Pion v. The North Shore Ry. Co.

June 20. COMPANY (DEFENDANTS)..........

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE.)

APPEAL from a judgment of the Court of Queen's Bench for Lower Canada (appeal side) (3) reversing a W. J. Ritchie C. J. and Strong, Fournier, Henry, Taschereau and Gwynne JJ.

(2) M. L. R. 1 Q. B. 346,

(3) 12 Q. L R. 203.

YOL. XIV.]

judgment of the Superior Court by which the appellant's action was maintained.

The appellants sued the respondents jointly with the Quebec Harbor Commissioners in damages for $50,000. In the Superior Court the respondents were condemned to pay them $5.600.

Are the respondent's legally responsible for the damages is the main point in the case, and the only one on which the judgment of the court of appeal has turned. This involves two questions: 1. Has the riparian proprietor of a navigable river a right of access to such river?

As to the question of law whether the riparian proprietor has a right of access to a navigable river, I submit that he has, 1st. under the common law the province of Quebec, 2nd, under a special statute of that province concerning water courses.

According to the old French law which is the common law of Quebec on that point, navigable water courses are in the nature of public highways, they are, according to Pascal's celebrated saying: des cienins qui marchent.

Again a party whose property borders such a highway, cannot be deprived of free access, of ingress to it and egress from it, without a special warrant of law. OR See Bell v. Corporation of Quebec ; Mayor of Montreal v. Drummond ; Brown v. Gugy ; Renaud v. Corporation of Quebec

Consolidated Statutes of Lower Canada, ch. 50;

If, as we contend, the respondents could not, without special authority, deprive the appellants of their right of access to the river, what is the nature of the authority that was required?

The only authority was a statute, not only expressly giving them the power to do what they have done, but further expressly enacting that they could exercise such power without paying any damages.

See Bell v. Corporation of Quebec cited above.

Now, what is the special law invoked by the respondents as their authority for what they have done ? 1st. The statute of Quebec, 44-45 Vict. ch. 20 which, they say, gives them power to pass their line where it has been located.

2d. The statute of Quebec, 43-44 Vict., ch. 43 sect. 11, which authorises any railway company whose line is legally located on any beach to use it without indemnity to the crown.

Neither of these statutes gives the respondents the authority which they required.

The evidence shows that the appellants have been deprived by the respondents of the access which they had to the river St-Charles; that they have suffered thereby heavy damages, and if the law of the province' of Quebec is as I have contended for, the judgment appealed from should be reversed and the judgment of the superior court restored.

3rd. That the Quebec Consolidated Railway Act, 1860, neither contemplates, nor provides for, compensation for damages of this nature.

4th. That at common law (i. under the Civil Code of Quebec) the appellants have no claim against the respondents, by reason of the facts set forth in their declaration.

5th. That the English decisions relied on by the Superior Court b ave no bearing on the case inasmuch as they all.deal with the interpretation to be given to an Imperial Statute, " The Lands clauses consolidation " Act, 1845," (8-9 Vic. cap. XVIII, sec. 68) which forms no part of our law.

6th. That the only remedy the appellants had.was by arbitration, under the statute, and not by action. 7th. That no proof has been made in the cause which would entitle the appellants to indemnity, even under the Imperial Act (8-9 Vic. ch. 18), as construed in the numerous cases determined under it ; and they cited and relied-on to the following authorities:- The Quebec Consolidated Railway Act, 1880, sections 5, 7,9 ; 22 Vic. ch. 32, secs. 1 and 2; 25 Vict., ch. 46, sec. 1; 56 Vic. ch. 62. secs. and 16 ; Civil Code, articles 407, 503 and 1589 ; Code Napoleon, articles 546,644.

Laurent, Droit Civil (1) ; The Caledonian Railway Co. v. Ogilvy (2) ; Penny v. South Eastern R. R. Co. ; Chamberlain v. The West end of London 8. Crystal Palace Railway Co. (4); Ricket v. The Directors, 4c , of the Metropolitan Railway Go. (1) ; 'T1e Queenv. Vaughan and the Metropolitan District Railway Co. (2); The Queen Po v. the Metropolitan Board of Works (3); The Duke of Buccleuch v. 'Te Metropolitan Board of Works (4) ; The Directors, 4-c., of The Hammersmith and City Railway Co. v. Brand the Duke of Buccleuch v. The Metropolitan Board of Works (6); McCarthy v The Metropolitan Board of Works The Metropolitan Board Works v. McCarthy (8); Demolombe (9); Pardessus (10); Zachariae (11); Sirey Rec. des lois et arreIs Dalloz, Rec pr (13); Dalloz, Rec. per. (14); Dalloz, Rec. per. (15); Brown v. Gugy (16); Sourdat (17); Governor, British Cast Plate Manufacturers v. Meredith, et al. (18); Dungey v. Mayor, 4-c., of London (19); Ferrar v. Commissioners of Sewers in the City of London (20) ; Jones v. Stanstead Railway Co. (21) ; The Mayor, Montreal v. Drummond (22).

