
division," (2) '; Secretary of the Raihvaj Committee," (3) " the Committee/'
(4) " chief officer," (5) ''such crossing shall be examined by an engineer
appointed by the Railway Committee," (6) " or other local division," («)
" chief officer."
N. B., 1891, ch. 18, sec. 54. Same as Ontario.
R. S. N. S., ch. 53, sec. 46. Same as Quebec, excepting (2) '' Commis-
sioner of Public Works." (6) Governor in Council."
2O7. Upon the day so named the said portion of the railway
shall be examined by the engineer directed by the Minister to
make such examination, and any certificate under his hand shall
be final on the subject so in dispute between the parties ; and, if
the inspecting engineer determines that any repairs are required,
he shall specify the nature thereof in his certificate, and direct the
company to make the same ; and the company shall thereupon,
with all possible despatch, comply with the requirements of such
certificate.
R. S. O., ch. 170, sec. 67 (i).
R. S. Q., Art. 5196.
N. B., 1891, ch. 18, sec. 54.
R. S. N. S.,ch. 53, sec. 46.
See under sec. 206 of Dominion Act.
Provis'on if 2O8. In case of default, the proper authority in the munici-
the company pality or other local division, within whose jurisdiction the said
makes de
fault
portion of the railway is situate, may make such repairs, and may
recover all costs, expenses and outlays in the premises, by action
against the company in any court of competent jurisdiction, as
money paid to the company's use ; but neither this section nor
any proceeding had thereunder shall at all affect any liability
otherwise attaching to such company in the premises.
DOMINION AND PROVINCIAL RAILWAY ACTS. xcvii
R. S. O., ch. 170, sec. 67 (i). -\
R. S. Q., Art. 5196. I g und 2o6 f Dominion Act
N. B., 1891, ch. 18, sec. 54. C
R. S. N. S., ch. 53, sec. 46. )
209. The (Minister or any inspecting engineer), (i) may (2) Regulation of
limit the number (of times) (3) or rate of speed of running
trains or vehicles, upon any railway or portion of railway, until
such alterations or repairs as he thinks sufficient have been made
(or until such time as he thinks prudent) ; (a) and the company
owning, running or using such railway shall forthwith comply
with any such order of the (Minister or an inspecting engineer),
(4) upon notice thereof as aforesaid ; and for every act of non- Penalty,
compliance therewith, such company shall forfeit to Her Majesty
the sum of two thousand dollars.
R. S. O., ch. 170, sec. 60. — (i) "Commissioner of Public Works," (2)
" with the sanction of the Lieutenant Governor in Council," (3) "or times,"
(4) " Inspector or of the Commissioner."
R. S. Q., Art. 5197- — (i) " Railway Committee or the inspecting" engi-
neer," (4) " Railway Committee or inspecting engineer."
N. B., 1891, ch. 18, sec. 47. Same as Ontario, excepting (a) omitted.
R. S. N. S., ch. 53, sec. 47. — (i), (2) " Governor in Council or inspecting
engineer or engineers.
210. If, in the opinion of any (inspecting engineer), (i) it is Running of
dangerous for trains or vehicles to pass over any railway, or11 ai°?,maj .^
1 ' prohibited in
any portion thereof, until alterations, substitutions or repairs are case of dan-
made thereon, or that any particular car, carriage or locomo-ger-
tive should be run or used, the said (engineer) (2) may forth-
with forbid the running of any train or vehicle over such railway
or portion of railway, or the running or using of any such car,
carriage or locomotive, by delivering or causing to be delivered
to the president, managing director or secretary or superin-
tendent of the company owning, running or using such railway,
or to any officer having the management or the control of the
running of trains on such railway, a notice in writing to that
effect, with his reasons therefor, in which he shall distinctly
point out the defects or the nature of the danger to be appre-
hended (and for every act of non-compliance therewith such Penalty,
company shall forfeit to Her Majesty the sum of two thousand
dollars). (3)
R. S. O., ch. 170, sec. 58. — (I) " Railway Inspectors," (2) " Inspector,"
(3) omitted.
R. S. Q., Art. 5190. Same as Dominion, excepting (3) omitted.
N. B., 1891, ch. 18, sec. 45.
R. S. N. S., ch. 53, sec. 40. — (I) " Such engineer," (3) omitted.
G
xcviii THE RAILWAY LAW OF CANADA.
Report and 211. The (inspecting engineer) (i) shall forthwith report
action thereon. the same to th(? (Minister), (2) who, with the sanction of the
Governor in Council, may either confirm, modify or disallow the
actor order of the inspecting engineer ; and notice of such con-
firmation, modification or disallowance shall be duly given to the
company affected thereby.
R. S. O., ch. 170, sec. 59. — (l) " Inspector," (2) " Commissioner of
Public Works. "
R. S. Q., Art. 5191. — (2) " Railway Committee."
N. B., 1891, ch. 18, sec. 46. Same as Ontario.
R. S. N. S., ch. 53. sec. 41 — (2), " Governor in Council."
PROOF OF PROCEEDINGS AT MEETINGS — NOTICES.
Copies of 212. Copies of the minutes of proceedings and resolutions
* °^ ^ie snareh°Wers of the company, at any (annual) (a) or
special meeting, and of the minutes of proceedings and resolu-
tions of the directors, at their meetings, extracted from the minute
books kept by the secretary of the company, and by him certified
to be true copies extracted from such minute books, shall be (i)
evidence of such proceedings and resolutions in any court. (2)
R. S. O., ch. 170, sec. 40 (3). (I) " Prima facie," (2) '< of civil juris-
diction," (a) " general."
R. S. Q., Art. 5139 (3). — Same asJDominion, excepting (a) " general."
R. S. M., ch. 130, sec. 100. Same as Ontario.
N. B., 1891, ch. 18, sec. 31 (3). Same as Ontario.
R. S. N. S., ch. 53, sec. 24 (3).— (i) " General."
Notice by sec- 213. All notices given by the secretary of the company, by
retary valid. or(jer Qf fae directors, shall be deemed notices by the directors
and the company.
R. S. O., ch. 170, sec. 40 (4).
R.S.Q., Art. 5139 (4).
R. S. M., ch. 130, sec. 101.
N. B., 1891, ch. 18, sec. 3! (4).
R. S. N. S., ch. 53, sec. 24 (4).
BY-LAWS, RULES AND REGULATIONS.
Company may 214. The company may, subject to the provisions and
make by-laws restrictions in this and in the special Act contained, make by-
for certain -,-,.. , . '
purposes. laws, rules or regulations for the following purposes, that is to
say : —
Speed, etc. (#) For regulating the mode by which, and the speed at
which carriages using the railway are to be moved or propelled ;
DOMINION AND PROVINCIAL RAILWAY ACTS. xcix
(b} For regulating the hours of the arrival and departure of Time.
any such carriages ;
(c) For regulating the loading or unloading of such carriages, Loads.
and the weights which they are respectively to carry ;
(d) For regulating the receipt and delivery of goods and Goods.
other things which are to be conveyed upon such carriages ;
(e) For preventing the smoking of tobacco, and the com- Nuisances.
mission of any other nuisance in or upon such carriages, or in
any of the stations or premises occupied by the company ;
(/) For regulating the travelling upon, or the using or work- Use of rail-
ing of, the railway ;
(g) For regulating the conduct of the officers, servants and Conduct of
, ,. , , officers, etc.
employees of the company ; and —
(h} For providing for the due management of the affairs of Management.
the company in all respects whatsoever.
R. S. O., ch. 170, sec. 87. Every Railway Company shall make such
by-laws, rules and regulations, to be observed by the conductors, engine
drivers, and other officers and servants of the Company, and by all other
Companies and persons using the railway of such Company, and such regula-
tions in regard to the construction of the carriages and other vehicles to be
used in the trains on the railway of the Company, as are requisite for ensur-
ing the perfect carrying into effect of the provisions of this part of this Act,
and the orders and regulations of the (Lieutenant Governor in Council), (i)
R. S. Q. Art. 5140 (I). Same as Ontario.
N. B., 1891, ch. 18, sec. 68. Same as Ontario.
R. S. N. S., ch. 53, sec. 60 (i). Same as Ontario.
. The company may, for better enforcing the observ- Penalty for
ance of any such by-law, rule or regulation, thereby prescribe
penalty not exceeding forty dollars for any violation thereof.
R. S. O., ch. 170, sec. 88. " Any Railway Company may, by a by-law,
impose upon any officer, person or servant, who, before the contravention of
such by-law, has had notice thereof, and is employed by the company, a
forfeiture to the company of not less than thirty days' pay of such officer or
servant, for any contravention of such by-laws, and may retain such forfeiture
out of the salary or wages of the offender."
R. S. Q., Art. 5141. Same as sec. 88 of Ontario.
R. S- Q., Art. 5140 (4). " Any of the conductors, engine-drivers, and
other office^ and servants of the company or other railway companies using
any railway offending against any such by-law, shall forfeit, for every such
offence, a sum not exceeding $40 ; such forfeiture to be imposed by the com-
pany in such by-law, as a penalty for every such offence."
R. S. Q., Art. 5140 (5). " If the infraction or non-observance of any such
by-law, by any of the classes in the next preceding paragraph mentioned, be
attended with danger or annoyance to the public, or hindrance to the com-
pany in the lawful use of the railway, it shall be lawful for the company
Form of by-
laws.
Sanction.
Publication.
c THE RAILWAY LAW OF CANADA.
summarily to interfere, using no violence or unnecessary force, to obviate or
remove such danger, annoyance or hindrance, and that without prejudice to
any penalty incurred by the infraction of any such by-law."
R. S. N. S., ch. 53, sec. 60 (4). Same as Quebec. Sees. 5140(4), 5140
(5)-
216. All by-laws, rules and regulations of the company shall
be reduced to writing, be signed by the chairman or person
presiding at the meeting at which they are adopted (have affixed
thereto the common seal of the company), (i) and be kept in the
office of the company.
R. S. O., ch. 170, sec. 40 (i). — (i) omitted.
R. S. Q., Art. 5139 (i). Same as Dominion.
R. S. Q., Art. 5140 (3). Same as Dominion.
R. S. M. , ch. 130, sec. 98. Same as Ontario.
N. B., 1891, ch. 18, sec. 31. Same as Ontario.
R. S. N. S., ch. 53, sec. 60 (3), sec. 24 (i). — (i) omitted.
217. All such by-laws, rules and regulations shall be sub-
mitted from time to time to the (Governor in Council) (i) for
approval (and no such by-laws, rule or regulation shall have any
force or effect until it is approved by the Governor in Coun-
cil). (2)
R. S. O., ch. 170, sec. 40(2). — (i) "Lieutenant Governor in Council,"
(2) omitted.
R. S. Q., Art. 5139 (2). Same as Ontaiio.
R. S. Q., Art. 5140 (6). Same as Ontario.
R. S. M., ch. 130, sec. 99. Same as Ontario.
N. B., 1891, ch. 18, sec. 31 (2). Same as Ontario.
R. S. N. S., ch. 53, sec. 24 (2). Same as Dominion, excepting (2) omitted.
218. A printed copy of so much of any by-law, rule or
regulation as affects any person other than the (shareholders or
the officers, servants or employees) (i) of the company, shall be
openly affixed (and kept affixed to a conspicuous part of every
station belonging to the company, and so as to give public notice
thereof to the persons interested therein or affected thereby ; and
in the Province of Quebec such notice shall be published both in
the English and French languages). (2)
R. S. O., ch. 170, sec. 40 (i). — (i) ".rrembers or servants," (2) substitute
" in all and every passenger car, and in all and every place where tolls are to
be gathered, and in like manner so often as any change or alteration is made
in the same."
R. S. Q., Art. 5139 (i). Same as Ontario, sec. 40 (i).
R. S. M., ch. 170, sec. 98. Same as Ontario, sec. 40 (i).
N. B., 1891, ch. 18, sec. 31.
DOMINION AND PROVINCIAL RAILWAY ACTS. ci
R. S. Q., Art. 5140 (7). " The substance of any such by-law, when
approved as aforesaid, if it affect any officer or servant of the company, may
be proved by proving the delivery of a copy to or its receipt by such officer
or servant, and if it affect any other railway company using the railway,
it shall be painted on boards, or printed on paper and pasted on boards, and
hung up and affixed and continued on the front or other conspicuous part of
every wharf or station belonging to the company, according to the nature or
subject matter of such by laws respectively, and so as to give public notice
thereof to the persons interested therein or affected thereby.
" Such boards shall be from time to time renewed as often as the by-laws
thereon or any part thereof shall be obliterated or destroyed.
" No penalty imposed by any such by-laws shall be recoverable unless
the same shall have been published and kept published in manner aforesaid."
R. S. N. S., ch. 53, sec. 24 (i). Same as Ontario.
219. A printed copy of so much of any by-law, rule or order Publication
as relates to the conduct of or affects the officers, servants or affectin^em
employees of the company, shall be given to every officer, servant ployees.
and employee of the company thereby affected ; and in the Pro-
vince of Quebec such notice shall be published both in the
English and French languages.
R. S. O.,ch. 170, sec. 89. The notice of the by-law, or of any order or
notice of the (Commissioner of Public Works) (i) maybe proved by proving
the delivery of a copy thereof to the officer, servant, or person, or that he has
signed a copy thereof, or that a copy thereof was posted in some place where
his work or his duties, or some of them, were to be performed.
R. S. Q., Art. 5142. Same as Ontaiio, excepting (I) "Railway Com-
mittee or Inspecting Engineer ".
N. B., 1891, ch. 18, sec. 69. Same as Ontario.
R. S. N. S., ch. 53, sec. 52. Same as Ontario, excepting (i) " Governor-
dn Council or Inspecting Engineer or Engineers."-
220. Such by-laws, rules and regulations, when so confirmed, Who shall be
shall be binding upon and observed by all persons, (i) and shall
be sufficient to justify all persons acting thereunder.
R. S. Q., Art. 5140 (8). — (i) "mentioned in the fourth paragraph of this
article."
221. If the violation or non-observance of any such by-law Summary in-
•(i) (rule or regulation) (2) is attended with danger or annoyance terference in
, , ,. , • •• • r , ..certain cases,
to the public, or hindrance to the company in the lawful use of
the railway, the company may summarily interfere, (3) to
obviate or remove such danger, annoyance or hindrance, and
without prejudice to any penalty incurred by the violation of such
by-law, rule or regulation.
R. S. Q., Art. 5140 (5). — (i) "by any of the classes in the next preceding
.paragraph mentioned," (2) omitted, (3) "using no violence or unneces-
sary force."
cii THE RAILWAY LAW OF CANADA.
Certified copy 222. A copy of any by-law, rule or regulation certified as
to be evidence. , , ., ,. , , ,, ,
correct by the president or secretary of the company shall be
evidence thereof in any court.
R. S. 0. -\
R S O
T^' r>' "" > See under sec. 219 supra,
R! S.'N. S. J
TOLLS.
Tolls, how 223. Subject to the provisions and restrictions in this and in
fixed. the Speciai Act contained, the company may, by by-laws, or
the directors, if thereunto authorized by the by-laws, may,
from time to time, fix and regulate the tolls to be demanded and
taken for all passengers and goods transported upon the railway,
or in steam vessels belonging to the company.
R. S. O., ch. 170, sec. 31 (i). "Tolls shall be from time to time
fixed and regulated by the by-laws of the company, or by the directors, if
thereunto authorized by the by-laws, or by the shareholders at any general
meeting, and may be demanded and received for all passengers and goods
transported upon the railway, or in the steam vessels to the undertaking
belonging, and shall be paid to such persons and at such places near to the
railway, in such manner and under such regulations as the by-laws direct."
R. S. Q., Art. 5172 (I). Same as Ontario.
R. S. M., ch. 130, sec. 39. Same as Ontario.
N. B., 1891, ch. 18, sec. 23.
R. S. N. S.. ch. 53, sec. 17 (i). Same as Ontario.
No discrimi- 224:. Such tolls may be fixed either for the whole or for any
made particular portions of the railway ; but all such tolls shall always,
under the same circumstances, be charged equally to all persons,
and at the same rate, whether per ton, per mile or otherwise, in
respect of all passengers and goods and railway carriages of the
same description, and conveyed or propelled by a like railway
carriage or engine, passing only over the same portion of the line
of railway ; and no reduction or advance in any such tolls shall
be made, either directly or indirectly, in favor of or against any
particular company or person travelling upon or using the rail-
way.
R. S. O., ch. 170, sec. 31 (6). All or any of the tolls may by by-law be
reduced and again raised as often as deemed necessary for the interests of the
undertaking, but the same tolls shall be payable at the same time and under
the same circumstances upon all goods and by all persons, so that no undue
advantage, privilege or monopoly may be afforded to any person or class of
persons by any by-laws relating to the tolls.
R. S. Q., Art. 5172 (6). Same as Ontario.
R. S. M., ch. 130, sec. 44. Same as Ontario.
N. B., 1891, ch. 1 8, sec. 23 (6). Same as Ontario.
R. S. N. S., ch. 53, sec. 17 (6). Same as Ontario.
DOMINION AND PROVINCIAL RAILWAY ACTS. ciii
225. The tolls fixed for large quantities or long distances Special rates,
may be proportionately less than the tolls fixed for small quantities
or short distances, if such tolls are, under the same circumstances,
charged equally to all persons ; but in respect of quantity, no
special toll or rate shall be given or fixed for any quantity less
than one car load of at least ten tons.
223. The company, in fixing or regulating the tolls to be Classification
demanded and taken for the transportation of goods, shall, except °
in respect to through traffic to or from the United States, adopt
and conform to any uniform classification of freight which the
Governor in Council on the report of the Minister, from time to
time, prescribes.
227- No tolls shall be levied or taken until the by-law fixing Tolls to be
such tolls has been approved of by the Ci) Governor in Council* •PP'oved by
. ^ . . Governor in
nor until after two weekly publications in the {Canada} (2) Council.
Gazette of such by-law and of the Order in Council approving
thereof (nor shall any company levy or collect any money for Tolls for ser-
services as a common carrier except subject to the provisions of vice asco.m"
1 mon carrier.
this Act). (3)
R. S. O., ch. 170, sec. 31 (9).— (i) "Lieutenant," (2) "Ontario," (3)
omitted.
R. S. Q., Art. 5172 (9).— (i) "Lieutenant," (2) "Quebec," (3)
omitted.
R. S. M.,ch. 130, sec. 47.— (I) "Lieutenant," (2) "Manitoba," (3)
omitted.
N. B., 1891, ch. 18, sec. 23 (9).— (i) "Lieutenant," (2) "Royal,"
(3) omitted.
R. S. N. S., ch. 53, sec. 17 (9). Same as N.B.
22S. Every by-law fixing and regulating tolls shall be subject Revision of
to revision by the (i) Governor in Council, from time to time, by-law fixing
after approval thereof; and after an Order in Council (altering)
(a) the tolls fixed and regulated by any by-law, has been twice
published in the {Canada) (2) Gazette, the tolls mentioned in
such Order in Council shall be substituted for those mentioned in
the by-law, so long as the Order in Council remains unrevoked.
R. S.O., ch. 170, sec. 31 (10). — (i) "Lieutenant," (2) ''Ontario,"
(a) "reducing."
R. S. O., ch. 170, sec. 31 (n). The Legislature may from time to time
reduce the tolls upon the railway, but not without the consent of the Company,
so as to produce less than fifteen per cent, per annum profit on the capital
actually expended in its construction, nor unless, on an examination made by
civ THE RAILWAY LAW OF CANADA.
the Chief Commissioner of Public Works of the amount received and expended
by the Company, the net income from all sources for the year then last past
is found to have exceeded fifteen per cent, upon the capital so actually
expended.
R. S. O., ch. 170, sec. 31 (12). The by-laws of every Railway Company,
heretofore or hereafter incorporated, regulating the tolls to be taken on such
road, in the special Act respecting which a provision has been inserted, that
such railway should be subject to the provisions of any general Act relating to
railways, shall be subject to the approval of the Lieutenant Governor in
Council ; and no by-law of any Railway Company in this Province, by which
tolls are to be imposed or altered, or by which any party, other than the mem-
bers, officers and servants of the Company, are intended to be bound, shall
have any force or effect until the same has been approved and sanctioned by
the Lieutenant Governor in Council.
R. S. Q., Art. 5172 (10). — (i) "Lieutenant," (a) "reducing," (2)
" Quebec."
R. S. Q., Art. 5172 (ii). Same as Ontario, sec. 31 (II).
R. S. Q., Art. 5172 (12). " No by-law of any railway company, by which
any tolls are to be imposed or altered, or by which any person, other than
the members, officers and servants of the company, are intended to be bound,
shall have any force or effect until the same has been approved and sanctioned
by the Lieutenant-Governor in Council."
R. S. M., ch. 130, sec. 48.— (i) " Lieutenant," (a) " reducing," (2)
'• Manitoba."
R. S. M., ch. 130, sec. 49. Same as Ontario, sec. 31 (12).
N. B., 1891, ch. 18, sec. 23 (10). — (i) " Lieutenant," (a) "reducing,"
(2) " Royal."
N. B., 1891, ch. 18, sec. 23 (n). Same as Ontario, sec. 31 (ii).
N. B., 1891, ch. 18, sec. 23 (12). Same as Ontario, sec. 31 (12).
R. S. N. S., ch. 53, sec. 17 (ro). Same as Ontario, sec. 31 (10), excepting
(2) "Royal."
Fractions, 229. In all cases, a fraction in the distance over which goods
now estimated. or passengers are transported on the railway shall be considered
as a whole mile ; and for a fraction of a ton in the weight of any
goods, a proportion of the tolls shall be demanded and taken
(according to the number of quarters of a ton contained therein,
and a fraction of a quarter of a ton shall be deemed and consi-
dered as a whole quarter of a ton), (i)
R. S. O., ch. 170, sec. 31 (7).
R. S. Q., Art. 5172 (7).
R. S. M., ch. 130, sec. 45.
N. B., 1891, ch. 18, sec. 23 (7). (i) substitute "but no fraction of a ton
shall be deemed or considered to be less than one hundred pounds avoirdu-
poids."
R. S. N. S., ch. 53, sec. 17 (7). Same as Dominion.
Tariff to be 23O. The (company) (i) shall, from time to time, cause to
posted up. be printed and posted up in its offices, and in every place where
the tolls are to be collected (in some conspicuous position), (2)
a printed board or paper, exhibiting (#) all the rates of tolls
DOMINION AND PROVINCIAL RAILWAY ACTS. cv
payable, and particularizing the price or sum of money to be
charged or taken for the carriage of any matter or thing.
R. S. O., ch. 170, sec. 31 (8). — (r) " directors," (2) " and in every pas-
senger car, in some conspicuous place there."
R. S. Q., Art. 5172 (8). (l) " directors," (a) "in French and English."
R. S. M., ch. 130, sec. 46. Same as Ontario.
N. J5., 1891, ch. 1 8, sec. 23 (8).— (i) " directors."
R. S. N. S., ch. 53, sec. 17 (8).— (i) "directors."
231. Such tolls shall be paid to such persons and at such Tolls, to
places, near to the railway, in such manner and under such regu- ^^ ^
lations as the by-laws direct.
R. S. O. i
R. S.Q. |
R. S. M. [- See under sec. 224 supra of Dominion Act.
N. M.
R. S. N. S. )
232. No company, in fixing any toll or rate, shall, under like Discrimina-
conditions and circumstances, make any unjust or partial dis-tlon*
crimination between different localities ; but no discrimination When allow-
between localities, which, by reason of competition by water orable-
railway, it is necessary to make to secure traffic, shall be deemed
to be unjust or partial.
233. No company shall make or give any secret special toll. No secret
rate, rebate, drawback or concession to any person ; and every s^e
company shall, on the demand of any person, make known to
him any special rate, rebate, drawback or concession, given to
anyone.
234. In case of denial or neglect of payment on demand of Enforcement
any such tolls, or any part thereof, the same shall be recoverable of PaYment of
in any court of competent jurisdiction ; or the agents or servants
of the company may seize the goods for or in respect whereof
such tolls are payable, and may detain the same until payment
thereof, and in the meantime the said goods shall be at the risk
of the owners thereof.
R. S. O., ch. 170, sec. 31 (2).
R. S. Q., Art. 5172 (2).
R. S. M., ch. 130, sec. 40.
N. B., 1891, ch. 18, sec. 23 (2).
R. S. N. S., ch. 53, sec. 17 (2).
CV1
THE RAILWAY LAW OF CANADA.
Sale of goods
in default of
payment.
Sale of un-
claimed
goods.
Application
of proceeds.
Disposal of
unclaimed
balance.
235. If the tolls are not paid within six weeks, the company
may sell (#) the whole or any part of such goods, and out of the
money arising from such sale retain the tolls payable, and all
(reasonable) (i) charges and expenses of such seizure, detention,
and sale, and shall deliver the surplus, if any, or such of the
goods as remain unsold, to the person entitled thereto. (2)
R. S. O., ch. 170, sec. 31 (3). — (i) omitted.
R. S. Q., Art. 5172 (3).— (i) omitted.
R. S. M., ch. 130, sec. 41. — (i) omitted.
N. B., 1891, ch. 18, sec. 23 (3). (a) " By public auction, after six days
public notice," (i) omitted, (2) but in case of perishable goods the same
may be sold before the expiration of six weeks, and upon reasonable notice."
R. S. N. S., ch. 53, sec. 17 (3). — Same as Dominion, excepting (b) "on-
publishing an advertisement of such sale for one week in any newspaper,
published nearest to the station where the tolls are payable," (i) omitted.
236. If any goods remain in the possession of the company
unclaimed for the space of twelve months, the company may there-
after, and on giving public notice thereof by advertisement, for
six weeks, in the {Official Gazette of the Province in which such
goods are) (i) (and in such other newspapers as it deems neces-
sary) (2) sell such goods by public auction, at a time and place
which shall be mentioned in such advertisement, and, out of the
proceeds thereof, pay such tolls and all reasonable charges for
storing, advertising and selling such goods ; and the balance of
the proceeds, if any, shall be kept by the company for a further
period of three months, to be paid over to any person entitled
thereto.
R. S. O., ch. 170, sec. 31 (4).— (i) "Ontario."
R. S. Q., Art. 5172 (4). — (2) omitted.
R. S. M., ch. 130, sec. 42. — (i) " Manitoba Gazette''
N. B., 1891, ch. 18, sec. 23 (4).— (i) " Royal Gazette?'
R. S. N. S., ch. 53, sec. 17 (4). Same as N.B.
£37- In default of such balance being claimed before the ex-
piration of the period last aforesaid, the same shall be paid over
to the (Minister of Finance and Receiver General for the public
uses of Canada) (i) until claimed by the person entitled thereto.
R. S. O., ch. 170, sec. 31 (5). — (i) " Provincial Treasurer to be applied to
the general purposes of the Province."
R. S. Q., Art. 5172 (5). Same as Ontario.
R. S. M., ch. 130, sec. 43. Same as Ontario.
N. B., 1891, ch. 18, sec. 23 (5) — (i) " Receiver General to be applied to
the general purposes of the Province."
R. S. N. S-, ch. 53, sec. 17 (5). Same as Ontario.
DOMINION AND PROVINCIAL RAILWAY ACTS. cvii
TRAFFIC ARRANGEMENTS.
