the judgment of Mr. Justice Gwynne.
This appeal was heard at the same time as the appeal *PRESENT-Sir W.
(1) Ont. App. R. 306.
in Clouse's case, the same counsel appearing for the parties respectively.
Rwy. Co. Sir W.
.J.-I agree with Mr. Justice Patterson that the right of the plaintiff is to have the ERwin. state of things which has existed for the last ten years Ritchie C.J. maintained, unless and until the company shall proceed under the statute to acquire a right to do what they now propose to do.
I am of opinion that the appeal should be dismissed. GWYNNE J.-This case differs from that of Clouse against the same defendants in this that an agreement was reduced to writing by the solicitor of the company which was witnessed by him and signed by Mr. Tracey at the time that Smith, the then owner of the land of which the plaintiff is now proprietor, executed a deed granting to the defendants the land taken for their railway on lot No. 12 in the 9th concession of Townsend, this agreement is as follows:- The Canada Southern Railway Company by John Avery Tracey, their duly constituted agent for the purchase of right of way, do hereby agree with James H. Smith, the owner of lot twelve in the ninth concession of Townsend, his heirs and assigns as follows:- The said Smith having gold to the said company the right of way over lot number twelve in the ninth concession of the Township of Townsend, containing four acres and seventeen hundreths of an acre at and for the price of one thousand six hundred and fifty dollars and having given a conveyance to the said company for the same, it is hereby, notwithstanding such conveyance, agreed between the said parties that for the period of five years from the date of this agreement the said Smith, his heirs and assigns shall have possesion, undisturbed by the said railway company, of the woodshed and ground on which it is erected at the rear of his house and on the right of way so conveyed, and the fence of the said railway shall be so constructed as to leave a passage of at least five feet wide for the use of the said Smith, his heirs and assigns between the said woodshed and the railway fence and the said fence shall run from a point five feet south of the south-easterly corner of the said woodshed in a straiglit line to the south-easterly corner of a barn now standing it that part Gwynne J. This instrument was signed by Tracey and witnessed by Mr. Kingsmill, the solicitor of the company. When the agreement was produced Smith objected to it as insufficient in not providing for a cattle pass and other things which he insisted had been agreed upon, accordingly Mr. Kingsmill wrote on the back of the said agreement a further clause which was also signed by Tracey and witnessed by Mr. Kingsmill, which is as follows:it part that the that the No case for the reformation of this agreement so as to make it an agreement for a perpetual cattle pass under the railway at the place in question, whatever might be the character of the superstructure, has been established in evidence.
The plaintiff's right, therefore, to recover in this suit must depend upon the construction of the agreement as it stands.
The parties to the agreement must be regarded as being the best judges of what it was they were intending to provide for. Now it is to be observed that the pass spoken of in the agreement is not a "farm crossing," which, as I have already said in Clouse's case, is, in my opinion, a convenience which, unless a proprietor of lands severed by a railway accepts pecuniary compensation for being deprived of, or voluntarily releases his right thereto, is a necessity for the use and enjoyment of the severed lands which the law provides for apart from any contract. The language of the agreement is that- All that such language can be construed as providing for is a passage for cattle only, and that conditional upon there being a trestle bridge of sufficient height to permit of such a passage. This agreement so conditioned cannot be construed as depriving the company of the right to discontinue the trestle bridge, which was erected as a temporary structure, and to construct an embankment in its stead unless they shall construct a cattle pass in the embankment.
The agreement does not contemplate that there should be provided a cattle pass under an embankment. As, then, the " cattle pass " can only be claimed under the written agreement, the obligation of the company, which is to construct their fences so as not to impede the passage of cattle under a trestle bridge if such should be erected of sufficient height so as to permit of the passage of cattle under it, cannot have any binding effect if and when the trestle bridge shall no longer exist. The two things are very different, namely, constructing fences so as to permit cattle to pass under a trestle bridge, and constructing an arch, of sufficient dimensions to permit the passage of cattle under an embankment, the cost of which work might be in excess of the whole value of the severed lands. The plaintiff's statement of claim in this case should, in my opinion, have been dismissed with costs, but such dismissal would not operate against any claim, if any, which the plaintiff may have under the law for such farm crossings or farm crossing, as may be necessary