. The directors of any company may. at any time, make Arrange-
, ' . , mentsfor m-
and enter into any agreement or arrangement with any other com- terchange of
pany, either in (Canada) (i) or elsewhere, for the regulation traffic.
and interchange of traffic passing to and from the company's
railways, and for the working of the traffic over the said rail-
ways respectively, or for either of those objects separately, —
and for the division and apportionments of tolls, rates and
charges in respect of such traffic, — and generally in relation to the
management and working of the railways, or any of them, or any
part thereof, and of any railway or railways in connection there-
with, for any term not exceeding (twenty-one years), — (a) and to
provide, either by proxy or otherwise, for the appointment of a
joint committee or committees for the better carrying into effect
of any such agreement or arrangement, with such powers and func-
tions as are considered necessary or expedient, — subject to the Proviso: as to
consent of two-thirds of the stock-holders voting in person or by
proxy (and also to the approval of the Governor in Council). (2)
R. S. O., ch. 170, sec. 77. — (r) "This Province," (2) substitute " but
the provisions of this section shall not apply to anything done before the 301 h
day of June, 1858."
R. S. Q., Art. 5207. — (I) " in the Province," (a) " fifty years," (2)
omitted.
N. B., 1891, ch. 18, sec. 64.— (I) " in this Province," (2) omitted.
R. S. N. S., ch. 53, sec. 58 (i). Same as Dominion, excepting (2) omitted.
239. Before such approval is given, notice of the application Notice of ap-
therefor shall be published in the Canada Gazette for at least*1 f°r
two months previously to the time therein named for the mak-
ing of such application ; and such notice shall state a time and
place when the application is to be made, and that all persons
interested may then and there appear and be heard on such
application.
Every company shall, according to its power, afford all Facilities to
reasonable facilities to any other railway company for the afforded in.
receiving and forwarding and delivery of traffic upon and from traffic.
the several railways belonging to or worked by such companies
respectively, and for the return of carriages, trucks and other
vehicles ; and no such company shall make or give any undue No undue ad-
or unreasonable preference or advantage to or in favor of any Vanta8e-
CV111
THE RAILWAY LAW OF CANADA.
As to con-
tinuous lines
of railway.
Agreements
in violation
void.
Penalty for
refusal by
officer to re-
ceiye and
convey goods
particular person or company, or any particular description of
traffic in any respect whatsoever, — nor shall any such company
subject any particular person or company, or any particular
description of traffic to any undue or unreasonable prejudice or
disadvantage in any respect whatsoever ; and every company
which has or works a railway which forms part of a continu-
ous line of railway, (#) or which intersects any other railway,
or which has any terminus, station or wharf near to any terminus,
station or wharf of any other railway, shall afford all due and
reasonable facilities for receiving and forwarding by its railway
all the traffic arriving by such other railway, without any un-
reasonable delay, and without any such preference or advantage,
or piejudice or disadvantage, as aforesaid, and so that no obstruc-
tion is offered (to the public desirous of) (i) using such railway
as a continuous line of communication, and so that all reasonable
accommodation (by means of the railways of the several com-
panies) (2) is, at all times, afforded (to the public in that
behalf), (3) and any agreement made between any two or more
companies contrary to this section (4) shall be unlawful, and
null and void.
R. S. O., ch. 170. sec. 78 (i).— (i) " in the," (2) omitted, (3) " by and
to the several railway companies."
R. S. O. , ch. 170, sec. 78 (2). — (4) " made since the iSth day of May,
1861, or after the passing of this Act."
R. S. Q., Art. 5207 (2).— (i) " in the," (2) omitted, (3) " by and to the
several railway companies."
N. B., 1891, ch. 18. sec. 65. Same as Quebec.
R. S. N. S., ch. 53, sec. 58 (2). — (a) " or railway and steamer connection."
241. Every officer, servant or agent of any company, having
the superintendence of the traffic at any station or depot there-
of, who refuses or neglects to receive, convey or deliver at any
station or depot of the company for which they are destined,
any passenger, goods or thing, brought; conveyed or delivered
to him or such company, for conveyance over or along its rail-
way from that of any other company, intersecting or being near to
such first mentioned railway, or who in any way wilfully violates
the provisions of the next preceding section, and the company
first mentioned are, for each such refusal, neglect or offence,
severally liable, on summary conviction, to a penalty not ex-
ceeding fifty dollars over and above the actual damages sus-
DOMINION AND PROVINCIAL RAILWAY ACTS. cix
tained ; which penalty shall be recoverable with costs, (i) by the Recovery and
railway company or by any person aggrieved by such neglect or *
refusal, and such penalty shall belong to the said railway com-
pany, or other person so aggrieved.
R. S. O., ch. 170, sec. 79. — (i) " in a summary way before any Justice
of the Peace."
R. S. Q., Art. 5207 (4). Same as Ontario.
N. B. , 1891, ch. 18, sec. 66. Same as Ontario.
R. S. N. S., ch. 53, sec. 58 (4). Same as Ontario.
:'£. Every company which grants any facilities to any Equal facili
incorporated express company or person shall grant equ
facilities on equal terms and conditions to any other incorporated etc.
express company which demands the same.
R. S. N. S.,ch. 53, sec. 58(3).
WORKING OF THE RAILWAY.
343. Every railway company, which runs trains upon the ^est appli-
railway for the conveyance of passengers, shall provide and comrmmica-
cause to be used in and upon such trains such known apparatus tion and for
and arrangements as best afford good and sufficient means of fams't^be
immediate communication between the conductors and the engine used.
drivers of such trains while the trains are in motion, — and good
and sufficient means of applying, by the power of the steam
engine or otherwise, at the will of the engine driver or other
person appointed to such duty, the brakes to the wheels of the
locomotive or tender, or both, or of all or any of the cars or
carriages composing the trains, and of disconnecting the locomo-
tive, tender and cars or carriages from each other by any such
power or means, — and also such apparatus and arrangements as
best and most securely place and fix the seats or chairs in the
cars or carriages, — and shall alter such apparatus and arrange-
ments, or supply new apparatus and arrangements, from time to
time, as the (Railway Committee) (i) orders ; and every rail- Penalty for
way company which fails to comply with any of the provisions non-cornPll-
of this section shall forfeit to Her Majesty a sum not exceed-
ing two hundred dollars for every day during which such default
continues (and shall, as well, be liable to pay to all such persons Liability for
as are injured by reason of non-compliance with these pro- damages.
visions, or to their representatives, such damages as they are
legally entitled to, notwithstanding any agreement to the con-
trary with regard to any such person). (2)
ex THE RAILWAY LAW OF CANADA.
R. S. O., ch. 170, sec. 96. — (i) " Commissioner of Public Works with the
sanction of the Lieutenant Governor in Council may order."
R. S. O., ch. 170, sec. 97. — (2) omitted.
R. S. Q., Art. 5149 Same as Dominion, excepting (2) omitted.
N. B., 1891, ch. 18, sees. 76 and 77. Same as Ontario.
R. S. N. S., ch. 53, sees. 69, 70. — (i) " Governor in Council."
•Bells and 244. Every locomotive engine shall be furnished with a
bell, of at least thirty pounds weight, and with a steam whistle.
R. S.O., ch. 170, sec. 41 (8).
R. S. Q., Art. 5173 (9).
R. S. M., ch. 130, sec. no.
N. B., 1891, ch. 18, sec. 32 (8).
R. S. N. S., ch. 53, sec. 25 (8;.
Position of 245. No baggage, freight, merchandise or lumber cars shall
passenger cars. , . , . f . , ., x
be placed m rear of the passenger cars. (-1)
R. S. O., ch. 170, sec. 41 (7). — (i) " and no officer or agent shall direct
or knowingly suffer such arrangement."
R. S. Q., Art. 5173 (8). Same as Dominion.
R. S- M., ch. 130, sec. 109- Same as Ontario.
N. B., 1891, ch. 18, sec. 32 (7). Same as Ontario.
R. S. N. S., ch. 53, sec. 25 (7). Same as Ontario, and additional " under
penalty of being found guilty of a misdemeanor and punished accordingly."
Trains to be 246. All (regular) (i) trains shall be started and run (as
hours* re§ularnear as practicable) (2) at regular hours, fixed by public notice,
and shall furnish sufficient accommodation for the transportation
of all such passengers and goods as are within a reasonable time
previously thereto offered for transportation at the place of start-
ing, and at the junctions of other railways and at usual stopping
places established for receiving and discharging way passengers
and goods from the trains ;
R. S. O., ch. 170, sec. 41 (2). — (i) omitted, (2) omitted.
R. S. Q., Art. 5173 (2). Same as Ontario.
R. S. M., ch. 130, sec. 104.
N. B., 1891, ch. 18, sec. 32 (2).
R. S. N. S.,ch. 53, sec. 25 (2). Same as Ontario.
Conveyance 2. Such passengers and goods shall be taken, transported to
and good f.CrS an<^ from, and discharged at such places, on the due payment of
the toll, freight or fare lawfully payable therefor;
R. S. O., ch. 170, sec. 41 (3).
R. S.Q., Art. 5173 (3).
R. S. M., ch. 130, sec. 105.
N. B., 1891, ch. 18, sec. 32(3).
R. S. N. S., ch. 53, sec. 25 (3).
DOMINION AND PROVINCIAL RAILWAY ACTS. cxi
3. Every person aggrieved by any neglect or refusal in the Right of
.... . , ,. • t ^i action in case
premises shall have an action therefor against the company, — Of neglect.
from which action the company shall not be relieved by any
notice, condition or declaration, if the damage arises from any
negligence or omission (i) of the company or of its servant.
R. S. O., ch. 170, sec. 41 (4). — (I) " or misconduct."
R. S. Q., Art. 5173 (4).
R. S. M., ch. 130, sec. 106. — (l) "or misconduct."
N. B., 1891, ch. 18, sec. 32 (4). — (I) " or misconduct."
R. S. N. S., ch. 55, sec. 25 (4).
247. Every servant of the (company) (i) employed in a pas- Servants to
senger train or at a station for passengers, shall wear upon his wear badSes-
hat or cap a badge, which shall indicate his office, and he shall
not, without such badge, be entitled to demand or receive from
any passenger any fare or ticket, or to exercise any of the powers
of his office, or to interfere with any passenger or his baggage or
property.
R. S. O., ch. 170, sec. 41 (i). — (i) " undertaking."
R. S. Q., Art. 5173 (i). — (i) "undertaking."
R. S. M.,ch. 130, sec. 103. — (i) "undertaking."
N. B., i89i,ch.i8, sec. 32. — (i) "undertaking."
R. S. N. S , ch. 53, sec. 25 (i).— (i) "undertaking."
24:8. Every passenger who refuses to pay his fare may, by the Expulsion of
conductor of the train and the (train) (i) servants of the company, Pas.sengers re-
c , • • , , • i . fusing to pay.
be put out of the tram, with his baggage, at any usual stopping
place, or near any dwelling house, as the conductor elects, the
conductor first stopping the train and using no unnecessary force.
R. S. O., ch. 170, sec. 41 (10).— (i) omitted.
R. S. Q., Art. 5173 (12). — (i) omitted.
R. S. M. , ch. 130, sec. 1 12. — (i) omitted.
N. B., 1891, ch. 18, sec. 32 (lo). — (i) omitted.
R. S. N. S., ch. 53, sec. 25 (u). — (i) omitted.
249. No person injured while on the platform of a car, or on injury to pas-
any baggage, wood or freight car, in violation of the printed senger stand-
regulations posted up at the time, (i) shall have any claim inf0fm) e^
respect of the injury, if room inside of such passenger cars,
sufficient for the proper accommodation of the passengers, was
furnished at the time.
R. S. O., ch. 170, sec. 41 (n). — (i) " in a conspicuous place inside of the
passenger cars then in the train."
R. S. Q., Art. 5173 (13). Same as Ontario.
R. S. M.,ch. 130, sec. 113. Same as Ontario.
N. B., 1891, ch. 18, sec. 32 (n). Same as Ontario, adding after train "or
on the outside of the door."
R. S. N. S., ch. 53, sec. 25 (12). Same as Ontario.
THE RAILWAY LAW OK CANADA.
Checks to be
affixed to
baggage.
Penalty for
refusing to
affix check.
250. Checks shall be affixed by an agent or servant to every
parcel of baggage having a handle, loop or fixture of any kind
thereupon (delivered to such agent or servant for transport), (i)
and a duplicate of such check shall be given to the passenger
delivering the same.
R. S. O., ch. 170, sec. (5). — (i) omitted.
R. S. Q., Art. 5173 (5).— (i) omitted.
R. S. M., ch. 130, sec. 107. — (i) omitted.
N. B., 1891, ch. 18, sec. 32 (5).
R. S. N. S., ch. 53, sec. 25 (5).— (i) omitted.
251. If such check is refused on demand, the company shall
pay to such passenger the sum of (eight dollars), (i) which shall be
recoverable in a civil action ; and no fare or toll shall be collected
or received from such passenger, and if he has paid his fare, the
same shall be refunded by the conductor in charge of the train.
R. S. O., ch. 170, sec. 41 (6).
R. S. Q., Art. 5173 (6).
R- S. M., ch. 130, sec. 108.
N. B., 1891, ch. 1 8, sec. 32 (6).— (i) "ten."
R. S. N. S., ch. 53, sec. 25 (6).
Evidence of
Va "(T ^
252. Any passenger who produces such check may himself
k£ a witness in any action or suit brought by him against the
company to prove the contents and value of his baggage not
delivered to him.
R. S. Q., Art. 5173(7).
As to danger- 253. No passenger shall carry, or require the company to
carry upon its railway, aquafortis or oil of vitriol, gunpowder
(nitro-glycerine) (i) or any other goods which, in the judgment
of the company, are of a dangerous nature ; and every person
who sends by the railway any such goods without, at the time of
To be plainly so sending the same, distinctly marking their nature on the out-
marked. sj^e Of tjie package containing the same, and otherwise giving
notice in writing to the (station master) (2) or other servant of
the company with whom the same are left (or who carries or
takes upon any railway train such material as is mentioned above,
for the purpose of having the same carried by the said railway
p lt /• train), (3) shall forfeit to the company the sum of (five hundred
contravention, dollars) (4) for every such offence.
DOMINION AND PROVINCIAL RAILWAY ACTS. cxiii
R. S. O., ch. 170, sec. 41 (12),— (i) "Lucifer matches," (2) "book-
keeper," (3) omitted, (4) '• twenty dollars."
R. S. Q., Art. 5173 (14).— (3) omitted.
R. S M., ch. 130, sec. 114. Same as Ontario.
N. B., 1891, ch. 18, sec. 32 (12). Same as Dominion.
R. S. N. S., ch. 53, sec. 25 (13)— (3) omitted.
254:. The company may refuse to take any package or parcel Dangerous
which it suspects to contain goods of a dangerous nature, or may ^fuseY"^
require the same to be opened to ascertain the fact (and the com-
pany shall not carry any such goods of a dangerous nature, except such
in cars specially designated for that purpose, on each side of each
of which shall plainly appear, in large letters, the words " danger-
ous explosives ; " and for each neglect to comply with the pro- Penalty for
visions of this section, the company shall incur a penalty of five contraven
hundred dollars), (i)
R. S. O., ch. 170, sec. 41 (13). — (i) omitted.
R. S. Q., Art. 5173 (15). — (I) omitted.
R. S. M., ch. 130, sec. 115. — (i) omitted.
N. B,, 1891, ch. 18, sec. 32 (13). Same as Dominion.
R. S. N. S., ch. 53, sec. 25 (14) — (i) omitted.
255. (As amended ^55-56 Vic., ch. 27, sec. 7.) When a Train to st°P
.. , , ., .... before passing
railway passes any draw or swing bridge over a navigable river, aswing bridge
canal or stream, which is subject to be opened for the purposes
of navigation, the trains shall, in every case, be stopped at least
(one minute) (i) to ascertain from the bridge tender that the said
bridge is closed and in perfect order for passing ; and in default
of so stopping for the full period of (one minute) (2) the com-
pany shall incur a penalty of four hundred dollars ;
2. " Wherever there is adopted or in use on any railway at any Exception in
such bridge an interlocking switch and signal system, or other case of inter-
device which, in the opinion of the Railway Committee, renders switches.
it safe to permit engines and trains to pass over such bridge
without being brought to a stop, the said Committee may, by an
order in writing, give permission for engines and trains to pass
over such bridge without stopping, under such regulations, as to
speed and other matters, as the said Committee deem proper ;
and the said Committee may at any time modify or revoke such
order."
R. S. O., ch. 170, sec. 95.— (i) " three minutes," (2) " three minutes,"
2nd pait of Dominion Act omitted.
R. S. Q., Art. 5148. Same as Ontario.
N. B., 1891, ch. 18, sec. 75. Same as Ontario.
R. S. N. S., ch. 53, sec. 68.
H
CX IV
THE RAILWAY LAW OF CANADA.
Penalty for
non-compli-
ance.
Bells to be 256. The bell, with which the engine is furnished, shall be
whistle' sound- runo> or tne whistle sounded, at the distance of at least eighty
edat crossings, rods from every place at which the railway crosses any highway,
and be kept ringing or be sounded at short intervals, until the
engine has crossed such highway ; and the company shall, for
each neglect to comply with the provisions of this section, incur
a penalty of eight dollars, and shall also be liable for all damage
sustained by any person by reason of such neglect ; and a moiety
of such penalty and damages shall be chargeable to and collected
by the company from the engineer who has charge of such engine,
and who neglects to sound the whistle or ring the bell as afore-
said.
R. S. O., ch. 170, sec. 41 (9).
R. S. Q., Art. 5173 (10).
N. B., 1891, ch. 18, sec. 32 (9).
R. S. M.,ch. 130, sec. in.
R. S. N. S., ch. 53, sec. 25 (9.
Person to be 257- (As amended by 56 Vic., cJi. 27, sec. 2.) A person shall
stationed at j^g stationed at every point where two main lines of railway cross
crossing.
each other at rail level, and no train shall proceed over such
crossing until signal has been made to the conductor or engineer
Electric rail- thereof that the way is clear; provided always, that in the case
lgs'of an electric street railway car crossing an electric street railway
track, it shall be the duty of the conductor before crossing to go
forward and see that the track to be crossed is clear, before giving
the hignal to the motor man that the way is clear and to proceed ;
Interpretation 2. '• Every main track of a branch line is a main line within
.tion apphca~ the meaning of this section, which shall apply whether the said
lines be owned by different companies or by the same company."
R. S. O., ch. 170, sec. 98. "Every railway company shall station an
officer at every point on their line crossed on a level by any other railway, and
no train shall proceed over such crossing until signal has been made to the
conductor thereof that the way is clear."
R. S. Q., Art. 5151. Same as Ontario.
N. B., 1891, ch. 18, sec. 78. Same as Ontario.
R. S. N. S. ch. 53, sec- 71.
Trains to stop "258. (As amended by 56 Vic., ch. 2^ sec. 2.) "Every
at crossing, locomotive or railway engine, or train of cars, on any railway,
shall, before it proceeds over any such crossing, as in the next
preceding section mentioned, be stopped for the space of at least
DOMINION AND PROVINCIAL RAILWAY ACTS. cxv
one minute ; but whenever there is in use at any such crossing an Exception.
interlocking switch and signal system, or other device which, in
the opinion of the Railway Committee, renders it safe to permit
engines and trains to pass over such crossing without being
brought to a stop, the Railway Committee may, by an order in
writing, give permission for engines and trains to pass over such
crossing without stopping, under such regulations as to speed and
other matters as the Railway Committee deems proper."
R. S. O., ch. 170, sec. 99. " Every locomotive or railway engine or train
of cars, on any railway, shall, before it crosses the track of any other railway
on a level, be stopped for the space of at least (three minutes)." (i)
R. S. Q , Art. 5152. Same as Ontario, excepting (i) " one minute."
N. B., 1891, ch. 18, sec. 79. Same as Ontario.
R. S. N. S., ch. 53, sec. 72. Same as Quebec.
259. (As amended by 55-56 Vic., ch. 27, sec. 8.) No loco- Rate of speed
motive or railway shall pass in or through any thickly peopled m C1 les' e °'
portion of any city, town or village, at a speed greater than six
miles an hour, unless the track is (fenced in the manner pre-
scribed by this Act), (i)
R. S. O., ch. 170, sec. 100. — (i) " is properly fenced."
R. S. Q., Art. 5153. Same as Ontario.
N. B., 1891, ch. 18, sec. 80. Same as Ontario.
R. S. N. S., ch. 53, sec. 73. Same as Ontario.
260. (As amended by 55-56 Vic., ch. 27, sec. 9.) Whenever As to train
any train of cars is moving reversely in any city, town or village, movinS re~
the locomotive (and tender) (i) being in the rear of such train,
the company shall station on the last car in the train a person
who shall warn persorvs standing on or crossing the track of such
railway, of the approach of such (engine, tender and) (2) train ; Penalty.
and for every violation of any of the provisions of this section,
or of any of the three sections next preceding, the company shall
incur a penalty of one hundred dollars."
R. S. O., ch. 170, sec. 101. — (I) omitted, (2) omitted.
R. S. Q., Art. 5154- Same as Ontario.
N. B., 1891, ch. 1 8, sec. 8r. Same as Ontario.
R. S. N. S., ch. 53, sec. 74.
Whenever any railway crosses any public highway at Cars not to
rail level, the company shall not, nor shall its officers, servants
or agents, wilfully permit any engine, tender or car, or any por-
tion thereof, to stand on any part of such highway for a longer
period than five minutes at one time ;
CXV1
THE RAILWAY LAW OF CANADA.
Penalty for
violation.
Proviso.
Application.
2. In every case of a violation of this section, every such offi-
cer, servant and agent who has under or subject to his control,
management or direction, any engine, tender or car which, or any
portion of which, is wilfully allowed to stand on such highway
longer than the time specified in this section, is, and such com-
pany is also, for each such violation, liable on summary convic-
tion to a penalty not exceeding fifty dollars : Provided always,
that if such alleged violation is, in the opinion of the court, ex-
cusable, the action for the penalty maybe dismissed, but without
costs.
of terms.
262. This section shall apply to every railway and railway
company within the legislative authority or jurisdiction of (the
Parliament of Canada) ; (a)
Interpretation 2. In this section the expression "packing" means a packing
of wood or metal, or some other equally substantial and solid
material, of not less than two inches in thickness, and which,
where by this section any space is required to be filled in, shall
extend to within one and a-half inches of the crown of the rails in
use on any such railway, shall be neatly fitted so as to come against
the web of such rails, and shall be well and solidly fastened to
the ties on which such rails are laid ;
Packing of
frogs, etc.
And cf wing
and guard
rails.
Proviso.
Oil cups.
3. The spaces behind and in front of every railway frog or
crossing, and between the fixed rails of every switch where such
spaces are less than five inches in width, shall be filled with pack-
ing up to the under side of the head of the rail;
4. The spaces between any wing rail and any railway frog, and
between any guard rail and the track rail alongside of it, shall
be filled with packing at their splayed ends,, so that the whole
splay shall be so filled where the width of the space between the
rails is less than five inches ; such packing not to reach higher
than to the under side of the head of the rail : Provided, how-
ever, that the (Railway Committee) (i) may allow such filling to
be left out, from the month of December to the month of April in
each year, both months included ;
5. The oil cups or other appliances used for oiling the valves
of every locomotive in use upon any railway shall be such that no
employee shall be required to go outside the cab of the locomo-
DOMINION AND PROVINCIAL RAILWAY Acrs. cxvii
tive, while the same is in motion, for the purpose of oiling such
valves.
N. B., 1891, ch. 18, sec. 85. Same as Dominion, excepting (i) " Chief
Commissioner of Public Works," (a) " this Province."
R. S. O., ch. 212, sees. 5, 6. " The Railway Accident Act."
TRAINS OVERDUE.
263. Every company, upon whose road there is a telegraph Duty of sta-
line in operation, shall have a blackboard put upon the outside gt°n ^hen5'
of the station house, over the platform of the station, in some train is over
conspicuous place at each station of such company at which ue'
there is a telegraph office ; and when any passenger train is over-
due for half an hour at any such station, according to the time
table of such company, the station master or person in charge at
such station shall write, or cause to be written, with white chalk
on such blackboard, a notice in English and French (in the Pro-
vince of Quebec, and in English in the other Provinces), (i) stat-
ing, to the best of his knowledge and belief, the time when such
overdue train may be expected to reach such station ; and if,
when that time has come, the train has not reached the station,
the station master or person in charge of the station shall write, or
cause to be written, on the blackboard in like manner, a fresh
notice, stating, to the best of his knowledge and belief, the time
when such overdue train rruy then be expected to reach such
station ;
2. Every such company, station master or person in charge at Penalty for
any such station is (on summary conviction) (2) liable to a pen- non"comPli"
alty not exceeding five dollars for every wilful neglect, omission
or refusal to obey the provisions of this section ;
3. Every such company shall have a printed copy of this sec- Copy of this
tion posted up in a conspicuous place at each of its stations atsectl°" to be
which there is a telegraph office.
R. S. Q., Art. 5174. — (i) omitted, (2) omitted. " Any suit for the re-
covery of any such penalty may be brought before any two Justices of the
Peace, or before the Circuit Court of the district or county in which such sta-
tion is situated."
" The penalty, recoverable under the provisions of this Article, shall belong
to the person suing therefor."
" Every proceeding brought by virtue of this article shall be commenced
within one month following the commission of the offence, and not after."
" Nothing in this article shall prejudice the right of any person to the
recovery of damages from any such railway by reason of detention of trains as
aforesaid . "
cxv
THE RAILWAY LAW OK CANADA.
CARRIAGE OF MAILS, NAVAL AND MILITARY FORCES, ETC.
Carriage of 264. Her Majesty's mails. Her Majesty's naval or military
Her Majesty's ... . .
mails" etc. forces or militia, and all artillery, ammunition, provisions or other
stores for their use, and all policemen, constables or others tra-
velling on Her Majesty's service, shall at all times, when required
by the Postmaster General of Canada, the Commander of the
Forces, or any person having the superintendence and command
of any police force respectively, and with the whole resources of
the company if required, be carried on the railway, on such terms
and conditions and under such regulations as the Governor (2) in
Council (i) makes. (3)
R. S. O., ch. 170, sec. 44 (i). — (i) "or Lieutenant-Governor in Council,'*
(2) " general," (3) " as the case requires."
R. S. M.j ch. 130, s>ec. 121. Same as Ontario.
N. B., 1891, ch. 18, sec. 35. Same as Ontario.
R. S. N. S., ch. 53, sec. 27 (i). Same as Dominion.
Government
TELEGRAPH LINES.
265. The company shall, when required so to do by the
(Governor in Council) (i) or any person authorized by (him)
required. (2) place any electric telegraph (and telephone lines) (3) and the
apparatus and operators it has, at the exclusive use of the Govern-
ment (of Canada), (4) receiving thereafter reasonable compensa-
tion for such service.
R. S. O., ch. 170, sec. 44 (2). — -(l) " Governor General or lieutenant-
Governor, as the case may be," (2) "them," (3) omitted, (4) omitted.
R. S. M., ch. 130, sec. 122. Same as Ontario, excepting (2) " him."
N. B , 1891, ch. 18, sec. 35 (2). Same as Ontario, excepting " telephone,"
additional.
R. S. N. S., ch. 53, sec. 27 (2). Same as Dominion, excepting (3) omitted.
R. S. Q., Art. 5176 (i). " Railway companies shall have the right to estab-
lish telegraph lines along the whole extent of the railway, at such places
along tht- line, and with offices at such places as shall be determined upon by
the directors, and such telegraphs may be used by the public generally, in
conformity with the rules and regulations that the company may adopt."
Telegraph 266. The Governor in Council may, at any time, cause a line
lines may be Or lines of electric telegraph (or telephone) (i) to be constructed
Government ^ al°ng tne lme °f tne railway, for the use of the Government (of
Canada), (2) and for that purpose may enter upon and occupy
so much of the lands of the company as is necessary for the pur-
pose.
DOMINION AND PROVINCIAL RAILWAY ACTS. cxix
R. S. N. S.,ch 53, sec. 27 (3). — (i) omitted, (2) omitted. (They may
also construct telegraph lines for public use. See sec. 7 (20).
K. S. O.,ch. 170, sec. 44 (3). " Any further enactments which the Par-
liament of Canada or the Legislature of this Province may make for the car-
riage of the mail or Her Majesty's forces, and other persons and articles as
aforesaid, or the tolls therefor, or in any way respecting the use of any elec-
tric telegraph or other service to be rendered to the Government, shall not be
deemed an infringement of the privileges intended to be conferred by this Act
or the Special Act."
N. B., 1891, ch. 18, sec. 35 (3). Same as Ontario.
R. S. M., ch. 130, sec. 123. Same as Ontario.
ACCIDENTS, COMMISSIONS TO INVESTIGATE.
267. Every company shall, as soon as possible, and within Notice of ac-
- i r r cidents to be
forty-eight hours, at the furthest, after the occurrence upon thegjven>
railway belonging to such company, of any accident attended
with serious personal injury to any person using the same, or
whereby any bridge, culvert, viaduct or tunnel on or of the rail-
way hns been broken, or so damigedas to be impassable or unfit
for immediate use, will give notice thereof lo the (Minister), CO Penalty for
r. ..,-,, • • non-comph-
and every company which wilfully omits to give such notice ance.
shall forfeit to Her Majesty the sum of two hundred dollars for
every day during which the omission to give the same continues.
R. S. O., ch. 170, sec. 71. — (i) " Commissioner of Public Works."
R. S. Q., Art. 5198. — (i) " Railway Committee."
N. B., 1891, ch. 18, sec. 58. — Same as Ontario, adding " Chief " before
"Commissioner."
R. S. N. S., ch. 53, sec. 48. — (i) " Governor in Council."
268. The Governor in Council, on the recommendation ofCommjS;-ion-
the Minister, may appoint such person or persons as he thinks^t0°cddenU5
fit to be a commissioner or commissioners for inquiring into the
causes of and the circumstances connected with any accident or
casualty to life or property occurring on any railway, and into
all particulars relating thereto ; and such commissioner or com- Remuneration
missioners shall receive such remuneration for his or their ser-
vices as the Governor in Council determines.
269. The commissioner or commissioners shall report fully, Report.
in writing, to the Minister, his or their doings and opinions on
the matters respecting which he or they are appointed to inquire.
270. The remuneration of the commissioners and the fees Payment of
, ,, , -, c commissioners
and allowances to tne witnesses shall be paid out of any moneys ancj witnesses
provided by Parliament for unforeseen expenses.
cxx
THE RAILWAY LAW OF CANADA.
Cattle not to
near railway.
Such cattle
may be im-
pounded.
No right of
action in such
case.
CATTLE AT LARGE.
271- No horses, sheep, swine or o her cattle shall be per-
to be at large upon any highway, within half a mile of
the intersection of such highway with any railway at rail level,
unless such cattle are in charge of some person or persons, to
prevent their loitering or stopping on such highway at such in-
tersection ;
2. All cattle found at large contrary to the provisions of this
section may, by any person who finds the same at large, be im-
pounded in the pound nearest to the plice where the same are
so found, and the pound-keeper with whom the same are so
impounded shall detain the same in the like manner, and subject
to the like regulations as to the care and disposal thereof, as in
the case of cattle impounded for trespass on private property ;
3. If the cattle of any person, which are at large contrary to
the provisions of this section, are killed or injured by any train
at such point of intersection, he shall not have any right of
action against any company in respect of the same being so
killed or injured.
R. S. O., ch. 170, sees. 103, 104, 105.
R. S. Q., Art. 5156,5157, 5158.
R. S. N. S., ch. 53, sees. 76, 77, 78
No cattle to
be taken on
line*
Penalty.
C \TTLE NOT ALLOWED WITHIN FENCES — EXCEPTIONS.
272. Every person who rides, leads or drives any horse
or any other animal (or suffers any such horse or other animal
to enter upon such railway), (0 and within the fences and guards,
other than the farm crossings, without the consent of the company,
shall (on summary conviction) (2) be liable to a penalty not
exceeding forty dollars, and shall also pay to any person aggrieved
all damages sustained thereby.
R. S. O., ch. 170, sec. 30 (5). — (i) omitted, (2) omitted.
K. S. Q., Arts. 5171 (5). Same as Ontario.
R. S. M., ch. 130, sec. 36. Same as Ontario.
N. B., 1891, ch. 18, sec. 22 (5).
R. S. N. S., ch. 53, sec. 16 (4),
R. S. N. S., ch. 53, sec. 16 (5^1. Contains piovisions for enforcing preced-
ing provision?.
DOMINION AND PROVINCIAL RAILWAY ACTS. cxxi
NO PERSON TO WALK ON TRACK, ETC. — EXCEPTIONS.
273. Every person, not connected with the railway, or No person to
employed by the company, who walks along the track thereof, ^ c
except where the same is laid across or along a highway, is lia-
ble on summary conviction to a penalty not exceeding ten dollars ; Penalty.
2. Every person who enters upon any railway train without Wrongfully
the knowledge or consent of an officer or servant of the com-entenn& train>
pauy, with intent fraudulently to" be carried upon the said rail-
way without paying fare thereon, is liable, on summary convic-
tion, to a penally not exceeding ten dollars, or in default of pay- Penalty,
ment to imprisonment for a term not exceeding ten days ;
3. Any person charged with an offence under this section Person
shall be a competent witness on his own behalf.
competent
R. S. O.. ch. 170, sec. 30 (6). " No person other than those connected w'tness-
with or employed by the railway shall walk along the track thereof, except
where the same is laid across or along a highway." (a)
R. S. M., ch. 130, sec. 37. Same as Ontario, excepting (a) "and not
even then if the track be laid on a separate and distinct part of such highway,
and if it be so expressed or understood between the Company and the Muni-
cipal Council in whose territory such highway is comprised ; nor shall any
part of the said section be held to apply if the track be so laid."
R. S. Q., Art. 5171 (6). Same as Ontario.
N. B., 1891, ch. 18, sec. 22 (6). Same as Ontario-
R. S. N. S., ch. 53, sec. 16 (6). Same as Ontario.
274. If the (Railway Committee) (i) orders any company Foot passen-
to erect at or near or in lieu of any level crossing of a turnpike Sers to use
road, or other public highway, a foot bridge or foot bridges over provided
its railway, for the purpose of enabling persons passing on foot
along such turnpike road or public highway to cross the railway
by means of such bridge or bridges, — from and after the com-
pletion of such foot bridge or foot bridges so required to be
erected, and while the company keep the same in good and suf-
ficient repair, such level crossing shall not be used by foot pas-
sengers on the said turnpike road or public highway, except dur-
ing the time when the same is used for the passage of carriages,
carts, horses or cattle along the said road;
2. Every person who offends against the provisions of this Penalty for
section is liable, on summary conviction, to a penalty not exceed- contravention,
ing ten dollars.
CXXI1
THE RAILWAY LAW OF CANADA.
R, S. Q., Art. 5155. Same as Dominion, ist part ; and part omitted.
R. S. N. S., ch. 53, sec. 75. Same as Quebec, excepting (i) "Governor
in Council."
R.S.O.,ch. 170, sec. 102. Same as Quebec, excepting (i) " Commis-
sioner of Public Works."
N. B., 1891. ch. 18, sec. 82. Same as Quebec, excepting (i) "Chief Com-
missioner of Public Works."
Weeds to be
cut down.
Penalty for
non-compli-
ance.
Mayor, etc.,
may cause
work to be
done.
Application
of penalty.
WEEDS ON COMPANY S LAND TO BE CUT DOWN.
275. Every company shall cause all thistles and other
noxious weeds growing on the clear land or ground adjoining the
railway and belonging to such company to be cut down (early
in July in each year) (i) or to be rooted out ;
2. Every company which fails 10 comply with this section
shall incur a penalty of two dollars for every day during which
such company neglects to do anything w.hich it is so required to
do; and the mayor, reeve or chief officer of the municipality of
the township, county or district in which the land or ground lies,
or any justice of the peace therein, may cause all things to be
done which the said company is so required to do, and for ih;it
purpose may enter, by himself and his assistants or workmen,
upon such lands or grounds, and may recover the expenses and
charges incurred in so doing, and the said penalty, with costs,
in any court of competent jurisdiction, and such penalty shall
be paid to the proper officer of the municipality.
N. B., 1891, ch. 18, sec. 84 " Every railway company, whether any of
the clauses or provisions of this Act are or are not incorporated with the
Act incorporating the company, shall cause all cleared land or ground
adjoining their railway, and belonging to the Company, to bs (l) cleared of
all thistles, and other noxious weeds growing on the lands or grounds to be
cut down and kept constantly cut down, or to be rooted out of the same."
R. S. O., ch. 170, sec. 107. Same as New Brunswick, excepting (i)
" sown or laid down with grass or turf, and cause the same, as far as may be
in their power, to be covered with grass or turf, if not already so covered.
R. S. Q., Art. 5160. Same as Dominion, 1st part, excepting (i) " and
kept constantly cut down."
R. S. N. S., ch. 53, sec. 80. Same as Quebec.
N. B., 1891, ch. 18, sec. 84. If a railway company fails to comply with
the requirements of the last preceding section within twenty days after they
have been required to comply with the same, by notice from the mayor
(warden) (2) or chief officer of the municipality (3) in which the ground or
land lies, («) the Company shall incur a penalty of (ten dollars) (4) to the
use of the municipality, for each day during which they neglect to do any-
thing which they are lawfully required to do by the notice ; and the said
mayor (warden) (5) or chief officer, (6) may cause all things to be done which
the company were lawfully required to do by the notice, and for that pur-
pose may enter by himself and his assistants or workmen upon the lands or
DOMINION AND PROVINCIAL RAILWAY ACTS. cxxiii
grounds, and such municipality may recover the expenses and charges in-
curred in so doing, and the said penalty, with cos's of suit in any Court hav-
ing jurisdiction in civil cases, to the amount sought to be recovered.
R. S. O., ch. 170, sec. 108. Same as N. B., sec. 84, excepting (2)
" Reeve," (3) " of the township or county," (4) " two dollars," (5)
" Reeve."
R. S. Q., Art. 5161. Same as New Brunswick sec. 84, excepting (2)
omitted, (?) " of the township, county or parish," (a) " or from a justice of
the peace therein," (4) " two dollars," (6) " or justice of the peace."
R. S. N. S., ch. 53, sec. 81. Same as Quebec, excepting "district " for
" parish."
COMPANY MAY NOT PURCHASE RAILWAY SECURITIES.
276. No company shall, either directly or indirectly, Certain shares
employ any of its funds in the purchase of its own stock, or in^t*^^
the acquisition of any shares, bonds or other securities issued by dealt in.
any other railway company in Canada ; but this shall not affect Exceptions,
the powers or rights which any company in Canada now has or
possesses by virtue of any special Act to acquire, have or hold
the shares, bonds or other securities of any railway company
in the United States of America or Canada; nor shall it interfere
with the right conferred on the Northern Railway Company of
Canada, or the Hamilton & North Western Railway Company,
to acquire stock in the Northern & Pacific Junction Railway
Company, under the Acts relating to the said first named com-
panies, respectively, passed by the Par.iament of Canada in the
forty-seventh year of Her Majesty's reign.
R. S- O.,ch. 170, sec. 37 (7). " The funds of the company shall not be
emplo)ed in the purchase of any *>tock in their own or in any other company."
R. S. Q , Art. 5137 (6). Same as Ontario.
R. S. M., ch. 130, sec. 95. Same as Ontario.
N. B. , 1891, ch. 18, sec. 29 (7). Same as Ontario.
R. S. N. S., ch. 53, sec. 22 (6). Same as Ontario.
277. Every director of a railway company, who knowingly Penalty for
permits the funds of any such company to be applied in viola- vltion>
tion of the next preceding section, shall incur a penalty of one
thousand dollars for each such violation, — which penalty shall be
recoverable on information filed in the name of the Attorney
General of Canada ; and a moiety thereof shall belong t-> Her Application
Majesty, and the other moiety thereof shall belong to the in- r
former ; and the acquisition of each share, bond or other security,
or interest, as aforesaid, shall be deemed a separate violation of
the provisions aforesaid.
CXX1V
THE RAILWAY LAW OF CANADA.
Sale of rail-
way to a pur
chaser not
having neces
sary corpor-
ate powers.
Notice to the
Minister.
And copy of
deed of con-
veyance.
Until such
transmission
trains not to
be run.
Provisional
operation of
the railway.
License from
Minister.
SALE OF RAILWAY TO PURCHASER NOT HAVING CORPORATE
POWERS.
278. If, at any time, any railway or any section of any rail-
way is sold under the provisions of any deed of mortgage there-
of, or at the instance of the holders of any mortgage bonds or
debentures, for the payment of which any charge has been
created thereon, or under any other lawful proceeding, and is pur-
chased by any person or corporation which has not any corporate
powers authorizing the holding and operating thereof by such
purchaser, — the purchaser thereof shall transmit to the Minister,
within ten days from the date of such purchase, a notice in writ-
ing, stating the fact that such purchase has been made, describ-
ing the termini and line of route of the railway purchased, and
specifying the charter or Act of incorporation under which the
same had been constructed and operated, including a copy of
any writing, preliminary to a conveyance of such railway, which
has been made as evidence of such sale ; and immediately upon
the execution of any deed or conveyance of such railway, the
purchaser shall also transmit to the Minister a duplicate or an
authenticated copy of such deed, and shall furnish to the Minis-
ter, on request, any further details or information which he
requires.
279. Until the purchaser has given notice to the Minister in
manner and form as provided by the next preceding section, the
purchaser shall not run or operate the railway so purchased, or
take, exact or receive any tolls whatsoever in respect of any
traffic carried thereon ; but after the said conditions have been
complied with, the purchaser may continue, until the end of the
then next session of the Parliament of Canada, to operate such
railway and to take and rtceive such tolls thereon as the com-
pany previously owning and operating the same was authorized
to take, and shall be subject, in so far as they can be made appli-
cable, to the terms and conditions of the charter or Act of in-
corporation of the said company, until he has received a letter
of license from the Minister — which letter the Minister is hereby
authorized to grant — defining the terms and conditions on which
such railway shall be run by such purchaser during the said
period.
DOMINION AND PROVINCIAL RAILWAY ACTS. cxxv
280. Such purchaser shall apply to the Parliament of Canada Applicatiin
at the next following session thereof after the purchase of such
railway, for an Act of incorporation or other legislative authority,
to hold, operate and run such railway ; and if such application is
made to Parliament and is unsuccessful, the Minister may extend Extension of
the license to such railway until the end of the then next follow- licence>
ing session of Parliament, and no longer ; and if during such ex- Final action,
tended period the purchaser does not obtain such Act of incor-
poration or other legislative authority, such railway shall be
closed or otherwise dealt with by the Minister, as is determined
by the Railway Committee.
RAILWAY CONSTABLES.
281. (Any two justices of the peace, or a stipendiary or Appointment
police magistrate, in the Provinces of Ontario, Nova Scotia,
New Brunswick, British Columbia, Prince Edward Island, or
Manitoba, or the District of Keewatin, and any judge of the
Court of Queen's Bench or Superior Court, or clerk of the peace,
or clerk of the Crown, or judge of the sessions of the peace, in
the Province of Quebec, and any judge of the Supreme Court, or
two justices of the peace, in the North-West Territories, and any
Commissioner of Parish Court in the Province of New Brun-
swick) (i) on the application of the directors of any company
whose railway passes within the local jurisdiction of such justices
of the peace (magistrate, commissioner, judge, clerk, or judge of
the sessions of the peace, as the case may be), (2) or on the
application of any clerk or agent of such company thereto
authorized by such directors, may, in their or his discretion,
appoint any persons recommended for that purpose by such
directors, clerk or agent, to act as constables on and along such
railway ; and every person so appointed shall take an oath orQath to be
make a solemn declaration in the form or to the effect following, ta-ken-
that is to say : —
" I, A. B., having been appointed a constable to act upon Form of oath.
" and along (here name the railway), under the provisions of
" ' The Railway Act, ' (3) do swear that I will well and truly
" serve Our Sovereign Lady the Queen in the said office of
" constable, without favor or affection, malice or ill-will, and
CXXV1
THE RAILWAY LAW OF CANADA.
By whom to
he adminis-
tered.
Powers of
such con-
stable.
General
powers.
" that I will, to the best of my power, cause the peace to be
" kept, and prevent all offences against the peace ; and that,
" while I continue to hold the said office, I will, to the best
" of my skill and knowledge, discharge the duties thereof,
" faithfully, according to law. So help me God."
R. S. O., ch. 170, sec. 8 1 (i). — (i) " The Justices of the Peace for any
county assembled at any general sessions of the Peace," (2) omitted, (3)
" of Ontario."
R. S. Q., Art. 5208.— (i) " any Judge of the Court of Q. B. or of the
S. C. or clerk of the Court, or clerk of the peace, or clerk of the Crown, or
judge of sessions of the peace," (2) "judge, clerk, or judge of the sessions
of the peace," (3) " here insert the title of tjiis section."
(Such oath or declaration shall be administered in either
of ihe Provinces of Ontario, Nova Scotia, New Brunswick,
British Columbia, Prince Edward Island, or Manitoba, or in the
District of Keewatin, by any one justice of the peace, and in the
Province of Quebec by any such judge, clerk, or judge of the
sessions of the peace, and in the North-West Territories by any
such judge or by any one justice of the peace) (i) and every
constable so appointed, who has taken such oath or made such
declaration, may act as a constable for the preservation of the
peace, and for the security of persons and property against
felonies and other unlawful acts on such railway, and on any of
the works belonging thereto, — and on and about any trains, roads,
wharves, quays, landing places, warehouses, lands and premises
belonging to such company, whether the same are in the county,
city (town, parish), (2) district or other local jurisdiction within
which he was appointed, or in any other place through which
such railway passes or in which the same terminates, or through
or to which any railway passes which is worked or leased by such
company, — and in all places not more than a quarter of a mile
distant from such railway, — and shall have all such powers, pro-
tections and privileges for the apprehending of offenders, as well
by night as by day, and for doing all things for the prevention,
discovery and prosecution of felonies and other offences, and for
keeping the peace, which any constable duly appointed has within
his constablewick.
R. S. O., ch. 170, sec. Si (2). — (i) "such oath or declaration shall be
administered by any one such Justice."
R. S. Q., Art. 5208 (2). — (i) "such oath or declaration shall be ad-
ministered by any such judge, clerk, or judge of the sessions of the peace."
DOMINION AND PROVINCIAL RAILWAY ACTS. cxxvii
R. S.O., ch. 170, sec. 82.— (2) omitted.
R. S. Q., Art. 5208 (2). Same as Dominion.
R. S. N. S., ch. 53, sec. 95 (2). — (i) " And such oath or declaration shall
be administered by any such warden or justice of the peace.
283. Any such constable may take such persons as are Arrest of
punishable by summary conviction for any offence against the
provisions of this Act, or of any of the Acts or by-laws affecting
the railway, before any justice or justices appointed for any
county, city, town, parish, district or other local jurisdiction
within which such railway passes ; and every such justice may
deal with all such cases, as though the offence had been com-
mitted and the persons taken within the limits of his own local
jurisdiction.
R. S. O.,ch. 170, sec. 83.
R. S. Q., Art. 5208.
R..S. N. S., ch. 53, sec. 59 (2).
284. Any i wo justices of the peace (or a. stipendiary of police Dismissal of
magistrate, in either of the Provinces of Ontario, Nova Scotia, cons
New Brunswick, British Columbia, Prince Edward Island, or
Manitoba, or in the District of Keewatin, and any judge of the
Court of Queen's Bench or Superior Court, or clerk of the peace
or clerk of the Crown, or judge of the sessions of the peace, in
the Province of Quebec, and any judge of the Supreme Court,
or two justices of ihe peace in the North-West Territories) (i)
may dismiss any such constable who is acting within their
several jurisdictions ; and the directors of such company, or
any clerk or agent of such company thereto authorized by
such directors, may dismiss any such constable who is act-
ing on such railway ; and upon every such dismissal, all powers, Effect of dis-
protections and privileges which belonged to any such per- missal-
son by reason of such appointment shall -wholly cease; and
no person so dismissed shall be again appointed or act as con-
stable for such railway, without the consent of the authority by
whom he was dismissed.
R. S. O., ch. 170, sec. 84. — (i) omitted.
R. S. Q., Art. 5208 (3). — (i) "' Any judge of the Court of Queen's Bench, or
of the superior court, or clerk of the peace, or clerk of the Crown, or judge
of the sessions of the peace " — " any two Justices of the Peace " omitted.
R. S. N. S.,ch. 53, sec. 59 (3). Substitute "any warden of the munici-
pality or any justice of the peace," for first sight lines of sec. 284 Dom. Act,
remainder the same as Dominion.
CXXV111
THE RAILWAY LAW OF CANADA.
Record of ap- 285. Every such company shall cause to be recorded in the
office of tlie clerk of the (Peace)>(<0 for every county (city, town,
parish, district) (i) or other local jurisdiction wherein such rail-
way passes, tl e name and designation of every constable so
appointed at its instance, the date of his appointment, and the
authority making it, and also the fact of every dismissal of any
such constable, the date thereof, and the authority making the
same, within one week after ;he date of such appointment or dis-
missal, as the case may be ; and such clerk of the peace shall
keep such record in such form as the (Minister) (2) from time to
time din-els, in a book which shall be open to public inspection,
charging such fee as the (Minister) (3) from time to time,
authorizes.
R. S. O., ch. 170, sec. 85. — (i) Omitted, '(2) " Lieutenant-Guvernor in
Council," (3) " Lieutenant-Governor in Council."
R. S. Q., Art. 5208 (4).— (2) (3) '•' Railway Committee."
R. S. N. S., ch. 53, sec. 59 (4). — (2) (3) "Governor in Council." (tf)
" Municipality."
Punishment
of constable
guilty of
neglect of
duty.
286. Every such constable who is guilty of any neglect or
breach of duty in his office of constable shall be liable, on sum-
mary conviction thereof, within any county, city, district or other
local jurisdiction wherein such railway passes, to a penalty not
exceeding eighty dollars, or to imprisonment, with or without
hard labor, for a term not exceeding two months, (i") Such
penalty may be deducted from any salary due to such offender,
if such constable is in receipt of a salary from the company.
R. S. O.,ch. 170, sec. 86.
R. S. Q., Art. 5208 (5). — (i) " in the gaol of such county, city, district or
other local jurisdiction."
R. S. Is. S., ch. 53, sec. 59 (5).
LIMITATION OF ACTIONS FOR DAMAGES — GENERAL ISSUE.
287. All actions or suits for indemnity for any damages or
injury sustained by reason of the railway shall be commenced
within (one year) (i) next after the time when such supposed
damage is sustained, or if there is continuation of damage, within
(one year) (2) next after the doing or committing of such damage
What may be ceases, and not afterwards ; and the defendants may plead (the
pleaded. general issue) (3) and give this Act and the special Act and the
special matter in evidence at any irial to be had thereupon, and
may prove that the same was^done'in pursuance of and by the
authority of this Act or of the special Act.
Limitation of
actions for
damages.
DOMINION AND PROVINCIAL RAILWAY ACTS. cxxix
R. S. O., ch. 170, sec. 42 (i). — (i) " six months," (2) "six months,"
(3) •' not guilty by statute."
R. S. Q., Art. 5175 (i). Same as Dominion, omitting " or if there is con-
tinuation of damage within one year next after the doing or committing of
such damage ceases, and not afterwards."
R. S. M., ch. 130, sec. 116. — (I) "six months," (2) " six months."
N. B., 1891, ch. 18, sec. 33. Same as Dominion, excepting (3) "not
guilty by statute."
R. S. N. S., ch. 53, sec. 26 (i) — (I) "six months," (2) "six months,"
(3) omitting "the general issue, and give."
COMPANY NOT RELIEVED FROM LEGAL LIABILITY BY INSPECTION
OR ANYTHING DONE HEREUNDER.
288. No inspection had under this Act, and nothing in this Inspection,
Act contained, and nothing done or ordered or omitted to be et(r: • not to
° relieve com-
done or ordered, under or by virtue of the provisions of this Act, pany from
shall relieve, or be construed to relieve, any company of or from liabllity.
any liability or responsibility resting upon it by law, either
towards Her Majesty (or towards any person) (£) or the wife or
husband, parent or child, executor or administrator, tutor or
curator, heir or personal representative of any person, for any-
thing done or omitted to be done by such company, or for any
wrongful act, neglect or default (misfeasance, malfeasance or
nonfeasance) (#) of such company, or in any manner or way to
lessen such liability or responsibility, or in any way to weaken or
diminish the liability or responsibility of any such company,
under the (laws in force in the Province in which such liability or
responsibility arises), (i)
R. S. O., ch. 170, sec. 68. — (i) " existing laws of the Province."
R. S. Q , Art. 5199. — (a) omitted, (i) " laws in force in this Province."
N. B., 1891, ch. 18, sec. 55. — (b) omitted, (i) " laws existing in this
Province."
R. S. N. S., ch. 53, sec. 51. Same as Dominion.
OFFENCES AND PENALTIES.
289. Every company, director or officer doing, causing or per- Liability of
mittingto be done, any matter, act or thing contrary to the pro-?ompany>etc<>
J } m cases
visions of this or the special Act, or to the orders or directions of specified,
the Governor in Council, or of the Railway Com mittee or Min-
ister made hereunder, or omitting to do any matter, act or thing
required to be done on the part of any such company, director or
officer, is liable to any person injured thereby for the full amount
of damages sustained by such act or omission ; and if no other Penalty.
i
cxxx THE RAILWAY LAW OF CANADA.
penalty is in this or the special Act provided for any such act or
omission, is liable, for each offence, to a penalty of not less than
twenty dollars, and not more than five thousand dollars, in the
discretion of the court before'which the same is recoverable ;
Application 2. This section shall only apply to companies and directors
of this section. an(} officers of companies within the legislative authority of the
Parliament of Canada.
Damages for 29O. Every person from whom any company exacts any un-
extortionate just or extortionate toll, rate or charge shall, in addition to the
amount so unjustly exacted, be entitled to recover from the
company as damages an amount equal to three times the amount
so unjustly exacted.
Penalty for 291. Every officer or servant of any company, or any person
placing bag- emp}Oye(j by j^ who directs or knowingly permits any baggage,
rear of pas- freight, merchandise or lumber car to be placed in the rear of the
senger cars, passenger cars, is guilty of a misdemeanor.
R. S. M., ch. 131, sec. 36.
Intoxication a 292. Every person who is intoxicated while he is in charge
lor> of a locomotive engine, or acting as the conductor of a car or
train of cars (is guilty of a misdemeanor), (i)
R. S. Q., Art. 5173 (n). — (i) " shall be liable to a fine of not less than
twenty-five or more than one hundred dollars."
Penalty for 293. Every person who sells, gives or barters any spirituous
selling liquor or intoxicating liquor to or with any servant or employee of any
to employees. , ., , . ,. . ' . .
company, while on duty, is liable on summary conviction to a
penalty not exceeding fifty dollars, or to imprisonment with or
without hard labor for a period not exceeding one month, or to
both.
Punishment 294. Every officer or servant of, and every person employed
for violation j^ ^g company, who wilfully or negligently violates any by-law,
laws. rule or regulation of the company lawfully made and enforced, or
any order or notice of the Railway Committee (or of the Minis-
ter), (a} or of an inspecting engineer, of which a copy has been
delivered to him, or which has been posted up or open to his
inspection in some place where his work or his duties, or any of
them, are to be performed, if such violation causes injury to any
DOMINION AND PROVINCIAL RAILWAY ACTS. cxxxi
person or to any property, or exposes any person or any pro- If injury is
perty to the risk of injury, or renders such risk greater than it ofj- Jjn_
would have been without such violation, although no actual creased,
injury occurs (is guilty of a misdemeanor, and shall, in the dis-
cretion i the court before which the conviction is had, and ac-
cording as such court considers the offence proved to be more or
less grave, or the injury or risk of injury to person or property
to be more or less great, be punished by fine or imprisonment,
or both ; but no such fine shall exceed four hundred dollars, and Penalty limit-
no such imprisonment shall exceed the term of five years), (i)
R. S. Q., Art. 5216. — (l) "the person convicted of such contravention
shall, in the discretion of the court before whom the conviction is had, be
punished by fine or imprisonment, so that no such fine exceeds $400 nor any
such imprisonment the term of five years." («) omitting.
295. The company may, in all cases under (the next pre- Deduction of
ceding section), (i) pay the amount of the penalty and costs, and Penalty from
•" ^ ' r J t- j wages, or re-
recover the same from the offender or deduct it from his salary covery.
or pay .
R. S. O., ch. 170, sec. uo.— (i) " this Act, or under the Railway Act of
Canada."
R. S. Q., Art. 5219. — (i) " the three next preceding articles."
296. Every person who wilfully orjnegligently violates any by- Penalty for
law, rule or regulation of the company is liable, on summary con- ^°J\£^f ^lc
viction, for each offence, to a penalty not exceeding the amount generally,
therein prescribed, or if no amount is so prescribed, to a penalty
not exceeding twenty dollars; but no such person shall be con- Exception,
victed of any such offence, unless at the time of the commission
thereof a printed copy of such by-law, rule or regulation was
openly affixed to a conspicuous part of the station at which the
offender entered the train or at or near which the offence was
Gommitted.
297- Every person who, —
(a) Bores, pierces, cuts, opens or otherwise injures any cask, Punishment
box or package, which contains wine, spirits or other liquors, orofPersons
11 r i • cutting or
any case, box, sack, wrapper, package or roll of goods, m, on orborjng casks
about any car, wagon, boat, vessel, warehouse, station house, or packages,
wharf, quay, or premises of, or which belong to any company,
with intent feloniously to steal or otherwise unlawfully to obtain
or to injure the contents, or any part thereof; or, —
THE RAILWAY LAW OK CANADA.
Drinking or
wasting
liquor.
Penalty.
Interpreta-
tion ; ' ' con
pany."
Annual re-
turns to be
prepared.
How attested
(£) Unlawfully drinks or wilfully spills or allows to run to waste
any such liquors, or any part thereof, —
Is liable, on summary conviction, (i) to a penalty not exceed-
ing twenty dollars over and above the value of the goods or
liquors so taken or destroyed, or to imprisonment with or without
hard labor for a term not exceeding one month (or to both). (2)
R. S. Q., Art. 5214. — (i) " before one or more justices of the peace," (2)
omitted.
STATISTICS.
What period
to be includ-
ed.
Duplicate for
the Minister.
298. In (the following sections of this Act down to section
three hundred and five inclusive, unless the context otherwise re-
quires), (i) the expression "company " means a company (2) con-
structing or operating a line of railway in (Canada, whether other-
wise within the legislative authority of the Parliament of Canada
or not), (3) and includes any individual or individuals not incor-
porated, who are owners or lessees of a railway in (Canada) (4)
or parties to an agreement for working a railway in (Canada). (5)
R. S. Q., Art. 5177. — (i) "this subsection," (2) "incorporated either
before or after the coming into force of these Revised Statutes for the purpose
of," (3) " this province," (4) " the said province," (5) " the same."
299. Every company shall annually prepare returns in
accordance with the forms contained in schedule one to this
Act, of its capital, traffic and working expenditure, and of
all information required, as indicated in the said form, to
be furnished to the Minister ; and such returns shall be dated
and signed by, and attested upon the oath of the secretary, or
some other chief officer of the company, and of the president,
or, in his absence, of the vice-president or manager of the com-
pany ;
2. Sucli returns shall be made for the period included irom the
date to which the then last yearly returns made by the company
extended, or from the commencement of the operation of the rail-
way, if no such returnsfhave been previously made, and, in either
case, down to the last day of June in the then current year ;
3. A duplicate copy of such returns, dated, signed and at-
tested in manner aforesaid, shall be forwarded by such company
to the Minister within three months after the first day of July in
each year ;
DOMINION AND PROVINCIAL RAILWAY ACTS, cxxxiii
4. The company shall also, in addition to the information re- Further re-
quired to be furnished to the Minister, as indicated in the said r"' ^sir^d e
schedule one, furnish such other information and returns as
are, from time to time, required by the Minister ;
5. Every company which makes default in forwarding such Penalty for
. ' • i , • • r i • • i 11 non-compli-
returns in accordance with the provisions of this section shall ance<
incur a penalty not exceeding ten dollars for every day during
which such default continues ;
6. The Minister shall lay before both Houses of Parliament, Returns to be
within twenty-one days from the commencement of each session ^ubmltted to
thereof, the returns made and forwarded to him in pursuance of
this section.
R. S. O., ch. 170, sec. 44 (6). "After the opening of the railway, or
any part thereof, to the public, and within the first fifteen days after the open-
ing of each session of the Legislature, an account shall be annually trans-
mitted to the (Provincial Secretary) (a) containing a detailed and particular
account, attested upon oath of the president, or, in his absence, of the vice-
president, of the moneys received and expended by the company, and a
classified statement of the passengers and goods transported by them, with
an attested copy of the last annual statement."
R. S. Q., Art. 5176 (4). Same as Ontario, excepting'(a) " three branches
thereof."
R. S. Q., Art. 5178. "Every company shall annually prepare returns
of their capital, in accordance with the form of Schedule A of this section,
and a copy of such returns, signed by the president or other head officer of
the company resident in the Province, and by the officer of the company
responsible lor the correctness of such returns, or any part thereof, shall be
forwarded by the company to the Commissioner of Public Works, not later
than (three) (b~) months after the end of the calendar year ; together with a
copy of the then last annual return of the traffic and working expenditure,
which every such company is required to keep, in accordance with the pro-
visions of their respective charters of incorporation, to be verified in manner
and form aforesaid, aud furnished (<r) in such form as the said Commissioner
shall approve of or preset ibe.
" Any company which fails to forward the said returns in accordance with
the provisions of this Article shall be liable to a penalty not exceeding (ten
dollars) (d) for every day during which such default continues."
R. S. M., ch. 130, sec. 125. Same as Ontario, sec. 44 (6), excepting (a)
" Railway Commissioner for Manitoba."
N. B., 1891, ch. 18, sec. 35 (6). Same as Ontario, sec. 44 (6).
R. S. iV S., ch. 53, sec. 29. Same as Quebec, Art. 5178, excepting (b)
"two," (c) "according to form shown in schedule 2 of this chapter or/' (d)
" fifty."
3OO. Every company shall, weekly, prepare returns of its Weekly re-
traffic for the next preceding seven days, in accordance with the turns to be
• i N^N ,• i /.prepared and
form contained in schedule (two) (i) to this Act, and a copy of transmitted.
such returns, signed by the officer of the company responsible
CXXX1V
THE RAILWAY LAW OF CANADA.
Copy to be
posted up.
Penalty for
non-compli-
ance.
Penalty for
signing false
return .
Return of
accidents to
be made.
Cause and
nature.
Locality and
time.
Extent and
particulars.
Copies of by
laws.
for the correctness of such returns, shall be forwarded by the
company to the (Minister) (2) within seven days (from the day
in each week up to which the said returns have been prepared),
(3) and another copy^of each of such returns, signed by the
same officer, shall be posted up by the company within the same
delay, and kept posted up for seven days, in some conspicuous
place in the most public room in the head office of the com-
pany in (Canada), (4) and so that the same can be perused by
all persons ; and free access thereto shall be allowed to all per-
sons during the usual hours of business at such office, on each
day of the said seven days not being a Sunday or holiday ;
2. Every company which makes default in forwarding the
said weekly returns to the (Minister), (5) or which fails to post
up and keep posted up a copy thereof as- aforesaid, and to allow
free access thereto as aforesaid, shall incur a penalty not exceed-
ing ten dollars for every day during which such default con-
tinues.
R. S. Q., Art. 5179.— (i) "B," (2) " Commissioner," (3) omitted, (4)
" the Province," (5) "Commissioner."
301. Every person who, knowing the same to be false in any
particular, signs any return required by the two sections next
preceding (is guilty of a misdemeanor), (i)
R. S. N. S., ch. 53, sec. 31 (i). — (i) " shall be liable, on conviction thereof,
to a penalty not to exceed two hundred and fifty dollars."
302. Every company shall, within (one month) (i) after the
first days of January and July, in each and every year, make to
the (Railway Committee), (2) under the oath of the president,
secretary or superintendent of the company, a true and particu-
lar return of all accidents and casualties, whether to life or pro-
perty, which have occurred on the railway of the company during
the half year next preceding each of the said periods respectively,
setting forth, —
(a) The causes and natures of such accidents and casualties ;
(b) The points at which they occurred, and whether by night
or by day ;
(c) The full extent thereof, and all the particulars of the same ;
And shall, also, at the same time, return a true copy of the
existing by-laws of the company, and of its rules and regulations
for the management of the company and of its railway.
DOMINION AND PROVINCIAL RAILWAY ACTS. cxxxv
R. S. O., ch. 170, sec. 72. — (i) "ten days," (2) " Commissioner of Pub-
lic Works."
R. S. Q., Art. 5202. Same as Dominion.
N. B., 1891, ch. 18, sec. 59. — (I) "ten days," (2) "Chief Commissioner of
Public Works."
R. S. N, S , ch. 53, sec. 54. — (2) "Governor in Council."
303. The (Minister) (i) may order and direct, from time to Form of re-
time, the form in which such returns shall be made up, and
order and direct any company to make up and deliver to (the
Minister), (2) from time to time, in addition to the said periodical
returns, returns of serious accidents occurring in the course of
the public traffic upon the railway belonging to such company,
whether attended with personal injury or not, in such form and
manner as the (Minister) (3) deems necessary and requires for
his information with a view to the public safety.
R. S. O-, ch. 170, sec. 73. — (i) "Commissioner of Public Works," (2)
"him," (3) "Commissioner."
R. S. Q., Art. 5203.— (i) "Railway Committee," (2) "them," (3)
"Committee."
N. B., 1891, ch. 18, sec. 60. — (i) "Chief Commissioner of Public
Works," (2) "him," (3) "Chief Commissioner."
R. S. N. S., ch. 53, sec. 55.~(i) "Governor in Council," (2) "them,"
(3) •'' Governor in Council."
304. If the returns required under the two sections next pre- Penalty for
ceding, so verified, are not delivered within the respective times n.ot transmit-
ting return.
m the said sections prescribed, or within fourteen days after the
same have been so required by the (Minister),|(i) every company
which makes default in so doing shall forfeit to Her Majesty the
sum of one hundred dollars for every day during which the com-
pany neglects to deliver the same.
R. S. O., ch. 170, sec. 74. — (i) " Commissioner."
R. S. Q., Arts. 5204. — (i) " Committee."
N. B., 1891, ch. 18, sec. 6l.— (i) "Chief Commissioner."
R. S. N. S., ch. 53, sec. 56.— (i) " Governor-in-Council."
3O5- All (i) returns (made in pursuance of any of the provi- Returns
sions of the seven sections of this Act next preceding) (2) shall be P"vilese.d
.... . . . , . ' commumca-
pnvileged communications and shall not be evidence in any court tions.
whatsoever.
R. S. O., ch. 170, sec. 75. (i) " such," (2) omitted.
R. S. Q., Art. 5205 and 5181. Same as Ontario.
N. B., 1891, ch. 18, sec. 62. Same as Ontario.
R. S. N. S., ch. 53, sec. 57. Same as Ontario.
CXXXV1
THE RAILWAY LAW OF CANADA.
Certain rail-
ed^o be01""
works for
CERTAIN RAILWAYS DECLARED WORKS FOR GENERAL ADVANTAGE
OF CANADA.
3O6. The Intercolonial Railway, the Grand Trunk Railway,
the North Shore Railway, the Northern Railway, the Hamilton
& North-Western Railway, the Canada Southern Railway, the
°f Great Western Railway, the Credit Valley Railway, the Ontario
& Quebec Railway, and the Canadian Pacific Railway, are
hereby declared to be works for the general advantage of Canada,
and each and every branch line or railway now or hereafter con-
necting with or crossing the said lines of railway, or any of them,
Js a work'for the general advantage of Canada.
To be subject 3O7. Every such railway and branch line shall hereafter be
authority of subject to the legislative authority of the Parliament of Canada;
Parliament, but the provisions of any Act of the Legislature of any Province
of Canada, jpassed prior to the twenty-fifth day of May, one thou-
sand eight hundred and eighty-three, relating to any such rail-
way or branch line, and in force at that date, shall remain in force
so far as they are consistent with any Act of the Parliament of
Canada passed after that date.
Statutes of Can., 1893, 56 Vic., ch. 27, sec. 3. The electric railway, for the
construction and operation of which power was given to the Niagara Falls
Park 61 River Railway Company by the Act of the Legislature of Ontario,
fifty-fifth Victoria, chapter ninety-six, is hereby declared not to be affected by
sections three hundred and six and three hundred and seven of '1 he Railway
Act, so long as the said railway is operated by electricity ; and it is hereby fur-
ther declared and enacted that the said electric railway shall not be deemed to
be affected by any Act respecting railways hereafter passed, unless such Act
is in express terms declared to extend thereto.
Certain Acts
of Provincial
Legislatures
may be con-
firmed.
Effect of such
confirmation .
308. The Governor-General may, at any time and from time
to time, by proclamation or proclamations, confirm any one or
more of the Acts of the Legislature of any Province of Canada,
passed before the passing of this Act, relating to any railway
which, by any Act of the Parliament of Canada, has been declared
to be a work for the general advantage of Canada, and from and
after the date of any such proclamation the Act or Acts thereby
declared to be confirmed shall be confirmed, ratified and made
as valid and effectual as if the same had been duly enacted by
the Parliament of Canada. All acts, matters and things which
have been or may hereafter be done under any Act which may
DOMINION AND PROVINCIAL RAILWAY ACTS, cxxxvii
be so confirmed by proclamation, and which might lawfully have
been done if such Act or Acts which shall be so confirmed by
proclamation had been within the competence of the respective
legislatures by which the same were adopted, shall be ratified
and confirmed, and made as good and valid as if such Act or
Acts had, at the several dates at which the same purport respec-
tively to have come into force, been enacted by the Parliament
of Canada.
REPEAL.
3O9. This Act shall be substituted for the Revised Statutes, Repeal, R.S.
chapter one hundred and nine, which with the Act fifty and fifty- ' ' °j ^9 '
one Victoria, chapter nineteen, intituled "An Act to amend thec. 19.
Railway Act," is hereby repealed.
SCHEDULE ONE.
Form of yearly returns to the Minister of Railways and Canals,
required from railway companies under " The Railway Act."
RETURNS made by the (corporate name of the Company') in pur-
suance of" The Railway Act," for the period included between
the (insert the day to which the last returns extend, or the date
of the commencement of operations, as the case may be), to the
last day of June, in the year 18
LOCATION AND GENERAL DESCRIPTION OF RAILWAY.
Showing the county or counties through ivhich the railway runs,
the terminal points, connections, if any, and giving a general
description of the line and the country through which it passes.
Statement containing copies of all contracts made by the Com-
pany, for the construction of any part of the railway.
CXXXV111
THE RAILWAY LAW OF CANADA.
RETURNS of the Capital Account of the said Railway, and the
Revenue and Expenditure, etc.
No. i. — CAPITAL ACCOUNT.
jh
a N
<
73
•sg
c/5'5
a.
12
'c3
fc
*s gfH
2%%
«ies
• £°
Total amount
do
do
do
do
do
of ordinary share capital . .
of preference share capital,
do
do
do
of ordinary bonds
$ CtF.
$ cts.
$ cts.
$ cts.
do
do
.
do
do
do
do
do
do
do
of Government loans
do
do
do
do
do bonuses . .
do subscription
to shares,
do subsciiption
to bonds,
of municipal loans
do
do
do bonuses
do subsciiption to
shares
do
do subscription to
bonds ......
do
from other sources. ...
Total capital
'State whether dividend is cumulative or not.
This statement must agree with the totals shown in the
report of the company, a copy of which is to be transmitted also.
If there are more issues of preference shares or bonds than one,
state them, and the amount of each class.
If any floating debt exists it must be stated; so as to make the
total agree with the published report.
DOMINION AND PROVINCIAL RAILWAY ACTS, cxxxix
No. 2. — LOANS OR BONUSES FROM GOVERNMENTS OR MUNICI-
PALITIES.
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P<
03
CO
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$ cts.
$ cts.
$ cts.
$ cts.
$ cts.
$ cts.
Governments... .
Total
Municipalities... .
Total
No. 3. — BONDS OR OTHER SECURITIES NEGOTIATED BY THE
COMPANY.
Amounts.
Rate of Interest.
Date of Sale.
Prices Realized.
$ cts.
$ cts.
$ cts.
$ cts.
No. 4. — SALES OF LAND MADE BY THE COMPANY.
Acres
Sold.
Price per Acre.
Amount.
$ cts. $ cts.
No. 5. — FLOATING DEBT.
Amount.
Rate of Interest.
Remarks.
$ cts.
$ cts.
cxl THE RAILWAY LAW OF CANADA.
No. 6.— CHARACTERISTICS OF ROAD, ETC.
OWNED.
Miles.
*Length of mainline from to
do branch from to
do do to
do do to
do do to
LEASED.
Length of railway from to
do do to
do do to
do do to
Total mileage worked
Length of road laid with iron rails
do do steel rails ....
do of sidings
do of double track (if any)
Weight of rail per yard, main line, iron Lbs.
do do do steel ('o
do do branches, iron do
do do do steel do
Number of engine houses and shops
do of engines owned by Company
do do hired.....'
do of first-class passenger cars owned by Company
do do do hired
do of second-class and emigrant cars owned by Company...
do. do do hired
do of baggage, mail and express cars owned by Company...
do do do hired ,
Number of cattle and box freight cars owned by Company
do do do hired !
do of platform cars owned by Co npany
do do hired
do of coal cars owned by Company
do do hired
do of ties to mile, main line ,
do do branches
Nature of fastenings used r.o secure joint of rail
Number of grain elevators
t Capacity of do at
do " do
do do
Number of level road crossings at which watchmen are employed.
do do without watchmen
do of overhead bridges
Height of do above rail level
Number of level crossings of other railways
do of junctions with other railways
do do branch lines ,
.Radius of sharpest curve
Number of feet per mile of heaviest gradient ,
Gauge of railway
DOMINION AND PROVINCIAL RAILWAY ACTS.
cxli
No. 7. — ACTUAL COST OF RAILWAY AND ROLLING STOCK.
1. Cost of land and land damages $ cts.
2. Cost in connection with the administration of the Land Grant
in aid, if any.
3. Cost of grading, masonry and bridging, station buildings, etc..
4. Cost of rolling stock of all kinds, including workshops
Total
The above total to show the real cash cost of construction and rolling stock
* If the line, or any portion of it, is under construction, the length being
constructed to be given.
f State where these are situated, and the capacity of each.
No. 8. — OPERATIONS OF THE YEAR AND NUMBER OF MILES RUN.
1. Miles run by passenger trains
2. do freight trains
3. do mixed trains
4. Total miles run by trains
5. do engines
6. Total number of passengers carried.
7. do tons of freight (of 2,000 Ibs. carried)
8. Average rate of speed of passenger trains ....
9. do freight trains
10. Average weight of passenger trains in motion.
11. do freight trains in motion. .
No. 9. — DESCRIPTION OF FREIGHT CARRIED.
Weight in
Tons.
1 . Flour in barrels, No
2. Grain in bushels> No
3. Live stock, No
4. Lumber of all kinds, excepting firewood, ft
5. Firewood, number of cords of 128 cubic ft
6. Manufactured goods
7. All other articles
Total weight carried
No. 10. — EARNINGS OF THE RAILWAY.
$ cts.
1. From passenger traffic
2. From freight traffic
3. From mails and express freight .
4. From other sources
Total..
cxlii
THE RAILWAY LAW OF CANADA.
No. ii.— GENERAL TARIFF OF TOLLS ESTABLISHED BY
THE COMPANY.
No. 12.— SPECIAL RATES OF TOLLS ESTABLISHED BY THE
COMPANY.
No. 13, A.— OPERATING EXPENSES— MAINTENANCE OF LINE,
BUILDINGS, ETC.
•
$ cts.
I. Wages, etc., of labor employed on track, including sidings
Total ....
No.
13,
B. — OPERATING EXPENSES — WORKING AND REPAIRS
OF ENGINES.
$ cts.
I . Wages of engineers, firemen and cleaners .
2. Cost of coal for fuel ...................
do wood do ...................
3. Repairs of engines and tenders ..........
4. Oil, tallow, waste, etc., for engines ......
5. Pumping engines ......................
6. Repairs of tools and machinery .........
7. Superintendence ....................
Total
DOMINION AND PROVINCIAL RAILWAY ACTS. cxliii
No. 13, C. — WORKING AND REPAIRS OK CARS.
$ cts.
1. Wages and materials for repairs of passenger cars.
2. do do do freight cars and snow
ploughs
3. Superintendence .
Total .
No. 13, D. — OPERATING EXPENSES — GENERAL AND OPERATING
CHARGES.
$ cts.
1. Office expenses, including directors, auditors, manage-
ment, travelling expenses, stationery, etc
2. Station agents, clerks, porters, etc
3. Conductors, baggagemen and brakemen
4. Compensation for personal injuries
5. Loss or damage to freight ,
6. Cattle killed
7. Cost of ferries and ferry-boats
8. Cost of foreign agencies
9. Small stores, including lights, lamps and signals
10. All other charges
II.
12.
'3-
Total
Blanks are left for any other items of expenditure not included above.
No. 14. — SUMMARY OF OPERATING EXPENSES.
$ cts.
A. Maintenance of line, buildings, etc
B. Cost of working and repairs to engines . .
C. do do cars .....
D. do general operating expenses
Total cost of operating railway .
The above statement to include the full cost of operating the railway,
and the total to correspond with the published return of the Company.
cxliv
THE RAILWAY LAW OF CANADA.
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DOMINION AND PROVINCIAL EAILWAY ACTS.
cxlv
No. 16. — NAMES AND RESIDENCES OF DIRECTORS AND
OFFICERS OF THE COMPANY.
Names of Directors.
Residence.
President .
Secretary and Treasurer. ..
General Manager .
Engineer ,
Superintendent. . .
t
The following is the official name and address of the Com-
pany : —
SCHEDULE TWO.
Railway of Canada.
RETURN of Traffic for the week ending 18
and the corresponding week, 18
Mails -,..
Date. Passengers. Freight and Live Stock, and Total.
Sundries.
18
18
Increase
Decrease
Aggregate Traffic from 18.
~ . Freight and Live Mails and — . , Miles
Date. Passengers. & c. , o i • lotal. ...
Stock. Sundries. Open.
18
18
AMENDMENTS TO QUEBEC STATUTES.
DEBTS OF SUBSIDIZED RAILWAYS, (i)
CAP. XXXVI.
An Act to amend the law respecting railways, with reference to
the payment of certain debts incurred in their construction
and to the sale of such railways in certain cases.
\_Assented to 2>]t/i February, 1893.]
HER MAJESTY, by and with the advice and consent of the
Legislature of Quebec, enacts as follows :
1. The following subsection is added after subsection 19 of
section twelfth of chapter third of title eleventh of the Revised
Statutes :
" ig#. Debts contracted during the construction of a railway.
" 5181 a. Every railway company, receiving subsidies from
the Government of this Province, every contractor or sub-con-
tractor, whether he be a chief contractor or sub-contractor of
such railway, who employ? foremen, workmen or laborers, by the
job or for a specified time to fulfil the contract, must keep a list
showing the names and wages or price allowed for the work of
such foremen, workmen and laborers ; and every payment to
them made must be attested by the signature or the mark of the
foreman, workman or laborer, affixed before a witness, who signs
the same.
It shall be lawful for any foreman, workman or
laborer, or any person who has supplied to such company, con-
(i) " By a recent judgment of Pagnuelo, J., of the Superior Court of Que-
bec, a sequestrator was appointed for the Bale des Chaleurs Ry. Co. under
this act. Leave has been granted to appeal from this decision. There may
be doubts as to the powers of the Quebec Legislature to enact the 2nd section
of this Act ; at least as regards railways under the jurisdiction of the Dominion
Parliament.
AMENDMENTS TO QUEBEC STATUTES. cxlvii
tractor or sub-contractor, or to any person for them, labor or
materials employed or to be employed in the construction of
such railway, or who has given or sold one or more rights of way,
to file in the office of the Commissioner of Public Works a claim
under oath, made in the form indicated in schedule B.
" From the moment such claim is fyled, the Commissioner of
Public Works may, in his discretion, retain, out of the subsidy
granted by the Legislature to the company, an amount sufficient
to cover the claim until satisfied, unless the company or persons
entitled to such subsidies consent to the payment of the claim by
the said Commissioner out of the amount of such subsidies.
" When the claim is contested, the said Commissioner keeps an
amount sufficient to pay the contested claim or claims until the
matter is finally settled by the courts or settled by private agree-
ment.
" 518 1^. Several unpaid foremen, workmen, laborers, sup-
pliers of materials, or persons who have sold one or more rights
of way, may join in the same claim.
" 5181V- The assignment of the subsidies made by the com-
pany, or the assignment by a contractor or sub-contractor of the
prices of work, in no wise affects the right conferred upon the
persons mentioned in article 5181^ to be paid out of the sub-
sidies."
2. The Act 54 Victoria, chapter 37, is repealed, and the fol-
lowing articles are added after article 5183 of the Revised Sta-
tutes :
" 5183d!. When a railway company, subsidized by the Pro-
vince, has become insolvent, and has not complied with the re-
quirements of its charter, as regards the commencement or com-
pletion of its works within the time specified, or does not con-
tinue and has become incapable of continuing the undertaking
or working of the road for more than thirty days, it shall be law-
ful for the Lieutenant-Governor in Council at any time, on the
report of the railway committee of the Executive Council,to au-
thorize the Commissioner of Public Works to cause the property
of the company, including the interests it may have in the said
road, to be sequestrated and sold.
cxlviii THE RAILWAY LAW OF CANADA.
. The sequestrator is appointed by the Superior
Court or by one of the judges of that court in and for the dis-
trict in which the company's head office in this Province is sit-
uated, upon a petition in the name of the Commissioner of Pub-
lic Works, not less than thirty days after the service of a copy
thereof at the head office of the company, together with a notice
stating the time and place at which it will be presented, and after
the publication of a notice to that effect in the Quebec Official
Gazette during such thirty days.
" The court or judge shall hear the shareholders and creditors
on the appointment of the sequestrator, but shall not be obliged
to follow their advice.
" 5183^. Such sequestrator has the same rights and is subject
to the same obligations as a sequestrator in ordinary matters,
and is subject to the summary jurisdiction of the court or judge.
" He may, at any time, be replaced, on the application of the
creditors or of the Commissioner of Public Works, by following
the same formalities as for his appointment.
' ' He takes possession of the road and of all the rolling stock ;
executes and continues the work of the road, at the expense and
in the name of the company ; executes, in the same manner, the
contracts and acquittances, receipts and other documents, and,
generally, performs all acts necessary for the construction, main-
tenance, administration and working of the railway until the
company in default, or another company, lawfully substituted in
the rights of the former, resumes and continues bona fide the ful-
filment of its obligations.
" He may, with the permission of the court or judge, take out
and defend any suits on behalf of the company.
" 5183^. If the company in default or any other company
does not resume the construction, maintenance, administration
and working of the road for the purpose of bona fide continuing
the same, and if the sequestrator has not the means at his dis-
posal for continuing them, on petition of the Commissioner of
Public Works, thirty days' notice whereof shall be served upon
the company by leaving a copy at its head office, with the indi-
cation of the time and place at which it will be presented, the
AMENDMENTS TO QUEBEC STATUTES. cxlix
court or judge may order the sheriff of the district to seize and
sell the road, immoveables used for the road and the rolling
stock ;
" 2. The sheriff executes this order, by following the same rules
as in the case of a writ de terris, and makes a return thereof to
the Superior Court ;
"3. All subsequent proceedings, including the distribution of
moneys, are had before the Superior Court, and are the same
and have the same effect as those relating to compulsory sale of
immoveables.
" 5183^. All proceedings instituted under the authority of
this subsection are summary, and the parties have precedence for
hearing over all other proceedings or cases."
3. This Act shall come into force on the day of its sanction.
(For form see next page?)
cl
THE RAILWAY LAW OF CANADA.
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AMENDMENTS TO QUEBEC STATUTES. cli
SCHEDULE B.
CLAIM OF FOREMAN, WORKMAN, LABORER, OR PERSON WHO HAS
SOLD RIGHTS OF WAY OR SUPPLIED MATERIALS (as the CdSC may
be) FILED IN THE OFFICE OF THE COMMISSIONER OF PUBLIC
WORKS.
To the Honorable the Commissioner of Public Works,
SIR,
In presence of the undersigned witness I (or we) (name of the
foreman, workman, etc., as the case may be) declare that A. B.
(name of the company, contractor or sub-contractor, as the case may
be} owes me (or us) a sum of $ for (indicate the na-
ture of the work, etc.*), at (place}, which sum the said A. B. (name
of the company, contractor or sub-contractor, as the case maybe),
refuses or neglects to pay me (or us).
Made at , this day of , 18
(Signed) E. F.
(Signature of workman or workmen?)
(Signed), G. H.,
Witness.
SEIZURE OF RAILWAYS.
57 Vic. (QuE.) CAP. XLVIII.
AN ACT TO AMEND THE CODE OF CIVIL PROCEDURE.
[Assented to %th January, 1894.]
HER MAJESTY, by and with advice and consent of the
Legislature of Quebec, enacts as follows :
1. Article 638 of the Code of Civil Procedure is amended by
adding the following clause to paragraph 3 thereof:
" If the property seized consists of a line of railway and its
accessories, and such line has not been cadastred in accordance
with article 5668 of the Revised Statutes, it is not necessary to
indicate the numbers of the immoveables traversed by such rail-
way, and it is sufficient if the name of the line and its terminal
points be mentioned, so that its identity may be established."
clii THE RAILWAY LAW OF CANADA.
2. Article 650 of the said Code is amended by adding thereto
the following clause :
" However, when the seizure of a line of railway traversing
several parishes or counties is concerned, such notice shall be
given by the secretary-treasurer of each municipality."
3. Article 671 of the said Code, as it is contained in article
5937 of the Revised Statutes, is amended by adding thereto the
following clause :
" Whenever the sale of a line of railway is concerned, such
sale must be made at the office of the sheriff entrusted with the
writ of execution."
4. Article 689 of the said Code is amended by adding the
following clause after paragraph 3 thereof :
" In case the immoveable property seized and sold is a line of
railway which is not cadastred, and the accessories thereof, it is
sufficient to mention in the description the name of such line
and its terminal points, so that its identity may be established."
5. This act shall come into force thirty days after its sanc-
tion.
CRIMINAL LAW AFFECTING RAILWAYS.
CANADA CRIMINAL CODE 1892.
Sec. 521. Criminal Breaches of Contract.
Every one is guilty of an indictable offence, and liable on
indictment or on summary conviction before two justices of the
peace, to a penalty not exceeding one hundred dollars, or to
three months' imprisonment, with or or without hard labor, who
(a) Wilfully breaks any contract made by him, knowing or
having reasonable cause to believe, that the probable conse-
quences of his so doing, either alone or in combination with
others, will be to endanger human life, or to cause serious bodily
injury, or to expose valuable property, whether real or personal,
to destruction or serious injury ; or
(<;) Being under any contract made by him with a railway
company, bound, agreeing or assuming to carry Her Majesty's
mails, or to carry passengers or freight, or with Her Majesty, or
anyone on behalf of Her Majesty, in connection with a govern-
ment railway, on which Her Majesty's mails, or passengers, or
freight are carried, wilful y breaks such contract, knowing, or
having reason to believe, that the probable consequences of his so
doing, either alone or in combination with others, will be to
delay or prevent the running of any locomotive engine, or tender,
or freight or passenger train or car, on the railway ;
3. Every railway company which, being bound, agreeing or
assuming to carry Her Majesty's mails, or to carry passengers or
freight, wilfully breaks any contract made by such railway
company, knowing or having reason to believe that the probable
consequences of its so doing will be to delay or prevent the
running of any locomotive engine or tender, or freight or
passenger train or car, on the railway, is liable to a penalty not
exceeding one hundred dollars ;
cliv THE RAILWAY LAW OF CANADA.
4. It is not material whether any offence defined in this section
is committed from malice conceived against the person , corpora-
tion, authority or company with which the contract is made or
otherwise.
Sec. 522. Posting up the Provisions of Law respecting
Criminal Breaches of Contract.
Every such company shall cause to be posted up at
the railway stations belonging to such company, a printed copy
of this and the preceding section in some conspicuous place,
where the same may be conveniently read by the public ; and as
often as such copy becomes defaced, obliterated or destroyed,
shall cause it to be renewed with all reasonable despatch ;
2. Every such company which makes default on complying
with such duty is liable to a penalty not exceeding twenty
dollars for every day during which such default continues ;
3. Every person unlawfully injuring, defacing or covering up
any such copy so posted up is liable, on summary conviction, to
a penalty not exceeding ten dollars.
Sec. 25O. Intentionally Endangering the Safety of
Persons on Railways.
Everyone is guilty of an indictable offence, and liable to impri-
sonment for life who unlawfully —
(«) With intent to injure or to endanger the safety of any
person travelling or being upon any railway :
(i) Puts or throws upon or across such railway any wood,
stone, or other matter or thing ;
(ii) Takes up, removes or displaces any rail, railway switch,
sleeper or other matter or thing, belonging to such railway, or
injures or destroys any track, bridge or fence of such railway, or
any portion thereof;
(iii) Turns, moves or diverts any point or other machinery
belonging to such railway ;
(iv) Makes or shows, hides or removes any signal or light upon
or near to such railway ;
CRIMINAL LAW AFFECTING RAILWAYS. civ
(v) Does or causes to be done any other matter or thing with
such intent ; or
(£) Throws, or causes to fall, or strike at, against, into or upon
any engine, any wood, stone or other matter or thing, with intent
to injure or endanger the safety of any person being in and upon
such engine, tender, carriage or truck, or in or upon any other
engine, tender, carriage or truck of any train of which such first
mentioned engine, tender, carriage or truck forms part.
Sec. 489. Mischief on Railways.
Everyone is guilty of an indictable offence, and liable to five
years' imprisonment, who, in manner likely to cause danger to
valuable property, without endangering life or person :
(a) Places any obstruction upon any railway, or takes up,
removes, displaces, breaks or injures any rail, sleeper or other
matter" or thing belonging to any railway ; or
(£) Shoots or throws anything at an engine or other railway
vehicle ; or
(c) Interferes without authority with the points, signals or
other appliances upon any railway ; or
(d) Makes any false signal on or near any railway ; or
(e) Wilfully omits to do any act which it is his duty to do ; or
(/) Does any other unlawful act ;
2. Everyone who does any of the acts above mentioned, with
intent to cause such danger, is liable to imprisonment for life.
Sec. 490. Obstructing the Construction or Use of any
Railway.
Everyone is guilty of an indictable offence, and liable to two
years' imprisonment, who, by any act or wilful omission, obstructs
or interrupts, or causes to be obstructed or interrupted, the
construction, maintenance, or free use of any railway or any
part thereof, or any matter or thing appertaining thereto or con-
nected therewith.
clvi THE RAILWAY LAW OK CANADA.
Sec. 491. Injuries to Packages in Custody of Railways.
Everyone is guilty of an offence, and liable, on summary con-
viction, to a penalty not exceeding twenty dollars over and
above the value of the goods or liquors so destroyed or damaged,
or to one month's imprisonment, with or without hard labor,
or to both, who : —
(a) Wilfully destroys or damages anything containing any
goods or liquors in or about any railway station or building, or
any vehicle of any kind on any railway, or in any warehouse, ship
or vessel, with intent to steal, or otherwise unlawfully to obtain or
to injure the contents, or any part thereof; or
(b] Unlawfully drinks or wilfully spills or allows to run to waste
any such liquors, or any part thereof.
Sec. 421. Punishment of Forgery.
Everyone who commits forgery of the documents hereinafter
mentioned is guilty of an indictable offence, and liable to the
following punishment :
(i) To seven years' imprisonment ', — if the document forged pur-
ports to be, or was intended by the offender to be understood to
be, or to be used as —
(m) Any ticket or order for a free or paid passage on any
carriage, tramway or railway, or on any steam or other vessel.
Sec. 362. Obtaining Passage by False Tickets.
Everyone is guilty of an indictable offence, and liable to six
months' imprisonment, who, by means of any false ticket or order,
or of any other ticket or order, fraudulently and unlawfully
obtains or attempts to obtain any passage on any carriage, tram-
way or railway, or in any steam or other vessel.
Sec. 351. Stealing ou Railways.
Everyone is guilty of an indictable offence, and liable to fourteen
years' imprisonment, who steals anything in or from any railway
station or building, or from any engine, tender, or vehicle of
any kind on any railway.
CRIMINAL LAW AFFECTING RAILWAYS. clvii
Sec. 33O. Stealing Railway or Steamboat Tickets.
Everyone is guilty of an indictable offence, and liable to two
years' imprisonment, who steals any tramway, railway or steam-
boat ticket or any order or receipt for a passage on any railway
or in any steamboat or other vessel.
Sec. 514. Treatment of Cattle while in Transit by
Kail or Water.
No railway company within Canada, whose railway forms any
part of a line of road over which cattle are conveyed from one
province to another province, or from the United States to or
through any province, or from any part of a province to another
part of the same, and no owner or master of any vessel carrying
or transporting cattle from one province to another province, or
within any province, or from the United States through or to any
province, shall confine the same in any car or vessel of any des-
cription, for a longer period than twenty-eight hours, without
unlading the same for rest, water and feeding, for a period of at
least five consecutive hours, unless prevented from so unlading
and furnishing water and food, by storm or other unavoidable
cause, or by necessary delay or detention in the crossing of
trains ;
2. In reckoning the period of confinement, the time during
which the cattle have been confined without such rest, and with-
out the furnishing, of food and water, on any connecting railway
or vessel from which they are received, whether in the United
States or Canada, shall be included ;
3. The foregoing provisions as to cattle being unladen shall
not apply when cattle are carried in any car or vessel in which
they have proper space and opportunity for rest, and proper
food and water ;
4. Cattle so unloaded shall be properly fed and watered
during such rest by the owner or person having the custody
thereof, or, in case of his default in so doing, by the railway com-
pany, or owner or master of the vessel transporting the same, at
the expense of the owner or person in custody thereof. And
such company, owner or master shall in such case have a lien
upon such cattle, for food, care and custody furnished, and
shall not be liable for any detention of such cattle ;
clviii THE RAILWAY LAW OF CANADA.
5. When cattle are unladen from cars for the purpose of
receiving food, water and rest, the railway company, then having
charge of the cars in which they have been transported, shall,
except during a period of frost, clear the floors of such cars, and
litter the same properly with clean sawdust or sand, before
reloading them with live stock ;
6. Every railway company, or owner, or master of a vessel,
having cattle in transit, or the owner or person having the custody
of such cattle, as aforesaid, who knowingly and wilfully fails to
comply with the foregoing provisions of this section, is liable for
every such failure on summary conviction to a penalty not
exceeding one hundred dollars.
Sec. 515. •
Any peace officer or constable may, at all times, enter any
premises where he has reasonable ground for supposing that any
car, truck or vehicle, in respect whereof any company or person
has failed to comply with the provisions of the next preceding
section, is to be found, or enter on board any vessel in respect
whereof he has reasonable ground for supposing that any com-
pany or person has, on any occasion, so failed ;
2. Everyone who refuses permission to such peace officer or
constable is guilty of an offence, and liable, on summary convic-
tion, to a penalty not exceeding twenty dollars, and not less than
five dollars, and costs, and in default of payment, to thirty 'days'
imprisonment.
AN ACT RESPECTING THE SALE OF RAILWAY
PASSENGER TICKETS.
REVISED STATUTES OF CANADA, CHAPTER no.
HER MAJESTY, by and with the advice and consent of the
Senate and House of Commons of Canada, enacts as follows : —
1. Any railway company subject to the jurisdiction of the Par-
liament of Canada, or to which " The Railway Act " applies, and
the Minister of Railways and Canals, as respects any railway
under the control of the Government of Canada, may appoint, in
any city, town or village in Canada, such person or persons as it
or he chooses, as agents for the sale of passenger tickets to pas-
sengers or persons who desire to travel by the railway of the
company employing such agent, or by any Government railway,
as the case may be.
2. The Minister of Railways and Canals, or company employ-
ing any such agent, shall give him a certificate of his appoint-
ment, which shall be under the hand of the Minister of Railways
and Canals, or the corporate seal of the company appointing him ;
and such agent shall keep the same framed or exhibited in some
conspicuous part of his office or place of business, where it can
be seen and read by those resorting to the office.
3. Every agent of a foreign railway company doing business
in Canada shall, before issuing tickets over any Government rail-
way line, or other Canadian railway line, be duly authorized for
such purpose by the Minister of Railways and Canals, or by the
company, as the case may be, over whose line he desires to issue
tickets, in the same manner as is hereinbefore provided in respect
of other agents, and shall have and exhibit, in like manner, a cer-
tificate from the foreign company he represents.
4:. Every ticket sold by any agent shall have the name of such
agent and the date of the sale written or stamped plainly upon it,
and every person who fraudulently alters, changes or imitates
such signature or date is guilty of an offence against this Act.
clx THE RAILWAY LAW OF CANADA.
5. Nothing in this Act shall prevent the duly authorized agent
of any company from procuring from the duly authorized agent
of any other company, a ticket for a passenger to whom he has
sold a ticket to travel over the line or any part thereof for which
he is the authorized agent, so as to enable such passenger to tra-
vel to the point or junction from which he has previously secured
his ticket.
6. Nothing in this Act contained respecting the appointment
of agents for the sale of tickets shall prevent the station agents of
the Minister of Railways and Canals or company, at their sta-
tions, and in their ticket offices at such stations, from selling
tickets to passengers about to enter upon and travel by railway
from the said stations.
7. No person, except those authorized as above mentioned,
shall sell or offer for sale any railway passenger ticket, or pass,
ticket, certificate or other instrument, enabling any person or pur-
porting to entitle any person to travel on any one railway, or
more than one railway, or on any part of one railway, or parts of
several railways to which this Act applies.
8- Every person guilty of an offence against this Act shall,
upon summary conviction thereof, before any justice of the peace,
be liable to a penalty not exceeding fifty dollars, and not less than
twenty dollars and costs, or to imprisonment for a term not ex-
ceeding ninety days, and not less than ten days, or to both pen-
alty and imprisonment, in the discretion of the justice.
9. The Minister of Railways and Canals, with respect to any
Government railway and every railway company subject to the
jurisdiction of the Parliament of Canada, or to which " The Rail-
way Act " applies, as the case may be, shall repay to every holder
of a ticket over any Government railway line or other Canadian
railway line, as the case may be, the cost of his ticket, if unused
in whole or in part, less the ordinary and regular fare for the dis-
tance for which such ticket has been used ;
2. Such repayment shall be made at any station or office of
the railway or company between and including the points cover-
ed by the ticket ;
3. The claim for such redemption shall be made within thirty
ACT RESPECTING THE SALE OF TICKETS. clxi
days from the expiration of the time for which the ticket was
issued, in accordance with the conditions thereon ;
4. The sale by any person of the unused portion of any ticket
otherwise than by the presentation of the same for redemption, as
provided for in this section, is an offence against this Act, and
shall be punishable as herein provided.
10. Every passenger who presents a single journey ticket
upon a train within the time for which the conditions printed
upon such ticket and the date shows such ticket to be good for
use, may apply to the conductor of such train to have the priv-
ilege of stopping over granted, and the time for which the ticket
is valid extended, which shall be conceded on tickets purchased
at railway ticket offices in Canada, from one place in Canada to
another, or from a place in Canada to a place in the United
States ; but no such passenger shall be entitled to have such time
extended for more than two days for every fifty miles of distance
to be travelled in Canada.
11. Every complaint respecting an offence against this Act
shall be prosecuted under the provisions of the " Act respecting
summary proceedings before Justices of the Peace"
12. The examination or deposition of any complainant or wit-
ness, taken or heard under oath in the presence of the person
accused, on the hearing of any complaint for any offence against
this Act, may, if the person charged, or his counsel or agent, has
had the opportunity of cross-examining such complainant or wit-
ness, whether he has done so or not, be used in evidence on the
hearing of any appeal from any decision of the justice of the peace
before whom the trial was had, if the person whose examination
or deposition is so used is out of the jurisdiction of the court to
which the appeal is made, and if the said examination or deposi-
tion has been reduced to writing and has been signed by the per-
son whose examination or deposition it purports to be ;
2. The said examination or deposition may be read and taken
as evidence on the hearing of such appeal, upon the production
of the certificate of the justice of the peace before whom the trial
was had, under his hand, setting forth that the said examination
or deposition which is offered in evidence was taken before him
on the hearing of the complaint which forms the subject matter
of the said appeal. L
FORMS OF PROCEEDINGS IN EXPROPRIATION.
ARBITRATION NOTICE, SURVEYORS' CERTIFICATE
AND NOTICE OF APPLICATION TO COUNTY
JUDGE.
In Re : RAILWAY COMPANY.
Province of , County of
Municipality of the
To
of the of
owner of the property
hereinafter described.
You are hereby notified, under the provisions of '•' The Rail-
way Act" and amendments :
1. That the Railway Company
requires for the purposes of its Railway certain lands in
the of belonging to
you, shown on the map or plan deposited in the office of the
Clerk of the Peace for the said County, under the location
No. and particularly described as follows :
All that portion of lot number in
of the said of containing by admeasurement
acres and of an acre.
2. The said Company is ready and willing and hereby offers
to pay to you the sum of as
compensation for such lands and all damages in respect of the
taking thereof, for the purposes of the Company, and in the
exercise of the powers conferred upon it by its charter anc1 ihe
said Act and amendments.
3. The Company appoints of
its arbitrator, if its said offer is not
accepted by you.
4. Application will be forthwith made in accordance with the
notice endorsed hereon.
Dated at day of 18
Solicitors for Railway Company.
FORMS OF PROCEEDINGS IN EXPROPRIATION. clxiii
Certificate of Provincial Laud Surveyor.
I, of in the
County of a sworn Provincial Land
Surveyor of the Province of , disinterested in this-
matter, do hereby certify as follows :
1. That the above described parcel of land shown on the Map
or Plan of the said Railway is required for said Railway.
2. That I know the said parcel of land and the amount of dam-
age likely to arise from the same being taken for the line and
purposes of the said Railway, as aforesaid.
3. That the sum offered in and by said notice is, in my opin-
ion, a fair compensation for the said land and for the damages as
aforesaid.
As witness my hand the day of 18
Provincial Land Surveyor.
(ENDORSATION.)
Notice of Application Referred to iu the Fourth
Paragraph.
You are also required to take notice that because the said
the Railway Company requires the
immediate possession of the land within referred to, which is
necessary to carry on part of the said Railway, with which the
said Company is ready forthwith to proceed, application will be
made to the Judge of the County Court, of the within-named
County, at the Court House of the said County, on the
day of at the hour of o'clock
in the noon, for his warrant to the Sheriff of the said
County to put the said Company in possession of the said lands,
unJer the provisions of The Railway Act, which will issue, unless
you1, on that occasion, or in the meanwhile, show good cause to
the contrary.
Solicitors for Railway Company.
clxiv THE RAILWAY LAW OF CANADA.
Affidavit.
County of ") In the matter of the
I
to wit : }• Railway Company and
J
of the Township of
and part of Lot number
in the Concession of the
Township of ;
I of the of
in the County of
make oath and say as follows :
1. That I am of the
Railway Company, and am acquainted with the state and posi-
tion of the Company's work, and what is required in respect of
the same.
2 . That the Company require immediate possession of the
lands above mentioned, and which are shown on the maps and
plans and book of reference, duly filed with the Clerk of the
Peace for the said County : and that such possession is necessary
to carry on a part of the said Railway with which the Company
are ready to forthwith proceed.
3. That a notice of arbitration and a surveyor's certificate
under the provisions of the Railway Act have been duly served
on the said
and the amount mentioned in the said notice and certificate was
tendered to the said
but he refused to accept the same, and stated that he would
resist the said Company taking possession of the said lands.
4. That the said Company are ready to give security to the
satisfaction of the Judge of the County Court, in accordance
with the provisions of the Railway Act.
Sworn before me at the ^
in the County of
day of A.D. 18
A Commissioner of the Court of JB.R., etc.
FORMS OF PROCEEDINGS IN EXPROPRIATION. clxv
Notice to Desist.
In the matter of the Railway Company
and
You are hereby notified that the
Railway Company desist from the notice of arbitration herein
given on the day of
herein, and that new notice of arbitration is served herewith.
Solicitors for the Railway Company.
To
his Attorney.
Warrant fro in Jud*e of the County Court.
County of ~) In the matter of the
I
to wit : \ Railway Company
Jof
in the Township
of and part of Lot number
in the Concession of the Township of
I, of the
Esq., Judge of the County Court of the County of
to of the
of the said County, send GREETING :
By virtue of the special Acts incorporating said Company,
and of the authority in me vested by the Railway Act, and being
satisfied by affidavit in that behalf that the immediate possession
of the lands mentioned in the notice, served on the said
on the day of A.D. 18 ,
and hereinafter specified, is necessary in order to carry on some
part of the Railway of the Railway
Company, with which the said Company are ready forthwith to
proceed, and the said Company having given security to my
satisfaction, by the deposit in the Bank of
a sum double the amount mentioned in the said notice, I com-
mand you that without delay you[do put the
Railway Company, their agent and servants, in possession of
that part of Lot in the Concession of the
clxvi THE RAILWAY LAW OF CANADA.
Township of in the County of
shown on the map or plan of said Railway and required by the
said Company for the purposes of their Railway, and put down
all resistance or opposition ^thereto, taking with you sufficient
assistance for such purpose.
Dated the day of A.D. 18
Given under my hand and seal
Judge of the County Court of the County of
Notice of Application to Judge.
For appointment of Third Arbitrator.
County of "| In the matter of the
to wit : \ Railway Company and
j
Proprietor.
Whereas and Arbitrators,
respectively appointed by the parties hereto, are unable to agree
upon a third Arbitrator to act with them in this matter.
You are hereby requested to take notice that application will
be made to His Honor, the Judge of the County Court of the
County of at his Chambers in the Court House,
in the in the said County, at
noon, on , the day of ,
A.D. 18 , to nominate and appoint such third Arbitrator in
accordance with the Railway Act.
Dated this day of A.D. 18
To )
and r Solicitors for Railway Company.
Attorney. )
Appointment of Third Arbitrator.
County of ( In the matter of the
to wit : 1 Railway Company and
and part of Lot number
in the Township of in the County of
The Arbitrators herein duly appointed by the
Railway Company and
FORMS OF PROCEEDINGS IN EXPROPRIATION. clxvii
above named, being unable to agree upon a third Arbitrator,
and due notice having been given under the provisions of the
Railway Act, and on the application of the Company, I
Judge of the County Court of the County of
by virtue of the authority in me vested by the provisions
of the Railway Act, do hereby appoint of
to be the third Arbitrator herein.
Award.
The Railway Company.
Know all men by these presents, that , and ,
and , of , being the Arbitrators
appointed pursuant to the provisions of the Railway Act, having
duly taken upon ourselves the duties of our said office, and hav-
ing proceeded conformably to said Act, to ascertain the com-
pensation to be paid by said Company for the following parcel
of land, taken by the said Company for the purpose of its Rail-
way, that is to say —
do hereby order, award and adjudge that the sum of
dollars shall be paid by this Company, as and for and in full of
such compensation for the said land and all damages in respect
thereof.
As witness our hands and Seals this day
of A.D. 18
Signed, sealed and delivered,
in presence of
Agreement for Rig-lit of Way, &c.
This agreement, made this day of
in the year one thousand eight hundred
and between
of the of in the
County of and the
Railway Company, as follows :
i. The said agrees to sell and
convey to the said Company, by a proper Deed, with Bar of
clxviii THE RAILWAY LAW OF CANADA.
Dower, and free from incumbrances, so much of Lot number
in the Concession of
the Township of in the County of
as is taken or required by the Company
for its line of Railway, and containing acres,
more or less, for the sum of being the price of the
said land, and all damages in respect thereof.
2. The Company agrees to prepare, as its own expense, the
necessary Deed of said land, and to pay the said sum of
within days from this date.
3. The Company is at liberty to take possession of said land
forthwith, for the purposes aforesaid.
Witness,
FORMS OF PROCEEDINGS IN EXPROPRIATION,
QUEBEC.
Arbitrator's Award.
THE RAILWAY COMPANY,
and Expropriated Party.
The day of
before the undersigned Notary,
appointed for the Province of Quebec, residing and practising
in
Appeared
1. of Arbitrator,
appointed by the Railway Company of
the First Part.
2. of Arbitrator,
appointed by of
Party Expropriated, of the Second Part.
3. And of
FORMS OF PROCEEDINGS IN EXPROPRIATION. clxix
third Arbitrator duly appointed by the said two arbitrators (or
by the Court).
Which said Arbitrators and third Arbitrator report and de-
clare as follows : —
That after notice given, according to law, to the said (the
Railway Company) and to the said (the party expropriated),we^
the Arbitrators and third Arbitrator, met at
on the day of and
being there duly sworn, in presence of the parties interested, we
commenced proceedings by visiting the land expropriated be-
longing to the said and described as follows :
(here follows description of land).
After having examined the papers of record produced by the
said Company and by the said expropriated party, having sworn
and examined the witnesses produced by each party, the parties
being represented by their respective Counsel, to wit : — the-
Railway Company by and the said
expropriated party, by ; having
obtained all the information necessary and having examined the
said expropriated party, we are agreed (the said
dissenting) that the said
expropriated party has a right to the sum of
as a fair compensation for the strip of
land above described and taken by the said Company for their
Railway, this sum including all damages caused by the expro-
priation of the said nroperty, and the exercise of the powers of
the Railway Company thereon.
We the said Arbitrators and third Arbitrator therefore award
to the said the said sum of
which he has a right to-
recover from the said (the Railway Company).
The said (dissenting Arbitrator) declares that he does not
concur in this award, and that he signs only to place his dissent
on record.
Done and passed at etc.
(Signatures of the three Arbitrators and Notary?)
clxx THE RAILWAY LAW OF CANADA.
Warrant of Possession.
Province of Quebec : 1 SUPERIOR COURT.
District of j
The Honorable
To the Sheriff (or any Bailiff] of the said District of
GREETING
Whereas on the day of
(The Railway Company) a body politic
and corporate, having its principal office in the City and District
of presented to me, the undersigned,
one of the Judges of said Court residing in said District of
a petition setting forth that the said Company
were then engaged in and proceeding with the construction of
a line of Railway, forming a portion of their Railway by law
authorized, the said portion extending from, etc., etc. ; and that,
as appeared by the affidavit produced with said petition, the
immediate possession of that certain piece or parcel of land
belonging to of the Parish of in the
County of aforesaid, was necessary to the said Com-
pany for the purpose of carrying on the construction of the said
portion of their said Railway, which said piece or parcel of land
was therein mentioned as comprising and consisting of a strip of
land, etc., etc., and which said piece or parcel of land forms part
of a certain immovable property lying and being in the said
Parish of and known and distinguished as
lot number on the Official (or Cadastral)
Plan and in the Book of Reference for the said Parish, accord-
ing to law.
And whereas in and by said Petition the said Company fur-
ther set forth that they had adopted and fulfilled all the prelimin-
ary proceedings required by the provisions of the Railway Act,
to entitle them to my warrant to put the said Company in
immediate possession of the said piece or parcel of land in said
petition mentioned, and for which the said Company had offered
to pay to the said the sum of
and of which said petition and of the presenting thereof, he, the
FORMS OF PROCEEDINGS IN EXPROPRIATION. clxxi
said had due notice, the said Com-
pany therein and thereby declaring their willingness to give the
security required by law to entitle them to such warrant.
And whereas on the - day of after
hearing the said parties to said Petition, to wit, the said Com-
pany and the said I did grant the
prayer of the said Petition, and ordered the said Company to
deposit in the Bank of in the
City of the sum of
to the credit of the said Company and of said
jointly, and to await the further order herein.
And whereas said Company has, as appears by the receipt
fyled herein, deposited said sum. These are therefore to com-
mand you, that you do put the said
Railway Company in immediate possession of the said strip
piece or parcel of land so hereinbefore described and required
in the construction of said Railway, and that you do put down all
resistance and opposition to such possession, and for so doing
this shall be your authority.
Herein fail not.
Given under my hand and seal of said Court at
in said district of this day of
Certificate of Bank Cashier.
I, the undersigned, Cashier of the Bank at
certify by these presents that the
Railway Company has to-day deposited in this Bank the sum of
, and that this sum is at the
joint credit of the said Company and of
of and that said sum will be paid
only upon the order of the Superior Court for the district of
Done and signed in duplicate at
this day of
(Signature of Cashier).
SPECIAL FORMS FOR THE PROVINCE OF
QUEBEC.
Notice of Expropriation.
Province of Quebec, ) No.
District of }
In the matter of
The Railway Company, and
to
of the of proprietor.
Take notice that part of certain lot of land
and premises in your possession, known and distinguished on
the Official Plan and Book of Reference of the
of in the of
as lot number described as
lot No. on the map or plan and book of refer-
ence of the said railway, required from you by the
Railway Company, for the purposes of their Railway, and
will be taken under the provisions of The Railway Act, viz.:
part of said Lot No. described as follows : —
That the said Railway Company are ready and
willing, and hereby offer, to pay the sum of
dollars as a compensation for the said land and for all damages
caused to you by the exercise of their franchises thereon.
That in the event of your not accepting this offer the
Railway Company hereby nominate and appoint
to be their Arbitrator for the purpose of ascertain-
ing the compensation to be paid to you for the said land and
damages, in accordance with the Railway Act.
Montreal, 18
FORMS OF PROCEEDINGS IN EXPROPRIATION. clxxiii
Secretary Railway Company.
I, of the
of in the
a sworn Surveyor for the Province of Quebec, do hereby certify :
1. That I am disinterested in the matter within referred to.
2. That the land lastly within described is required for the
Railway.
3. That I know the lot of land and premises in question and
the amount of damages likely to arise from the exercise of the
powers of the said Railway Company thereon.
4. That the sum offered by the Railway Com-
pany in the within notice is a fair compensation for the same and
for all damages as aforesaid.
Dated at . the day of 18
Province of Quebec, )
District of j
In the matter of The Railway Company, and
Proprietor,
I,
of the make oath and say, that I did
on the day of 18
personally serve
with a duplicate original of the within Notice and of the Sur-
veyor's certificate endorsed thereon.
Sworn before me at
in the of
this day of A.D. 18
Petition for Warrant of Possession.
Canada, ~)
Province of Quebec, V-IN THE SUPERIOR COURT.
District of Montreal. J
The Railway Company, petitioners to obtain
possession of property, and proprietor.
To any one of the Honorable Judges of the Superior Court for
Lower Canada, sitting in and for the District of Montreal :—
clxxiv THE RAILWAY LAW OF CANADA.
The petition of the Railway Company, a
body politic and corporate, having its principal office and place
of business in the City of Montreal,
respectfully represents :
That the said the Proprietor
in possession of lot Number
on the official plan and in the book of reference
for the portion whereof is
required for the purposes of the said Railway, to wit, the lot
known as No. en the plan and Book of Reference
of the said Railway Company hereinafter mentioned.
That the map or plan and book of reference for the
Railway has been duly prepared and examined, and
duly certified by the Minister of Public Works, and a duplicate
so examined and certified has been deposited in the office of the
Department of Railways and Canals, and that since the said
deposit, to wit, on the day of
eighteen hundred and eighty- a copy of the said map or
plan and book of reference, duly certified, relating to the District
of Montreal, svas deposited in the office of the Clerk of the Peace
for the said District ;
That on the day of eighteen hundred
and eighty- notice of the deposit of the said map or plan
and bcok of reference was given in one newspaper published
within the said district, to wit, in the City of Montreal ; and
that after the expiry of ten days from the said deposit, and from
the said notice thereof, application was made to the said proprie-
tor for a conveyance to the said Petitioners of the land requited
for the right of way of the said railway as described upon the
said map or plan and book of reference, to wit, as follows : —
That on the day of the said
Company caused to be served upon the said proprietor
a notice containing a description of the said land so to be
taken for the said Railway, a declaration of their readiness to pay
to the said Proprietor the sum of
dollars, as compensation for the said land, and for any damage
caused to the said Proprietor by the construe,
tion of the said railway, and the name of the person, to wit,
FORMS OF PROCEEDINGS IN EXPROPRIATION. clxxv
to be appointed as the arbitrator of the said
petitioners if their offer should not be accepted. And such
notice was accompanied by the certificate of a sworn Surveyor
of the Province of Quebec, to wit,
of the he being disinterested in the matter
and not being the arbitrator named in such notice, by which cer-
tificate it was declared that the said land so shown as aforesaid
on the said map or plan and book of reference was, and is,
required for the said railway; that he (the said Surveyor) knows
the land and the amount of damage likely to arise to the Propri-
etor by the exercise of the powers of the said Com-
pany, the petitioners, and that the said sum of
dollars, was, and in his opinion is, a fair compensation for the
said land and for the said damages.
That as appears by the affidavit of
hereto annexed, the immediate occupation of the said land is
necessary to carry on the construction of that portion of the said
railway crossing the said land, and that the Company, the Peti-
tioners, are ready forthwith to proceed with such construction.
That the said Company Petitioners are ready and willing to
give security to the satisfaction of your Honor, by depositing in
a chartered bank to be indicated by your Honor, to the credit of
the said Company, the Petitioners, and of the said Proprietor
jointly, suai sum of money as shall be ordered by your
Honor in that behalf;
Wherefore the Company Petitioners, praying acte of their
readiness to give security as aforesaid by depositing such sum as
your Honor may deem fit; further pray that your Honor may
be pleased to oider that a warrant do issue to the Sheriff, or to
any Bailiff of the District of Montreal, as your Honor may deem
fit, to put the Company Petitioners in immediate possession of
the said portion of the said lot, in order that they may carry on
the construction of that portion of their railway which will pass
over the said lot of land, pending such arbitration ; and that by
the said wanant the Sheriff or Bailiff, as the case may be, be
authorized to put down any resistance or opposition that may be
offered, and for that purpose to take with him sufficient assist-
ance ; the whole with costs a qui de droit.
Montreal, 18 .'
Attorney for Petitioners.
clxxvi THE RAILWAY LAW OF CANADA.
I, of the city of Montreal, the
Railway Company, above named, the Petitioners, being duly
sworn, depose and say :
That I have taken communication of the foregoing Petition,
and that all the matters and things therein set forth and contain-
ed are true ;
That the immediate possession of the lands of the said pro-
prietor described therein is necessary to carry on
a part of the Railway of the said Company, Petitioners, with
which they are ready forthwith to proceed.
And I have signed.
Sworn before me at Montreal,
this day of
A.D. 18
To
proprietor in the foregoing Petition named :
Take notice of the foregoing Petition, and that the same will
be presented for allowance to someone of the Honorable Judges
of Her Majesty's Superior Court for Lower Canada sitting in
Chambers in and for the District of Montreal, on the
day of at 10.30 of the clock in the forenoon, or so
soon thereafter as Counsel can be heard.
Montreal, 18 .
Attorney for Petitioner.
Agreement to Sell.
I, of
hereby agree to sell to the Railway Company,
the portion of my property, being number
of the official plan and book of reference of the Parish of
which is shown on the map or plan of the Railway
of the said Company under ihe number , as being
required for such Railway, being a strip of land feet
long by wide, across my said property, as shown
by the said map or plan, containing arpents and
hundredth of an arpent
FORMS OF PROCEEDINGS IN EXPROPRIATION, clxxvn
The price to be
payable in cash upon the execution of a deed of sale of the said
right of way, such price to cover all claims for damages caused
to my property by the Railway. And pending the execution of
a deed of sale of the said land, fur the purpose of which I will
furnish my title deeds to the said Company forthwith, I consent
to the said Company proceeding with its works thereon.
In witness whereof, I have executed these presents at
, in the said this day of 189
In presence of >•
Notarial Deed of Sale.
No.
18
Sale by
to " The Railway Company. "J
On this day of one thousand eight
hundred and , before me,
iie undersigned notary, duly admitted and sworn in and for the
Province of Quebec, practising
Appeared :
hereinafter called the vendor.
And the Railway Company, a body corpor-
ate, having its chief office in the said City of
hereinafter called the " Purchasers," and herein acting by
their of the said city of Montreal,
Esquire, and duly authorized for the purpose hereof:
Who declared unto me, the said notary, as follows :
Whereas the piece of land, hereinafter described, is required
for the construction of the Railway, which the Purchasers are
empowered to make, and complete, and operate under and by
virtue of their Act of incorporation.
And whereas the vendor has promised to sell, convey and
transfer to the Purchasers the said piece of land, subject to the
conditions hereinafter mentioned.
clxxviii THE RAILWAY LAW OF CANADA!
Now, therefore, these presents, and the said notary, witness :
That the vendor
declare to have sold and conveyed, and by these presents
do sell and convey with warranty against all gifts, dowers,
mortgages, substitutions, servitudes and other encumbrances
whatsoever to the Purchasers, accepting by their executive of-
ficer above named.
A certain parcel or tract of land situate in the parish of .
county of ; measuring
feet in width, by about feet in length, English meas-
ure, and forming a total area of
known and designated under the number on
the location plan of the said railway, duly fyled according to law.
The hereby sold piece of land, being a portion of lot number
on the official plan and Book of Reference of the
and being more particularly described as
follows :—
of which the Purchasers declare to have a perfect knowledge, as
having seen and viewed the same, and with which they are satis-
fied.
The vendor lawfully seized thereof by virtue of sufficient
title, as having acquired the same
To have and to hold the aforesaid bargained and sold piece of
land unto the purchasers, their representatives and assigns for-
ever.
And in consideration of the said sale and of the release of the
Purchasers from any claim for compensation for damages arising
from the exercise of the powers of the Company upon the piece
of land hereby conveyed as hereinafter contained ; the Pur-
chasers bind and oblige themselves to pay the sum of
dollars, which said sum
And in consideration of the said sum, the vendor do
hereby also covenant that the Purchasers may construct and oper-
ate a railway on the said land, and in respect of such railway,
may exercise on the said land such powers as may be conferred
on them by law, without any claim for damages on account there-
FORMS OF PROCEEDINGS IN EXPROPRIATION. clxxxi
of; and the vendor hereby release the Purchasers from
all such claims :
The vendor further declare that the hereby sold land
is free and clear of all mortgages and encumbrances.
This sale is further made subject to the following clause and
condition, viz.:
i. That the Purchasers shall erect and maintain on each side
of the Railway, proper fences, so far as they are required by the
Railway Act, and, further, shall construct, for the vendor, across
the said land, at a place to be decided upon by the purchasers, a
convenient and proper for the crossing of the rail-
way by farmers' implements, carts and other vehicles, together
with such openings, or gates, or bars, with fastenings as are re-
quired by law ; the Purchasers being not bound to construct any
other crossing across the said property ; the said vendor hereby
renouncing the right thereto, as well for himself as for his heirs
or assigns.
And to these present ha intervened the following parties
to wit:
T. Dame
wife of the said vendor
duly authorized by him to all the intents and purposes hereof;
who, in consideration of the premises, doth renounce, as well for
herself as for her children born, or to be born of her marriage
with the said vendor, to all dower, either prefix or customary and
to all hypothecary claims for dower or matrimonial rights, and
for all other rights and claims which she or ,her children may
have or could pretend in and upon the piece of land hereby
sold ; either by law, by contract of marriage, or otherwise.
The vendor shall have no expenses to pay in respect of and
under the present sale, except the costs of the certificates from
the Registry Offices.
And as security for the payment of the said sum of
dollars as hereinbefore agreed and of the interest thereon, the
hereby sold property is hypothecated in favor of the creditor
thereof.
And for the execution of these presents, the said parties have
elected their domicile at the place above mentioned.
clxxx THE RAILWAY LAW OF CANADA.
Done and passed on the day and year
first above written, under number thousand
hundred and and signed by the
aforesaid parties with the undersigned Notary, after these pre-
sents were first duly read over.
ANALYTICAL, INDBX.
PAGE
Accidents and Casualties — Power of Railway Committee as to inquiry
into Append. 12
" Notice to be given 396, " 119
" " " Penalty for omission 396, " 119
" Commission to enquire into " Hg
" Remuneration " 119
" " " Report « 119
" '• Payment of Commissioners and
witnesses Append. 119
" at crossings, etc. — See Negligence.
" Investigation into 396
" Returns to be made Append. 134
Acquiescence by Comp. in Acts of President 21 note (3)
" Acquiescence " — Meaning of 89
" 33
"ActofGod" 365
Action for recovery of unpaid shares, where it arises. ... 12, 52 note (2)
" Hypothecary 142
" Petitory .139 note (3)
" to enforce claim of Company against the Province. .90 note (i)
" Cause of 288
" See Limitation of Actions.
Acts of Agents and Servants 365
Administrators — See Executors.
Agency — Liability of Company for acts of Contractors (and see
' ' Agents," " Officers ") 234
Agents — Contracts of carriage made with 3 14
" Liability of Company for acts of 29.
" Notice to, when notice to the company 33.
" Personal liability of 29
" Power to bind company 32
''• Presumption as to authority of 30
Agreement to erect station ; how interpreted 78, 91, note (2)
" to pay in fully paid-up shares 87 note (3 )
" to take land in event of bill passing 78 note (3)
AA
644 THE RAILWAY LAW OP CANADA.
PAGE
Alighting at Stations— See Carriers of Passengers.
Animals, injury to, on track Append. 91
Annual Statement — Directors shall cause to be prapared " 27
Appeal from award 202, 203 et seq., " 73
" " Practice 202, " 74
other remedies not affected " 74
" to Governor in Council from Decision of the Railway Com-
mittee Append. 13
Appliances for communication and stopping trains " 109
Aqueducts — Power to make 82
Arbitration as to crossing other railways 82
" Award — Service of 148 note (3)
" delay for making 149 note, 150 note
" " Form of 149 note ; 189, 192, 199
' ' Not to be void for want of form Append. 73
" " appeal from 151,202, " 73
" '•' Finality of 151, " 69
" " grounds of appeal 203
" " questions of fact 203
" Principles upon which Courts interfere in questions
of fact 203
*' ' ' Remedies against 194
" « Interest on 188,189, 212
" " As a title to land.. 212
"• " Time in which to be made Append. 71
fl Costs of 209, " 70
" Desistment from 189, " 72
" " new notice to be given " 72
" Irregularity of proceedings — Ratification 14911016, 150
Arbitrators 147 , Append. 66
" appointment of, by party and of third arbitrator 148, " 68
" First meeting 148
" To be sworn 148, Append. 69
" Reports of 148 note (2)
" Duties of 148 note (3)
" Examination of witnesses 149, Append. 70
" Evidence to be taken d'iwn in >vriting " 70
'' Must act at meeting 152
'<• Vacancy among 152, Append. 71
« "e no re-commencement of proceedings " 71
" Disqualification of 1S2
<« " not disqualified unless personally interested
152, Append. 72
« " when must l>e urged " 73
ANALYTICAL INDEX. 645
PAGE
Arbitrators How to be guided in making their valuation 154
'' In creased Rvalue to remainder of land 154, Append. 69
" Lands injuriously affected ^by the construction of the
Railway 161
" Nature of damages that may be considered by arbitra-
tors 173
' ' Value of land how to be estimated 1 75
" Access to landways and waterways ... 178
' ' Loss of business 1 84
" Injury to business 184
' ' Loss of privacy 184
' ' Injury to franchises . 184
" " easements 185
" " trees 185
" Transmission f of Record Append. 70
* ' At the next general meeting " 1 16
Award- — See Arbitration.
Baggage — Checks to be affixed to 344, Append. 112
" " penalty for refusal 344, " 112
" Evidence of value of 344, " 112
Baggage — See carriers'of passengers' baggage.
Barbed wire fences 262
Beach — Right to Occupy 137
Bells and Whistles — Locomotives to be furnished with Append, no
" to be rung or whistles sounded at crossing " 114
" " penalty for non-compliance " 114
" Best terms and conditions." 1 16
Bill of Lading — Fraudulently given 29
Bills and Notes — Power to issue . 91, Append. 46
" No seal required 93, " 46
Bills of lading, through — See Carriers.
Boarding the train 337
Bonds, Debentures, etc. — Issue of 93, 1 1 7, 1 18, Append. 42
" " Interest on 94, 95 and note (6)
•" " Sale and pledge of 94, 1 1 6, Append. 43
" " Reissue 94
" " Lien and mortgage on property. 94, Append. 44
" " Coupons — 95,113 See " Coupons "
" " " Interest thereon 113
" " Registration 96, 114, Append. 45
" " Transfer 96,114, " 45
" " First charge on undertaking 103
" " Formalities in making and issuihg no
* ' « " irregularity .. in
646 THE RAILWAY LAW OK CANADA.
PAGE
Bonds, Debentures, etc. — Formalities — notice , in
" " " pleading want of 1 12
" " Stolen Ill
" ' ' Negotiable instruments 112
" " Mandamus to compel registration 115
" " Default in payment 115
" " Pledging 116
" " Depositing as collateral security 116
« " "Deposit" 118
" " " Issue," what constitutes 117 118
'• " Trustees 119
" " When they may be made payable. .Append. 43
" " Holder to be a mortgagee " 44
" " " power of, in case of non-pay-
ment " 45
" " " rights of, defined " 45
" " Certain rights of bondholders not
affected " 45
" " See Debentures — See Bondholders.
Bondholders — Rights of 95, 96, 103
" Are mortgagees 95
' ' Trustees for 95
" Powers of 96
" Rolling stock 96, note (i), 107
" Right to seize railway 102
" "to earnings of railway , 105
' ' to after acquired property 106
" " of, to protect interests 120
Bonuses — Power to receive 77, Append. 37
u " Municipal 90, 91, 92, notes
Books — Inspection of, by Railway Committee relative to accidents. . . .
Append. 12
Borrowing Powers .97,118, " 42
" " Extent of 97, 118, " 43
" " Condition Precedent to n&
" " Excessive 119.
' ' How exercised 119
Boundary — Power to cross 84
Branch Lines — , 80, 8 1 and note i, Append. 40
" Powers of railway committee as to " 10
" Power to construct for certain purposes " 56
" " " " notice. " 56
" " " " appro-
val of railway committee " 57
ANALYTICAL INDEX. 647
PAGE
Branch Lines — Power to construct for certain purposes — approval
of railway committee— limitation of time. Append. 57
" " " powers
as to " 57
Breach of Contract — Criminal " 153
* ' Measure of damages for 422
Bridges over navigable rivers, etc., to be floored Append. 82
" plans of to be approved " 82
" substitution of one form of, for another " 83
" " penalty for non-compliance. " 83
" " no swing bridge to be sub-
stituted without permission " 83
" over highways — Dimensions 84
" when only trains may be run over a bridge 259, " 89
" foot-passengers to use foot-bridge if provided at cross-
ing v, " 121
Bridges and Tunnels — Power to make " 38
" " Height of overhead 259, " 87
" " no higher cars to be used till
bridge is raised 259, " 87
" Bridge to be raised when reconstructed. " 88
and clear heading to be maintained
thereafter " 88
« it « it ei
exception " 89
« II I' l( <(
penalty, " 89
" " 259
" raising without consent of Municipality — Liability 259
" accident occurring on account of — Leased line — Liability. 260, 395
Buildings — Power to erect 84, Append. 39
Burden of proof in cases of injury to horses, cattle, etc 402
By-laws — Must be sanctioned by Governor -in-council. ...20, Append. loo
" When may be contested by action to account brought by
stockholder 24
" To be made by directors Append. 26
" Company may make by-laws, rules and regulations
for certain purposes ... " 98
« (( ii et «
speed " 98
it if it « a
time " 99
648 THE RAILWAY LAW OF CANADA.
PAGE
By-laws — Company may make by-laws, loads Append. 99
« ci a <e n
goods " 99
a a (i ec it
nuisances " 99
II tl 1< « >'
use of railway " 99
It it it t( 1C
conduct of officers ..... " 99
it " n « «
management " 99
" regulating travelling on railway 330
" of municipality allowing cattle to run at large, must be un-
equivocal and affirmative , 407
" Penalty for violation of Append. 99
" Form of " 100
" Sanction " loo
' ' Publication . , .... " 100
" " affecting employees " 101
' ' Who shall be bound by such " 10 1
i{ Summary interference in certain cases " 101
" Certified copy to be evidence " 102
" Punishment for violation of certain " 130
" See Municipal Corporations.
Calls — Action for — Irregularities in organization 39, note (4),
55,63, note (4)
" Illegal acts of directors 39, note (4), 55
" Directors may make 63, Append 28
" Formalities as to making 63, Append. 28
" " notice 64, " 28
' ' Intervals for making 64, Append. 28
" Directors may make more than one by resolution of board 65
Append. 28
" Payment , 65, " 29
" " by note 66
" Instalments 65, note ( I)
" Interest on overdue Append. 29
" Recovery by suit " 29
" What allegations only necessary in suit for calls " 29
" Penalty for refusing to pay " 33
" See Shares.
" See Shareholders — Action by creditors against.
Canadian Pacific Ry. — Act of Incorporation, Consol. Ry. Act, 1879,
7, note
ANALYTICAL INDEX. 649
PAGE
Canals — Power to interfere with 82, Append . 38
Capital Append. 1 7
Capital stock — Division of into shares 13, " 17
Application thereof 13, 87, " 17
" How it may be increased 14 and see note ; " 18
Personal property 35, Append. 32
" Amount fixed by special Act 35
' ' Subscription to 35
Increase 35, 89, Append. 18
" Carried " — Interpretation of word as used in sec. 191 257
Carriers — Liability of company as carriers before opening line for
traffic 272
Carriers of Goods — Obligation to carry 292
" Liability as 294
Insurers of the goods 29^
' i Difference between carriage of goods and carriage
of passengers, as to company's responsibility. . .
295> 322, 323» 324> 325
" Vis Major, etc 295, 296
" Shrinkage of goods 296, 312
" Limitation of liability for negligence 296
" " " generally 302
" Through bills of lading ; liability beyond Carriers'
line 303
" Through bills of lading ; difference between Amer.
and English rule 304
" Limiting liability beyond line 305
" Other conditions limiting liability 309
•'' Special rate 3JO
" " Proper vice." Injury to animals 310
" Rights of consignee where goods damaged 311
" Insufficient packing 311
" Delay in carriage of fresh meat 312
" Liability of succeeding carriers 312
" When contract of carriage begins 313
" Contracts of carriage, acts of agents 314
" Stoppage in transitu 3J5
" Liability after arrival of goods 317
•' " notice to consignee 3X7
" " goods at owner's risk 317
" " • when liability ceases 318
" Liability as warehousemen 318, 321
« When goods " discharged " under sec. 246 321
" Reasonable time for removal 321
650 THE RAILWAY LAW OK CANADA.
PAGE
Carriers of Goods — American authorities conflicting 322
" Measure of damages 418
Carriers of Passengers — Nature of liability 322
" Distinction between carriers of passengers and
carriers of goods . . 322 e seq.
" " " French rule 323
" " " Quebec rule 323, 325
" Degree of care 325
Latent defects in vehicle or road-bed 326
Insufficiency of roadway 327
Crown as a earner 328
Degree of care due those who are not regular pas-
sengers 329
Riding in unauthorized place 330
" " baggage car 330, 332
Duty of railway servants in charge of train 333
" Alighting from trains at stations 333
" Boarding the train 337
Delay in carriage 339
" ordering special train 340
Limiting liability 342
' ' notice of 343
" Measure of damages for injury to persons 424
Carriers of Passengers' Baggage — Checks 344
' ' Personal baggage 344
Unchecked baggage 349
When liability begins 351
" " " ceases 352
Liability of sleeping car companies. . . 357
Limiting liability 361
" " evidence in such cases 361
Cars — See Rolling Stock.
" Position of passenger cars Append, no
" Not to stand on Railway crossings ,. " 115
" " penalty for violation " 116
" " proviso " 116
" Penalty for placing baggage cars in rear of pass. cars. " 130
Cattle — Not to be at large near railway 403, " 1 20
" " such cattle may be impounded. ... " 120
" " no right of action in such cases 403, " 120
" Not to be allowed within fences " 120
" " exceptions " 120
" At large on the highways, injuries to 403
ANALYTICAL INDEX. 651
PAGE
Cars — Killed or injured on the Railway 396
" By-law allowing, to run at large 407
" Treatment of while in transit by rail or water Append. 157
Cattle Guards — Erection 260, " 89
' ' Omission or neglect to make " 90
" Responsibility for damage to animals. ..261, " 91
" Time for construction if land is occupied " 91
When company is exempt from liability. .263, " 91
At crossings — Absence of, injury to cattle 405, 406
" See Fences and Cattle Guards.
Change in line of railway may be made 79, Append. 56
" no change of terminus 79, " 56
Charter — Preference for Dominion 10
" Effect upon of delay in construction 74, Append. 36
" Power of Lieutenant -Govern or to cancel 74
Checks to be affixed to baggage 344, Append. 112
" Penalty for refusal 344, " 112
Children — Negligence 368
Claims of workmen, laborers, etc , against company or contractors,
etc. , when retained out of subsidy Append. 147
"Clerk of the Peace " — Meaning of " 6
Common employment 388
"Company " — Meaning of Append. i
Company — Cannot purchase its own stock, etc 16, Append. 123
" When liable for acts of President or Secretary 21
" When liable for reports of directors 26
' ' 1 .iable for libel of manager 28
' ' 1 .lability for acts of its servants 29
' ' When liable for negligence of contractors 30, 234
' ' When bound by acts of agent 33
" Powers of — See Powers.
" Liability of for fraudulent transfer of shares 46
" Not bound to see to trusts 48, Append. 32
" May not purchase railway securities 16, " 123
" " exceptions..... " 123
" " penalty " 123
" Not relieved from legal liability by inspection, etc. " 129
" Liability of in certain cases " 129
" See Corporation.
Compensation for damages by exercise of powe'S 85, Append. 41
" a bar to all further claim for damages 186, 238
" money — Claim against 211, Append. 76
Conductors — Duties of in regard to collection of fare and ejectment
of passengers 283, 284, Append. 1 1 1
652 THE RAILWAY LAW OF CANADA.
PAGE
Conductors — Powers of 28
Conservatory attachment by bondholders 1 20
Consignee — Rights of where goods damaged 311
Constitutional Questions 4, 8
Constables — Appointment of Append. 125
Oath to be taken " 125
" " form of " 125
" by whom administered " 126
Powers of " 126
General powers " 126
Arrest of offenders " 127
Dismissal of " 127
" effect of " 127
Record of appointment to be kept " 128
Punishment of when guilty of neglect of duty. . . " 128
"Constructed or to be constructed under the authority of any Act
passed by the Parliament of Canada " 9
Construction — Limitation of time for commencement and comple-
tion of work 73, Append. 36
' ' Result of delay, upon charter 74
" Partial 74 note (2)
Not to be proceeded with until plans made and de-
posited 77, Append. 6l
" " From the City of Ottawa " 80 note
" Of the Railway (See Contracts) 218
Contract — Breach of, Measure of damages 422
" " Criminal Law Append. 153
Contractors — Disabilities 22
" Negligence of — Liability 30, 225, 226 et seq.
" Purchaser of land for construction— payment — receipt,
title 232
" Liability of company for acts of 234
Contractors' men — Liability for injuries to 330
Contracts — With directors, by company .21 note (3)
" Power of head of company to bind it 21 note (3)
" For construction of railway 218
" " form of 218
" " Necessity for seal 218
" il Conditions and stipulations 225
" Engineer's certificate 227
" " Extra work 228
" " Quality of work 229
" Bond— condition — mutuality 229
'' Ratification — question for jury — repu-
diation of part 230
ANALYTICAL INDEX. 653
PAGE
Contracts — For construction of Railway — Condition precedent — inde-
pendent agreement 231
" ' ' Land grant subsidy 232
" " Specific performance 233
Contributory negligence 368, 37 1
Corporate seal — Necessity for 218 et seq.
Corporations — Powers vested in 1 1
" Members of— Liability 12, Append. 35
" See Company.
Costs — Of application for warrant of possession " 76
" Of proceedings in confirmation of title " 79
" Of arbitration 209, " 70
Coupons - 95> 113
" Interest on 113
" Place of payment 113-
" Suit upon U3
'« County " — Meaning of Append. 2
"Court"— " " 2
Criminal Law affecting railways " 153
" Criminal breaches of contract " 153
< ' Intentionally endangering the safety of persons
on the railway " 1 54
" Mischief on railways " '55
" Obstructing the construction or use of any
railway " 155
" Injuries to packages in custody of railways. . . " 156
" Forging tickets, etc " 156
" Obtaining passage by false tickets " 156
" Stealing on railways " 15&
" Stealing railway or steamboat tickets " 157
" Treatment of cattle while in transit by rail or
water " 157
Crossing other railways. . . .81 Append. 38, II and see Crossing infra.
' ' See Intersection of Railways
Crossings, etc — Farm 7, 255, Append. 87
1 < Accidents at 386
" Cost of fencing approaches to, Ry. Committee.Append . 1 1
" Approval of Railway Committee 263, • " 79
<: Notice " 79
«< By Street Railway " 80
<' Railway Committee may make regulations.263, " 80
" Necessary apparatus may be ordered to be
adopted 263, " 80
" Proportion of expenses to be paid by each
company " St.
•654 1'HE RAILWAY LAW OF CANADA.
PAGE
Crossing, etc. — Intersection of railways under prov'l. char-
ter 264, Append. 8 1
Highways .251, 253
Bells to be rung or whistle sounded Append. 1 14
Person to be stationed at 263, " 114
Electric railway crossings " 114
" Trains to be stopped at ...263, " 114
" " exception " 115
Foot passengers to use foot bridge if provided. " 121
" " penalty.. " 121
" Railways which cross Dominion lines are sub-
ject to Dominion legislation " 136
Neglect to ring bell at " 404
Approaches to 385
Accidents at. See Negligence.
Crown as a carrier 328
" Duly of as to boundary ditches 244
•Crown Lands — Power to take 137, Append. 46
Alienation of 137, " 41
Curator to substitution — Power of to convey lands 140 note (3)
Current earnings — See Earnings.
Damages — Measure of, neglect to transfer shares 46
" Caused by preliminary survey, prescription 75 note (4)
' ' Action for 82 note (2)
•'' Overflow of ditches 83 note (i)
Erection of snow sheds 84 note (2)
'•' Compensation for 85, Append. 41
To land, etc., incidental 139 note (3)
(See Arbitration — Land).
" For smoke, noise, etc 168, 170 note (4)
" To cattle on track 396, Append. 91
Through not using best appliances " 109
" Limitation of, action for 266,362, " 128
" what may be pleaded " 128
" For extortionate toll " 130
" Caused by construction of railway 238
" Compensation a bar to 238 et seq.
" Interference with ditches 238
" Surface water 239
" Quebec Law 242
" Obstruction and diversion of water courses 243
' ' Navigable water 244
~" Subsequent purchaser of land. 244
' ' Duty of Crown 244
ANALYTICAL INDEX. 655-
PAGE-
Damages — Interference with highways 245
" Common to al 1 248
" When not considered as included in compensation fen-
land taken 258
" Default 258
" Caused by reason of the railway 266 et scq.
" " Jurisprudence on the question 267 et seq.
" Continuing, limitation of actions in such cases 269
' ' For ejectment of passengers from cars for non-payment of
fare 283.
" Measure in such cases 289
" For delays in carriage of passengers 34 1
" Byfire 407
" " Evidence in such cases 413
" " Rule in Quebec as to damage by fire 414
" Measure of 418
" " contract of can iage of g;oods ., 418
" '• Breach of contract 422
" " Injuries to persons 424
" " " to cattle 426
Debentures — Municipal 90, 91, 92, notes
" Issue of 93, Append . 43
" Interest on 94, " 43
" Sale and pledge of 94, " 43
" Lien on or mortgage of property 94, " 44
" Registration 96,114, " 45
" Holders. See Bondholders.
" Transfer 96,114, " 45
" Stolen ill
" Negotiable instruments 112
Debts of railways subsidized by Province of Quebec Append. 146
Delay in carriage of passengers 339
" " of goods. See Carriers of goods.
" Department " — Meaning of Append. 2
" Deposit" of bonds 118
"Deputy " — Meaning of Append. 2
Desistment from notice of expropriation 189, " 72
Deviation of line 79, " 53
' ' not extension 80 note
Directors — Provincial, their powers 13, Append. 1 7
Election of 13,18 " 18, 23
" action to set aside 18 note (5)
" de facto 19
" Qualification 19, Append. 23.
656 THE RAILWAY LAW OF CANADA.
PAGE
.Directors — Mayor, reeve, etc., of municipal corporation when, 19, Append. 19
" Vacancies 20, Append. 23, 24
" Meetings of — notice ,. 21
" Contracting with the company — power to vote. ..21 note (3)
" Votes of 22 Append. 25
" " As shareholders 21 note (3)
' ' Subject to shareholders and by-laws 22 " 25
" Disabilities of 22 " 25
" Removal of 23
' ' As trustees 24
" Duties of 24
" Liability of 24
" Personally liable only when culpably negligent 25
" When not liable for error of judgment 25
" Joint and several 25
" How far knowledge of co-diiector is knowledge of di-
rector 25
* ' For false reports 26
" Compensation of 25
' ' Reports, liability of company for 26
" Powers as to transfer of stock ..... , 44
' ' May sell or pledge unissued shares 68
" May issue stock as paid up to contractors, etc . .68, Append. 20
" Liability for paying dividend out of capital 71
' ' Issue of debentures, bond, etc 93
" Votes at adjourned meetings Append. 23
" Terms of office " 24
' ' Quorum " 25
" Acts of majority binding " 25
" Shall make by-laws " 26
" " appoint officers " 26
" " cause annual statement to be prepared " 27
Ditches 83, " 39
Ditches and watercourses — Interference with 238
Dividends and interests — When declared 69, Append. 30
" Rate of 69, " 30
NeJ; profits, what are 69
" Not to impair capital Append. 30
" Payment out of capital, liability of direc-
tors for 71
" Interest may be paid on certain sums. Append. 30
Domicile of Company 12, " 17
Drafts — Acceptance by secretary and accountant 27
Drains, etc. — Power to make 82, 83, Append. 39
ANALYTICAL INDEX. 657
PAGE
Drains or other pipes — Power of Ry. Committee as to Append. 12
Earnings of the railway — Right of. mortgagees to 105, Append. 44
Easements — Injury to 185
Ejectment for non-payment of fare 283,287, Append, m
' ' measure of damages for 289
Electric light wires or poles 83, Append . 39
Eminent domain 136 et seq. (See Lands).
Employees — Safety of regulated by railway committee Append. 10
" Injuries to 388
Endangering safety of persons on railway Append. 154
Engine driver — Liability for manslaughter 28
Engine — See Rolling-stock.
Engineer — See Inspecting Engineer.
Engineer's certificate 227
Estoppel Refusal to transfer shares 46
Evidence — Notice of meeting as Append. 2 1
" of proceedings at meeting 17, " 98
" Certified copy of by-laws to be " 102
" of value of baggage , 344, " 112
" Admissibility of, notice of conditions on ticket 361
" Burden of proof in negligence cases 369, 402
' ' Presumption of negligence 370
" as to damage by fire. . . ., 413
Executors — Power to convey lands 140, Append. 62
" " limited in certain cases 141, " 63
Express companies to have equal facilities 279, " 109
" messenger — Injury to 329
Expropriation — See Forms.
" 136 — See also lands, also arbitration.
" Compensation a bar to all further claim for damages
186, 238
" Desistment from notice of 189
Expulsion of passengers refusing to pay fare 283 287, Append, ill
Extension of line not deviation 80 note
Extra land 144
Farm crossings ' 7, 255, Append. 87
" Rights as to Subdivision of lot 258, 259
" What included in the term 259
Federal and Provincial Acts 2
Fellow servants 388
Fences at crossings Append. 84
Fences and cattle guards 260, ' ' 89
" " Fastenings at hurdle gates 262, " 89
" " Omission or neglect to make fences. ....... " 90
658 THE RAILWAY LAW OK CANADA.
PAGE
Fences and Cattle Guards, —
•' " Responsibility for damage to animals.. 396, Append. 91
" Time for construction if land is occupied.. . " 91
" When company is exempted from liability 263, " 9!
" Fences at crossings " 91
" Gates at farm crossings to be kept closed 262, " 91
" Penalty for leaving gatei open 262, " 92
" Company not liable in such cases " 92
" Liabilit) to fence at common law 260
" Obligation to fence 260
" " in the province of Quebec. . .260, 261
" " Fences must be turned in to the cattle guards 262, Ap-
pend 9!
" Barbed wire 262
" Company not entitled to notice that fences are out of
repair 262
" Liability where cattle stray upon the track. 396 et seq.
" " Evidence as to defective 402, 403
Ferries — Obstruction to 184
Financing of railway com panics 87 et seq.
Fire — Damage by 407
" Remoteness of negligence. ... 409 et seq.
" Evidence as to damage by 413
" Rule in Quebec as to damage by 414
Force majeure — See Carriers of Goods— Carriers of Passengers.
Forgery of Railway tickets, etc Append. 156
Forms — Pay list under Stat. Que. 1893, ch. 36 " 150
" Claims of foremen, workmen, etc., against subsidized
railways in the Province of Quebec " 151
" For Government returns " 138
" Proceedings in expropriation " 161
" arbitration notice, surveyor's certificate and
notice of application to County Judge ....
Append. 162, 163
affidavit Append. 164
" notice to desist " 165
warrant from Judge of County Court. " 165
notice of application to Judge " 166
" appointment of third arbitrator " 166
" award " 167
agreement for right of way •' 167
" In Quebec ;' 168
arbitrator's award " 168
warrant of possession " 170
certificate of bank cashier " 371
ANALYTICAL INDEX. 659
PAGE
Forms — Proceedings in Expropriation
Special forms for Province of Quebec. Append. 172
" " notice of expropriation " 172
" " petitionfor warrant of possession. " 173
" " agreement to sell " 176
" " notarial deed of sale " 177
Franchise i
" May be revived 63, 64
. '? Mortgage of icx>
" Power to alienate 101
Freight charges — See Tolls.
" See Goods.
' ' False receipt 29
" Delivery to unauthorized agent 29-30, 314
Frogs — Packing 394, 396, Append. 1 16
Gas pipes— Power to divert 83, " 39
" Powers of Railway Committee as to interference
with Append. II, 12
Gates — At farm crossings to be kept closed 262, " 91
" Penalty for leaving open 262, " 92
" Defective fastenings — Liability for cattle injured in consequence
of 262
" Fastenings 262
" Hurdle gate?, when not in compliance with ttatute 262
' ' Maintenance of 262
" See Fences and Cattle Guards.
General Manager or Superintendent — Powers and dulies of 26
" " See Manager,
" Powers — See Powers.
Gifts — Power to receive 77, Append. 37
" Goods " meaning of , " 2
Goods — Sale of, in default of payment of tolls 200, " 106
" Sale of unclaimed 290, " 106
" Penalty for refusing to receive and convey « -log
recovery « IO9
" Conveyance of 293, " no
" right of action in case of neglect. . 293, '< no
" Dangerous. 293, " 112
" to be plainly marked « 112
" penalty for contravention " 112
" may be refused .., « u,
" carriage of such " n?
penalty for contravention. . " 113
' ' Obligation to carry 292
BB
660 THE RAILWAY LAW OF CANADA.
PAGE
Goods — Obligation to carry dangerous goods 293
See Tolls.
" See Lien.
" See Carriers of Goods.
Grand Trunk Railway Act and Railway Clauses Consol. Act 7
Gravel, etc., for construction 144, 145, Append. 52
Guaranteed and preferred stock — Dividends on 72
Guardians may convey land 140
Highways — Power to divert 82, Append. 39
" Meaning of word " 2
" Power of Railway Committee as to.... 245, 253, " n
" To be restored to former state " 41
" Crossings " 83
•" " railway not to be carried along highway
without permission of proper authority
245» 253, « 83
" Penalty " 83
« ' ' variation when crossing on the level " 84
*; " dimension of bridges over, 6° inclination. 253, " 84
;; " inclination of, at 253, « 84
" " fences 253, " 84
" costs thereof in certain cases 253, " 84
" " plan of to be submitted 253, " 85
" « powers of Railway Committee 254, " 85
" as to land required for " 85
••' Railway Committee may make regula-
tions 254, " 86
" Penalty for non-compliance " 86
" " time may be extended " 86
" signboard over 255, " 86
Interference with — Damages 245
Approval of Railway Committee 253
" Bridges connecting highways 255
Horses — Injuries to on track, 401, (and see Cattle.)
Hypothec — See Mortgage.
' ' of lands as security 94, note I
" Distinction between mortgage and 122
Hypothecary action 142, 143
' ' creditor 142
Immoveables — Rolling stock whether moveables or immoveables 107
Indian Reserve lands 138, Append. 47
-Injunction — To prevent meeting 16, note (6)
To enjoin directors from paying dividend 71, note (6)
To restrain company from operating road where land taken
without compensation 216
ANALYTICAL INDF.X. 66 r
PAGE
Injunction — To prevent interference with water power 243
Injuries — To servants 388 See Carriers of Passengers — See Negligence. .
' ' To packages in custody of railway Append. 156
" To persons, etc., on the railway track — See Negligence.
" " See Carriers.
" " Measure of damages for 424
' ' To cattle on the track 396, 403
' ' measure of damages for 426
" See Negligence.
" Inspecting Engineer " — Meaning of Append. 2
Inspecting Engineer — -Information to be afforded to '{ 15
" " To be conveyed by company " 15
" " Telegraph operator to obey tiis orders ... " 15
" " Proof of his authority " 16
" " Penalty tor obstructing " 16
Inspection of property of Company — Powers of Railway Com-
mittee as to " 12
" railway before opening " 92
" " Notice to Railway Committee before
opening. '• 92
" " Penalty for non-compliance " 92
" " Railway to be inspected " 93
" <f Postponement of opening if report is un-
favorable " 93
" " Penalty for opening contrary to order. " 94
" " Order not binding without copy of report " 94
railway out of repair " 94
" " Proceedings if part of railway is out of
repair •• 94
" " Defects to be made good " 94
" " If railway is out of repair at crossings,
notice is to be given " 95
" " Proceedings thereafter " 95
" " Inspection and proceedings thereupon.. "•' 96
" " Provision if company makes default .... " 96
" " Regulation of speed of trains " 97
" " " penalty " 97
«' " Running of trains may be prohibited in
case of danger f " 97
« " Penalty " 97
" " Report and action thereon " 98
" not to relieve company from liability " 129
Institutes under substitution may convey lands 140
66a THE RAILWAY LAW OF CANADA.
PAGE
Interest — On sums paid on shares in advance 51, Append. 35
" On bonds, debentures at 94? 95? " 43
' ' On coupons 113
" On award 188,189, 211
" May be paid on certain sums called up in respect of shares
Append . 30
" No interest on shares in arrear " 30
" On amount paid into court (under sees. 167, 170) 214, 215
Interpretation Append. I
Intersection of railways under provincial chatters 264, Append. 8l
" with other railways 8r, 263
International Boundary — Exercise of powers beyond 84, Append. 40
Intoxication a misdemeanor. " 130
" Penalty for selling liquor to emplojees " 130
"In Trust" 49
Intersection of railways 263, Append. 79
" " Approval of Railway Committee 263, 264
" " Decision final 264
" ' ' officer to be there stationed 263
' ' Street railway 263
" " Trains to stop at 263
" " "• proviso 263
' ' Constitutional questions as to 264
" Powers of Railway Committee in regard 10.264, 265
" Reference to Supreme Couit 265
" " Manitoba Railway Crossings case 265
" Issue of Bonds " 117
" Judge " — Meaning of See Append. 2
Junction with other railways Si, Append. 38
Jurisdiction of Courts — Cause of action 288
Jury trial — Questions of negligence ... 370
"Justices " — Meaning of Append. 3, 6
' ' Two Justices " 3
Justice of the Peace — Jurisdiction to hear and decide complaints
against railway 5, 6
Laborers — Claim of on subsidy of railway in Province of Quebec.
Append. 147
Lands — Title to — How affected by non-completion of woik.74, note (2)
' ' A wat d as a title to 212
" Compensation for, date from which to be ascertained.
76, note (7), see infra
" Premise of sale accompanied by possession 78, note (2)
' ' Agreement by directors to purchase 78 note (2)
" Unlawful occupation of — Remedy of owner in Quebec. 79 note
ANALYTICAL INDEX. 663
PAGE
Lands-~Power to carry railway across 79
" Acquired from the Crown or otherwise, power to sell.
85> !37> Append. 41
" Sale and hypothecation of , ... .85, 94 note (i) ; 100
' ' Power to alienate loo
<( Rightsof debenture holders as to 103, 104, Append. 44
" Reserved for naval or military purposes 138, " 47
" Belonging to another railway 138, " 47
" Contracts for purchase of, before deposit of map or plan.
»39, " 64
" Indian reserve 138, " 47
" Annual rent 139, " 65
" Incidental damages to , 139 note (3)
" Petitory action 139 note (3)
<« who may convey 140, Append. 62
" of minor 140 note (3)
" Power to convey limited in certain cases »I4I) Append. 63
" Title of company to 141, " 64
" Disposition of purchase money 141, " 64
* ' Specific performance of contract 141 note (l)
" Rectory, in Ontario 141 note (j)
" Agreement with proprietors, etc., after deposit of plan.
143, Append. 65
'' May be taken without consent 143, " 48
« Extralands 144, « 49
" Occupying for construction purposes 144, " 51
" Power to reach materials for construction 145, " 52
" " purchase whole property where better terms can be
secured thereby 145, " 53
' ' Immediate possession for materials required 145 note ( I )
" Taken without formalities required by the act 139 note (3)
145 note (2)
" Procedure in case of disagreement 146
" Notice of expropriation 146, ' ' 66
" Compensation for value of 154
« " " arbitrators, how to be guided in
making valuation 154
'< " " increa'sed value to remainder of land
154, Append. 69
« " " lands injuriously affected by the
construction of the railway 161
*< " " access to land ways and waterways. .
162 note (I) ; 163, 164, 165, notes 178
« « " nature of damages that may be con-
sidered by arbitrators 1 73
664 THE RAILWAY LAW OF CANADA.
PAGE
Lands — Compensation for value of, how estimated 175
" " " loss of business 184
" " " injury to business 184
" ' ' loss of privacy 184
" " " injury to franchises and ferries 184
" " " " easements 185
" " " injury to trees 185
" " a bar to all further claim 186
" Desistment from notice of expropriation 189 Append. 72
'• Meaning of word See Append. 3
" Power to enter, for surveys, etc 75, " 36
u " receive grants of 77, " 37
" purchase and sell 78, " 37
carry railway across , 79, ' ' 37
" Declaration as to powers with respect to 137, " 41
" Power to take and use land and materials defined and
limited " 46
" Vested in Her Majesty 137, '•' 46
" for specific purposes 137, " 46
" Extent that may betaken 143, " '48
" exception " 48
" Extra land 144
" Extra land to be shown on map or plan ' ' 48
" Public beach 137, " 49
" Proceedings for obtaining extra land for certain pur-
poses " 49
" Application to the Minister 144, •' 49
" Notice to owner and certificate to be transmitted to
Minister 144, " 50
" Minister may grant the application after enquiry " 50
' ' Deposit of copy of plan 144, " 50
" Powers of company on the granting of certificate. 144, '*' 50
'' May be acquired for constructing or repairing rail-
way 144, •• 51
" Deposit in such case 144, " 5 1
" If the whole parcel of land can be purchased with ad-
vantage 145, " 53
' ' Conveyance to the company 140, " 62
" Order of judge in certain cases 140, " 63
" Limitation of powers in certain cases ; .141, " 63
" Effect of sale 141, " 64
" Responsibility for purchase money 141, " 64
" Effect of contracts made before deposit of map. ...139, " 64
" Fixed rent may be agreed upon in certain cases. . 139, " 65
ANALYTICAL INDEX. 665.
PAGE
Lands — Fixed rent — lien for the payment thereof 139, Append. 65
" After ten days from deposit, application to owner. 146, " 65
" Arbitration in default of agreement 146, " 66
" Deposit to be general notice " 66
' ' Notice to the party, what it shall contain " 66
" Certificate of surveyor, what it shall contain 146, " 66
" Application for service by advertisement 147, " 67
" Certificate and affidavit to accompany application. 147, " 67
" " " notice 147, " 67
" Party not accepting offer and not appointing arbitra-
tor 147, " 68
" Appointment of arbitrator 147, " 68
" Arbitrators to be sworn 147, " 69
" " their duties , . 148, " 69
" Increased value of remaining lands to be considered..
154, " 69.
" Costs of arbitration by whom payable 209, " 70
" Examination of witnesses 149, " 70
" Evidence in arbitration to be taken down in writ-
ing I51, " 70
" Transmission of record in arbitration 151, " 70
" Time within which award is to be made 148, " 71
" Vacancy in office of arbitrator, how filled.. ,.... 152, " ji
" " no re-commencement of proceed-
ings 152, " 71
" Company may desist from arbitration on payment of
costs 189, " 72
" " new notice to be given 189, " 72
" Valuator or arbitrator not disqualified unless person-
ally interested 152, " 72
" When disqualification must be urged '1S2> " 73
" Award not void for want of form " 7,
" " form of " 192
" Appeal from award to a Superior Court 194, " 73.
" When payment or tender of sum awarded, possession
may be taken " 74
' ' Warrant of possession " 74
« " '• before award 216, " 75
«« " " " conditions .. ..216, " 75
" " " " security 216, " 75
" " " costs of proceedings " 76
« Compensation to stand in place of 213, " 76
« " payment into Court in certain cases .. '•' 76
« Confirmation of title 215, " 77
666 THE RAILWAY LAW OF CANADA.
PAGE
Lands — Confirmation of title — proceedings in Quebec Append. 78
" " special notice in such cases Append. 77, 79
distribution of compensation. .215, " 77, 79
" " costs, interest 215, " 78, 79
" Required for highway crossings under direction of
Railway Committee Append. 85
' ' Award as a title to 212
" Subsequent purchaser, right to damages for construction 244
" See also Arbitration. Arbitrators.
Latent defects — See Carriers of Passengers.
' ' Lease " — Meaning of word Append. 3
Lease of line — Effect of upon liability for accidents 260, 395
Liability of Carriers. — See Carriers.
members of corporation 12
" Liabilities " — Meaning of word .. 70
Libel— Liability of company for 28
Lien on railway — Power to give loo
' ' of unpaid vendor 106
" upon goods for freight charges 290
" nature of 290, et seq.
" general 292
Limitation of action for damages 266, 362, Append. 128
" " loss of baggage 362
" " meaning of words " by reason of the railway " . . . . 266
Limiting liability — See Carriers of Goods.
" " " Passengers.
" " Baggage.
Line — Charge in location of, Railway Committee 79, Append. 10
" Branch 80, " 10
' ' Location of, powers of Railway Committee " 1 1
" Use of " ii
" Walking on — See track.
Mail Carrier — Injury to ,. 329
Mails — Carriage of Append. 1 18
Majority — Powers of 12
Manager • ' 26
to pay for surgical attendance 27
Liability for manslaughter 28
Mandamus as a remedy to compel new election of directors 15
calling of meeting 19
" to compel transfer of shares 47
" company to perform statutory obligation 259
Manslaughter — Liability of officers for 2g
ANALYTICAL INDEX. 667
PAGE
Maps and plans 75, Append. 58
'" " meaning of Append. 3
" " See Plans.
Master and Servant — Negligence 388
" ' ' Volenti non fit injuria 391
" " Special provision for protection of employees. . . 394
Materials for construction of railway — Power to take .... 144, Append. 52
Measure of damages 418
" "in general 418
" " contract of carriage of goods . 418
" " breach of contract 422
" ' ' injuries to persons 424
" " " cattle 426
Mechanic's lien 106
Meeting of shareholders — Notice of 13, Append. 17
Meetings — Annual and special 16, " 20
" Notice of 1 6, " 21
" Proof of proceedings at . ...16, " 98
" Copies of minutes to be evidence " 98
" By whom called 16 and note (3)
" Irregularity of, effect of 17, 1 8
" Interference of Court 17, 23
" Special and general 1 7
" Adjourned. 18
" Of directors, notice of 21
" What business may be transacted at 16, Append. 21
" Majority to govern 1 6, " 22
" Notice by Secretary valid ' 98
Military forces — Carriage of " 1 18
" Lands 138, " 47
Mines — Expropriation 177
'•' To be protected Append. 54
" In Ontario Append. 54, 56
Minor — Alienation of lands of 140, note (3)
" Minister " — Meaning of Append. 3
Mischief on Railways — Criminal Law " 155
Municipal Corporations — Holding stock 15, Append. 18, 19
" " Subscription to shares .15 note (5)
" " Action by, for removal of obstructions.
82 note (2)
" " Bonuses 90, 91, 92 notes
" " Liability of, for railways interfering with
highways 164 notes
" " Rights of, as to highways 246 et seq.
668 THE RAILWAY LAW OK CANADA.
PAGE
Mortgage — Of lands as security for bond?, etc. (See Bonds).
94, Append. 44
Power to mortgage lands 9"
" Of franchise 100
" Distinction between Hypothec and 122
" Incumbrancer, rights of 214
" Deed — Penalties and working expenses to be a first charge..
95, Append. 44
" " Validity of " 44
' ' " Deposit of " 44
Mortgagees — Rights of 95, 103. (See Receivers).
" See Bondholders.
' ' Rights of, to earnings 106
" after acquired property 106
" Remedies of 142
Moveables — Rolling stock whether 107 et sej.
Naval or military lands 138 Append. 47
'•' forces, carriage of " 118
Navigable rivers — Navigation of, not to be impeded 244 " 82
" " Access to obstructed 182 183
" Bridges over Append. 82
" " " to be floored " 82
" " " plans to be approved " 82
" " " substitution of one form for
another " 83
" waters — Construction of works in, powers of Rail-
way Committee , " i r
" " Navigation not to be impeded 244, " 82
" Near " meaning of " 3
Negligence or the omission of the company or its servants. ... " in
" of contractors — Liability for " 234
Limitation of liability for negligence as carriers 296 342
" " generally, as carriers 302
" as carriers — See Carriers.
" Rule as to, in the provinces, other than Quebec 363
" Illustrations of remote negligence 364, 409 et seq,
" Subsequently developed injuries ^65
" Act of God 365
" Acts of agents and servants 365
' ' Non-performance of statutory duty 366
" Contributory negligence ,. 368, 371
" Injuries received while avoiding danger and inconveniences.
368
ANALYTICAL INDEX. 669
PAGE
Negligence — Children, etc ,„ 368
" Negligence of parents 69
' ' Intoxication >6g
" Burden of proof 369 .
" Presumption ot negligence 370
" The Court and the jury 370
u The law of negligence in the province of Quebec 371
" Injuries to persons on the railway track 378
" Cars allowed to stand for unreasonable time upon crossing. 385
" Injuries to employees 388
" Investigating accidents 396-
" Cattle killed or injured on the railway 396
" " burden of proof 402
" Cattle at large on the highway 403
Damage by fire 407
" " evidence in such cases 413
" rule in Quebec as to damage by fire 414
Net profits — What are 69
Notes given by company — Transferee for value . . 24
" in payment of calls on shares 66
Notice — Constructive 33
" of conditions on tickets, etc 343. 361
" of calls 64, Append. 82
" to trustees under mortgage deed 120-
" of expropriation 146, Append. 66
" of desistment from arbitration 189, " 72.
" of first meeting of shareholders 16, " 18
" of meetings " 21
" ofbranchline 8^, " 56
" by secretary valid " 98
Nuisance 82, note (2)
Oaths — Power of Railway Committee to administer Append.
Obstructing the construction or use of any railway "
Offences and penalties — Liability of company in cases specified "
" Damages for extortionate toll "
" Penalty for placing baggage cars in
rear of passenger cars " 130-
" Intoxication a misdemeanor " 130
" Penalty for selling liquors to em-
ployees......... " 130
' ' Punishment for violation of certain
by-laws " 130
670 THE RAILWAY LAW OF CANADA.
PAGE
Offences and penalties — If injury is cmsed or risk of injury
is increased Append. 131
Penalty limited. . " 131
Deduction of penalty from wages. ... " 131
Penalty for violation of by laws gen-
erally " 131
" Exception " 131
Punishment of persons catting or
boring casks or packages " 131
Drinking and wasting liquor '•' 132
" " " penalty " 132
Offices of company 12 and no '.e (4), " 17
Officers — See President, Manager, Agents.
" Disabilities of 22
'•' Powers and duties of 26
' ' Liability for manslaughter 28
" To be appointed by directors Append. 26
Oil cups 394, " 116
Opening of the railway — Notice to Railway Committee be1
fore r. ad is opened 270, " 92
" Penalty for non-compliance. .. .270, " 92
" Railway to be inspected 270, " 93
" Postponement of opening if repo:tis
unfavorable 270, " 93
Penalty for opening contrary to order " 94
" " order not binding without
report 271, " 94
Company not liable as common carrier be-
fore opening — when 272
Operation of the railway 270
Opposition afin de distraire — Grounds of. 79 note
*l Owner " — Meaning of word 142, Append. 3
•"Packing" — Meaning of " 116
of frogs, etc 394, " 116
" of wing and guard rails 394, " 116
'•' " proviso 394, " 116
Paid-up stock — Issue of 68, 87 note, 88 note
Passengers — Power to carry and fix tolls for carriage of.. . .84, Append 40
" Conveyance of 322, '< no
" Right of action in case of neglect. . " in
Payment of fare 282, " n i
Refusing to pay fare, expulsion ....283, " in
Injury to, while standing on platform, etc .. 330, " m
ANALYTICAL INDEX. 671
PAGE
Passengers — Tickets issued on conditions 286
' ' Coupons tickets 287
Rights <. f holders as lo the several lines. 287
" Measure of damages in case of expulsion 289
Obligation to carry 292^
See Carriers of Passengers.
" Baggage — See Carriers of passengers' baggage.
Penalty — When rents ani revenues a first charge for payment
of 95, Append. 44^
" For obstructing inspecting engineer " 16
Penalties imposed by Railway Committee <<r 10
" See Offences and Penalties.
Personal bapgage. — See Carriers of passengers' baggage.
Petitory action 1 30, note_(3)
Plan — See also Map and Plan.
" Deposit of 76, Append. 58
" Notice of 76. " 65
" Correction of errors or omissions 76, " 60
" Alterations in 77, " 60
" Construction not to be proceeded with until plan made and de-
posited 77, Append. 6 1
" Acces-s to copies " 59,
" Ceitified copies to be evidence.. " 59, 61
" Certificate relating theieto " 60-
" Custody of copies by registrar of deeds " 61
" A map or plan of the completed railway to be filed at
the Department " 62
" penalty for i egh ct " 62
" Scale and paper " 62
Plans and surveys 75, " 58
" surveys and levels " 58
Pledge — Distinction between, and deposit as collateral security 116
Police regulations — Statutory regulations when regarded as 257
Powers vested in corporations 1 1
" of company may be revived by Legislature , 74
" general .73, Append. 36
" extraordinary 75
" Survey 75, Append. 36'
" Maps and plans 75, " 58
" Deposit of plan 76, " 58
" Notice of deposit of plan 76, " 65
" corrections of errors and omissions 76, " 60
" To receive gifts and bonuses 77, " 37
" To purchase, take and sell land 78, " 37
•672 THE RAILWAY LAW OF CANADA.
PAGE
.Powers To carry railway across lands 79, Append. 37
'.' Deviation, etc., of line 79, " 53
'•" Branch lines 80, " 56
" To fell trees across railway 8l, " 38
" To construct works on, across or under railways, streamSj
highways, etc . 81, Append. 38
" To make sidings, etc " 52
" To cross, unite, etc., with other railways 81, " 38
" To divert streams and highways 82, " 39
' ' To maintain and repair railway " 52
" To interfere with electric light wires or poles. . . .83, " 39
gas pipes ..83, " 39
" " telephone poles or wires 83, " 39
" To work railway by any mechanical power, etc... 84, " 39
" To erect buildings , 84, " 39
<• To carry passengers and fix tolls, etc 84, '•' 40
' ' To employ particular carters 84 note (6)
" To exercise powers beyond boundary line 84, Append. 40
"' To sell lands acquired from the Crown or otherwise.85, " 41
" To issue bills and notes 91, " 46
" bonds and debentures 94, " 42
" To borrow and mortgage 97, " 42
" To give lien on railway and alienate lands 100
' ' To alienate franchise 101
i; To take material for construction 144, 145, Append. 52
'' Notice in case of arbitration 145, " 52
" May be exercised in the United States "84, " t-o
" See Lands.
Preferred stock 88
President — Election of 20, Append. 24
" Powers of 20
" Taking a mortgage for the company 21 note (2)
'•' Not always agent of company 21 note (2)
Absence of at meetings may be entered in minutes, Append. 27
Prescription — See Limitation of actions.
Privilege — See Lien.
Privileged claim for annual lent 139, Append. 65
Promissory note and bills — Power to issue 91, " 46
Provisional directors and their powers and duties 13, " 17
Provincial legislation may be confirmed 9, " 136
Public beach — Right to occupy 137, " 46
Punishments — See Offences and Penalties.
Quebec Railway Act amendments Append. 146
Quo warranto — Vr hen it lies .... I c
ANALYTICAL INDEX. 673
PAGE
Quorum 17, Append. 25
" How affected when amalgamation with another company....
note (l) 17
Rails — Seizure of by creditors of railway 109
' ' mortgagees 97 -9 9
Railway Accident Act of Ontario 394, 395, 396
Railway Act, 1888 (Dom.) — See Constitutional Questions.
" " text See appendix 1-145
" " sec. 306, effect of 9
" " Application of. 4, Append. 6
" " Sections which may be made ap-
plicable to any railway within
the legislative authority of Par-
liament 5, " 9
" Railway " — Meaning of " 4
" Operation of. 270
" Opening for traffic 270
" Out of repair 271, Append. 94
" Company not liable as carriers before opening the line
for traffic — when , 272
" Committee's jurisdiction exclusive in matters of traffic
agreements 281
Committee's jurisdiction over highways 245
" Obligation to carry goods and passengers. — See Carriers.
" Seizure and sale of 101, Append. 124-147 151
" Sale of subsidized " 146
" Obstructing and interrupting free use of 386
' < The franchise I
" Who may construct and operate 1 , 3
'• Incorporation n, Append. 16
" " jurisdiction of Provincial Legislature and
Dominion Parliament „ . . 2-4
" " constitutional questions 4
" Purchase of. ... 4, Append. 124
" Charter, preference for Dominion 10
" Construction of , 218
" " Limitation of time for commencement
and completion 73, Append. 36
" " Effect upon company or charter through
delay in 74
" " Partial 74 note (2)
" Charter, cancellation by Lieutenant-Governor 74
" May be worked by any mechanical power or elec-
tricity , 84, Append. 39
6-J4 THE RAILWAY LAW OF CANADA.
PAGE
Railway — Inspection of — See Inspection.
" Opening of — See Inspection.
" Repairs — See Inspection of railway out of repair.
" Working of — See Working of Railway?.
Which are declared works for the general advantage of
Canada .Append. 136
To be subject to legislative authority of Parliament " 136
" Certain acts of Provincial Legislature may be
confirmed " 136
" Effect of such confirmation " 136
Railway companies cannot purchase their own stock 16, Append. 123
'' See Company.
" Railway Committee " — Meaning of. Append. 4
Of whom consists " 9
Secretary.. " 10
Powers Append. 10-15
" Decision of may be made older of Court Append. 13
" Decision of may be reviewed " 13
Cases may be stated for opinion of
Supreme Court " 13
Decision of final " 13
" appeal to Governor in.
Council " 13
" ' Costs of proceedings before "' 14
Promulgation of order of " 14
" Publication of orders and decisions
of " 14
Authorization of as to crossing, etc.
highways 245, 253
Jurisdiction exclusive in matters of traffic
agreements 281
Jurisdiction in matters of highways 245
Railway Constable — See Constable.
Raising money 1 16
Rates— See Toll?.
Ratification , . 33
' ' of acts of officers 21
Receivers — Appointment 125
Quebec Law 126, Append. 147
Louisiana 128
'• France , 1 29
Ontario 129
" As to tramways or street railways 130 ncte (5)
In what cases appointment will be made '. 131
ANALYTICAL INDEX. 675
PAGE
Receivers —Duties and powers 132
Division of income 134
Extraordinary outlay . . , 135
Payment of right of way 135
Subsidized Railways in Quebec Append 147
Remote negligence — Illustrations of 364, 409 et seq.
Rents and revenues — When first charge for payment of penalty ; 95,
Append 44
Repair — Railway out of .271
Repairs — See inspection of railway out of repair.
Reports may be ordered to be made by Railway Committee. . . Append. 1 1
Returns — See Statistics.
" Form of Append. 138 et seq.
Revendication by bondholders 120
Right of way — Powers of Railway Committee with regard to.. Append. lo
" — See Eminent Domain
Riparian proprietors — See Lands.
Rivers— Power to divert 82, Append. 39
" Access to — Interference with 181, 183
" See Navigable Rivers.
Rolling stock — Whether realty or moveables 107
" Rights of bondholders with regard to 96 note (i), 107
Roads — See Highways.
Rules and regulations — See By-laws, Rules and Regulations.
Sale of land acquired from the Crown and otherwise 85, Append. 41
" Promise of, followed by possession , . , 78 note (2)
Sale and pledge of bonds and debentures 94
Sale of unclaimed goods 29°> Append. 1 06
Application of proceeds 29°> " 1Q6
" Disposal ot unclaimed balance. 290, " 106
Sale of goods in default of payment of toll 290, " 106
Sale of railway lor
" To purchasers not having necessary corporate powers. . .
Append. 124
Notice to the Minister " 124
1 ' And copy of deed of conveyance " 124
" " Until such transmission trains
not to be run " 124
" " Provisional operation of railway " 124
" " License from Minister " 124
" " Application for necessary powers " 125
" " Extension of license " 125
" " Final action " 125
For debt, where subsidized in Province of Que-
bec " 146
CC
676 THE RAILWAY LAW OF CANADA.
PAGE
Seal — Necessity for in corporate contracts 218
Secretary — Disabilities of 22
' ' Power to accept drafts , 27
Securities of other railway companies not to be purchased by rail-
way companies 16, Append. 123
" Exceptions " 123
Seizure of railways 102
in Quebec 102, Append. 147
Sequestrator, appointment of in Quebec 126, 129, " 147
" Louisiana. , 128
' ' France 129
Sequestration of subsidized railways in Province of Quebec.,. Append. 147
' ' See Receiver.
Servants to wear badges '...., " in
Sewer pipes —Power of Railway Committee to interfere with
disputes concerning " 11-12
Shareholders — Liability of 12, 51, " 35
" First meeting of 13, " 17
" " Notice of '•' 18
'' Votes of 14, " 21
Right to injunction to forbid meeting 1 6 note (6)
" Actions by creditors against 51
" " Execution against the company. . 52
" Wheie it arises 52
" How action should be com-
menced 53
" " Defence of payment 53
" " Cessation of company. .. 54
" " non-performance of con-
ditions 54
" " irregularities in organiz-
ation 55, 63 note (4)
shares remitted to Co. . . 56
" shares acquired as paid
up 56, 68 note (4)
'• No notice of allotment. 56
" " " Never a shareholder... 56
" " Change of capital 57
" " " Difference between
memo, of association
and prospectus 57
" " " Ultra vires 58
" '• " Fraudulent misrepre-
sentation 58
Forfeiture 58
" « Agency 59
ANALYTICAL INDEX. 677
PAGE
Shareholders — Action by creditors— defence — Transfer " 59
" " Defective service 59
" " No contract 59
" " " Set-off 60
Position of with regard to bondholders 96
Meetings, annual and special 16, Append. 20
Votes on shares 14, " 21
May vote by proxy 15, " 21
" Majority to govern 16, " 22
Penalty for refusal to pay calls 66, " 33
Aliens to have equal rights " 36
" Record of " 36
interpretation of word 1 16
' ' See Calls
Shares — To be $ loo each 13, Append 1 7
" Subscription to before organization. ... 35
" " after " 37
Difference between English system and that
in vogue in this country 33
" " Entering amount subscribed without con-
sent of subscribers 39 note (4)
Conditional 40, 54
Payment in services and supplies 41
" When repudiation too late 41
Special 41
Other cases 41
" Effect of statutory change , 41
" Transfer, formalities 42, Append . 3 1
" When complete ,.. 42
" " Form of 42, Append. 31
" " as to paid up shares " 31
" " Right to 42
" " Evidence of 42 note (2)
" " With object of reducing capital stock, void 43
' ' " May be made to pauper 43
'' " " to insolvent 44 note (6)
" '• Fraudulent, liability of company for 46
" " Measure of damages for neglect to 46
" " Mandamus to compel 47
" Transmission otherwise than by transfer 48, Append. 32
" " Wills, notarial copy 48
" «« " probate 48
" Transfer of shares held in trust 48, Append. 32
" " Meaning of " in trust " 49
678 THE RAILWAY LAW OF CANADA.
PAGE
Shares — Transfer of shares held in trust — Want of authority or power in
the transferor 50
" Succession duty unpaid 50
" Interest on sums paid in advance 51, Append. 35
" Forfeiture cumulative to all other remedies which creditors
entitled to 63
" " For non-payment of calls 66, Append. 34
•' Formalities for declaring. . .66, 67 notes (i), (2)
" Not sole remedy for non-payment of calls
66 note (3)
Where shareholders deceased 66 note (3)
" Effect of 67, Append. 34
" Cannot be used to relieve shareholders from
liability 67
" Forfeited — sale and pledge of 67 note (3), Append. 34
" Certificate of Treasurer to be evidence of forfeiture
and title of purchaser , " 34
" Unissued, sale of , 68
" " " at discount 68
" Paid up, issue of , 68
" Preference 88
" Fully paid up, agreement to pay in 87 note (3)
" Paid up 87, 88 note,
" Votes on 14, Append. 21
" Personal property " 32
" Certificate of proprietorship to be evidence " 33
" Sale without certificate , " 33
" Of other railway companies not to be purchased by
railway companies " 123
' ' " Exceptions , " 1 23
" See Stock.
" See Capital stock. See Calls. See Shareholders.
" Sheriff" — Meaning of " 4, 6
Sleeping Car Companies — Liability for passengers' baggage 357
Snow fences — Erection of Append. 53
Removal " 53
Snow sheds — Damages for erecting 84 note (2)
Sparks from engine — Liability for damage by 407
" Special Act " — Meaning of Append. 5
Special and General Acts 6
" rates.— See Tolls.
" train, ordering 340
Specific performance of contracts 233
ANALYTICAL INDEX. 679
PAGE
Speed of trains and locomotives in cities Append. 115
in cities shall be regulated by Ry. Committee. " 10
Station — Agreement to erect 78 note (2), 91 note, 93 note
Station agents 29
Stations — Alighting at. — See Carriers of passengers.
Statistics — Interpretation of word " company " . . . Append. 132
" Annual returns to be prepared " 132
" " How to be attested '• 1^2
" What period to be included " 132
" Duplicate for Minister " 132
Further returns when required " 133
" " Penalty for non-compliance " 133
Returns to be submitted to Parliament " 133
'• Weekly returns to be made " 133
" Copy to be posted up " 134
Penalty for non-compliance " 134
" Penalty for signing false returns " 134
" Returns of accidents to be made ,... " 134
" " Cause and nature " 134
Locality and time " 134
Extent and particulars " 134
Copies of by-laws. " 134
Form of may be prescribed. . . " 135
" Penalty for not transmitting. . " 135
Returns privileged communications " 135
Steam whistles — Regulation of by Railway Committee " 10
Stock — Who may hold , 15, " ig
' ' Subscription to 35
" Allocation by provisional directors 13, Append. 17
" Preferred 88
" Increase of 89, Append. 18
" When and how municipal corporations may take " 1 8
" Paid up may be issued in certain cases 68, " 20
" See Shares.
Stock books to be opened by provisional directors 13, Append. 1 7
Stolen bonds 1 1 r
Stones, gravel, etc., for construction 145, Append. 52
" Stop, look and listen " — Rule not applicable to Canada 384
Stoppage in transitu.... 315
Streams — Power to construct railway across 81, Append. 38
" Diverting 82, " 39
" To be restored to former state " 41
Street railways — Power to interfere with 82 note 2
68o THE RAILWAY LAW OF CANADA.
PAGE
Street — Right of access to — interference with 163 notes, 178
" Sewers, etc. — Powers of Railway Committee as to. . .Append. II
" — See Highways.
Succession duty — Transfer of shares — liability of company 50
Subsidies and bonuses 90
Subsidized railways — Debts of Append. 146
Superintendent — See General Manager and Superintendent.
Supplies for maintenance of Ry. — Nature of no
Supreme Court — Railway Committee may state case for Append. 13
Opinion of, decision final " 13
Surveys 75, Append. 36
" Preliminary, prescription of, damages caused by... 75 note (4)
"—See Plans.
Surface water — Damage caused by 239
" Taking " — What constitutes a 257
Tax on share transfers 50
Telegraph line — Power to construct 83, Append. 39,118, 119
Poles to be restored to former state " 41
Operators to obey orders of inspecting engineer " 15
Government to have use of telegraph if required " 118
May be constructed by Government " 1 18
Telephone poles and wires — Interference with 83
" To be restored to former state Append. 41
' ' Line — Power to construct 83
Tenants in tail or for life may convey lands 140 Append. . 62
Terminus and depot — What they include 78 note (2)
" Right of Can. Pac. Ry. Co. to build their road beyond
Port Moodie 79 note (2)
' ' No change of allowed Append . 56
' ' The Undertaking " 103 " 5
Thistles — See Weeds.
Tickets — Right of company to charge I o cents extra where tickets
purchased on cars 282
' ' Issued on conditions ; 287
Notice of conditions .... 343, 361
" Coupon 287
" Rights of holder as to the separate lines 287
" Forging Append. 156
" Obtaining passage by false tickets " 156
" Stealing " 157
" Act respecting the sale of railway passenger tickets . " 159
" See Passengers.
Timber — Cutting down 8 1, Append. 38
ANALYTICAL INDEX. 68 1
PAGE
Title to land — Award as a 212
Proceedings in confirmation of 215
" Land purchased by contractor 232
Tolls and income 105
Tolls — Enforcing payment of, for carriage of goods 289, Append. 105
" Company may sell goods for freight charges 290, " 106
" Unclaimed balance in such cases 290, '•' 106
" Lien for, upon goods carried 290,
" Generally 273, Append. 102
' ' By-laws fixing 273, 28 1
" Undue discrimination 273, 275, 276, 277, Append. 105, 103
" Common law as to 273 note ( I )
" Special rates 274,310, Append. 105
" Secret special rates prohibited ...275, " 105
" Approval by Governor in Council, etc 281, " 103
li Effect of absence of by-law 281, 282
" Fractions of distance and weight ,282, Append. 104
" Collection of 282-289
' ' Rates to be posted up 282, Append. 104
' ' Passengers may be ejected for non-payment , 283
1 ' Power to fix 84, Append, 40
" When subject to privileged claims for land taken 139
" Meaning of Append. 5
" Regulation of by Railway Committee " n
" How fixed " 102
" Classification of freight -" 103
" For service as common carrier " 103
" Revision of by-law fixing " 103
" To whom payable " ' 105
" Enforcement of payment of 289, " 105
" Sale of goods in default of payment 290, " 106
" Sale of unclaimed goods for 290, " 106
" " Application of proceeds. . .290, " 106
" " Disposal of unclaimed balance 290," 106
" Extortionate — damages for " '130
Toll bridge — Interference with rights of 164 note
Track — See Line.
" No person to walk on Append. 121
" " " Penalty " 121
Traffic — Meaning of " 5
Traffic arrangements — Powers of Railway Committee as to ... " 1 1
" Interchange of traffic 278, " 107
Approval of Governor in Council . 278, " 107
682 THE RAILWAY LAW OF CANADA.
PAGE
Traffic arrangements — Facilities to be afforded in respect of
traffic 278, Append. 107
" No undue advantage 278, " 107
"' As to continuous line of railway " 108
'•' Agreements in violation void 278, " 108
Penalty for refusal to convey and re-
ceive goods " 108
" Penalty for recovery and application . . " 109
" Equal facilities to Express companies
279, " 109
" Generally 277, " 107
" agreements between companies as to
278, « 107
" consent of stockholders. 278, " 107
" "to be published in Canadian Gazette.
278, Append. 107
" " approval by Governor in Council. 278, " 107
" Sec. 240 only applies to agreements between
railway companies 279
" Express companies . . . .279, 280, 281, Append. 109
" Railway Committee's Jurisdiction exclusive. 281
Train — Ordering a special 340
" What constitutes, within meaning of sec. 52 R. S. C., ch. 109.. 385
'•' Appliances for stopping 386, Append. 109
" Regulation of speed, in railway out of repair " 97
" " " Penalty " 97
." Running of may be prohibited in case of danger. 272, " 97
" " Penalty 272, " 97
" To be run at regular hours " no
' ' To stop before passing swing bridge " 113
" '•' Exception " 113
ei Delay 339
" Speed of, in cities 378, Append. 1 15
" Moving reversely 379, " 115
" " penalty " 115
" Overdue " 117
" duty of station agents when " 117
" " " penalty " 117
" Copy of section to be posted up. ..., '•' 117
" Wrongfully entering " 121
Tramway Company — Court can appoint a manager or receiver over. . .
1 30 note (5)
Transhipment of freight — Powers of Railway Committee as to. Append. 1 1
Trees— Power to fell Si, " 38
" Compensation for damages to 154 note (2)
" Injury to , 185
ANALYTICAL INDEX. 683
PAGE
Trusts — Company not bound to see to 48, Append. 32
" " proviso '« 32
Where company deal in stock held in trust for their own bene-
fit 49
* Meaning of words " In trust ."..... 49
Trust Deeds 122
Trustees 119
" for bondholders 95
" notice to 120
" as common carriers 120
" who are 121
'' powers of, to convey lands 140
" " limited in certain cases 141
Tunnels — See Bridges and Tunnels.
Tutors may convey lands 140
" Undertaking, The " 103, Append. 5
Ultra Vires— Effect of Ill
Undue discrimination or preferences — See Tolls — See Traffic.
United States — Powers may be exercised in Append. 40
Unpaid vendor's lien 106
Vendor — Lien of unpaid 106
Vice President — Election of 20, Append. 24
Powers of 21
" When shall act 21, Append. 27
Volenti non fit injuria 391
Votes of shareholders 14, Append 21
" proxies 15 and note (4), " 22
Warehousemen — See Carriers.
Warrant of possession 215, 216, Append. 74
" •' before award 215, " 75
" " conditions for granting of * " 75
Water-Courses — Interference with 238, 243
Water Pipes — Powers of Railway Committee as to interference with
Append. 1 1
" Power of Company to divert or alter " 39
Weeds to be cut down " 122
" " penalty for non-compliance " 122
" " mayor may cause work to be done " 122
" application of penalty " 122
Witnesses — Power of Railway Committee to compel atten-
dance of ..Append. 12, 13
' ' Examination of by Arbitrators 149
Working expenses take precedence of right of bondholders 95, Append. 44
" " meaning of " 5
DD
684 THE RAILWAY LAW OF CANADA.
PAGE
Working the railway — Best appliances for communication and stopping
trains to be used 386, Append. 109
" " penalty " 109
" " " liability for damages 386, " 109
" Bells and whistles " no
« " Position of passenger cars '< no
« '•' Trains to be run at regular hours. .339, " no
" " Conveyance of passengers and goods 294, " no
« " Right of action in case of neglect. .293, " in
" Servants to wear badges " in
" Expulsion of passengers refusing to pay
fare 283, " ill
" " Injury to passengers standing on plat-
form, etc 330, " in
" checks to be affixed to baggage. . . .344, " 112
" " penalty for refusing to affix checks. 344, " 112
'• evidence of value of baggage 344, " 112
" " dangerous goods 293, " 112
" " " to be plainly marked. . " 112
" " penalty " 1 12
« " " maybe refused " 113
" " " carriage of such goods .. " 113
" " trains to stop before passing a swing
bridge " 113
" " exception in cases of interlocking
swit ches -.... " 113
" " Bell to be rung or whistle sounded at
crossings 379, " 114
" Penalty " 114
" " Person to be stationed at crossings. 386, " 114
" " Electric railway crossings " 114
" " Trains to stop at crossings 3^6, " 114
" " " " exceptions... " 115
'< " Rate of speed in cities 378, " 115
<' " As to trains running reversely 379, " 115
" " " " penalty... " 115
" " Cars not to stand on railway crossings.. " 115
a n te '< "
penalty " 116
" " proviso " 116
" " Packing of frogs 394, " n6
" " " " and of wing and guard
rails 394, " 116
" " Oil cups 394, " 116
Workmen— Claims of, when to be retained out of subsidy .... " 147
0
BINDING SECT. <W *
HE Abbott, Henry
2803 A treatise on the railway
1896 law of Canada
A6
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