Sir W. J. RITCHIE G.J. concurred with FOURNIER J. STRONG J. was of opinion that the appeaf should be allowed.

FOURNIER J.-Les appelants avaient en premier lieu 6tabli leur fabrique de m6gisserie sur la rue St. Valier, dans la cit6 de Qu6beo, mais aprbs quelques ann6es, leur industrie ayant pris une extension consid6rable, ils se virent forcs de chercher un terrain plus 6tendu et offrant de plus grands avantages pour les op6rations Q.

Q.

J.

de leur industrie et de leur commerce.

Dans ce but p ils firent 1'acquisition du terrain qu'ils occupent actuel- .

lement sur les bords de la rivibre St. Charles dans le quartier St. Roch de Qu6bec, et y 6rigarent A grands frais une bAtisse consid~rable pour y exercer leur in- J. dustrie.

Une des principales raisons qui les engagea A faire le choix de cet endroit 6tait, ainsi qu'ils l'alliguent dans leur action, celle d'utiliser la rivibre St. Charles pour laver les peaux et les laines; pour s'approvisionner d'eau A l'int~rieur de la manufacture pour recevoir le bois, le charbon et les approvisionnements, ainsi que les matibres premieres n6cessaires A leur manufacture et pour 6couler les produits de leur manufacture.

En 1883, la compagnie intim6e en cette cause construisit pour le passage de son chemin de fer dans la dite rivibre St. Charles, en face de la propri6t6 des appelants, un quai d'une hauteur d'environ quinze pieds, fermant compltement aux appelants l'accs A la dite rivibre et rendant l'exploitation de leur manufacture plus difficile et plus dispendieuse. En cons6quence ils ont demand6 par lour action la d6molition du quai en question et une condamnation A des dommages et inthr~ts.

L'intimbe a plaid6 A cette action par d6fense au fonds en fait seulement.

Les faits de cette cause soul~vent les questions suivantes: lo Le quai construit par l'intim6e pour le passage de son chemin de fer a-t-il priv6 les appelants de leur acc~s A la rivibre ?

En est-il r~sult6 des dommages et A quel montant ? 30 L'intim6e 6tait-elle autoris6e A faire cette construction sans payer une indemuit6 aux appelants pour les dommages qu'elle leur causait ?

Sur le premier point, il est incontestable que la construction du quai a eu 1'effet de priver les appelants d'un accs direct de leur propri6t6 A la rivibre et vice versd. La preuve ne laisse aucun doute-A ce sujet. Ce fait 6tant 6tabli, on ne peut mettre en doute, je crois, que l'intime s'est rendue coupable de violation du droit appartenant h tout propri6taire riverain de communiquer directement par son fonds avec la rivi6re qui le borde.

Fournier J. Pour 6tablir ce droit dii riverain il n'est pas necessaire, je crois, de r6f~rer A d'autres autorit6s qu'd celle de la d6cision du Conseil Priv6 dans lacause de Bell v. Corporation of Quebec, oi ce droit d'accas du riverain sur la mame rivibre (St. Charles) a fait le sujet d'un examen approfondi.

Apr~s avoir passe en revue la d6cision dans la cause du Maire de Montrial v. Drummond il s'agissait des droits d'acc~s et de sortie appartenant an proprietaire d'une maison situde sur une rue, le jugement d6clare :

it accs," Ce droit d'acc~s, comme on le voit, est admis sans restriction; mais leurs Seigneuries 6tant d'avis que le droit de Bell n'avait pas 6t6 viol6 et que la constiuction du pont dont il se plaignait ne lui avait caus6 aucun dommage, rejetirent sa demande, tout en admettant le droit du riverain.

Dans le cas actuel, les appelants ne se plaignent que de l'obstacle mis h leur droit d'accs et non pas d'obstraction a la navigation.

Au contraire de Bell, ils out fait une preuve claire et positive des dommages r~sultant de la privation de leur droit d'acc~s.

Quant au montant des dommages, fix6 A $5,000, par 1'hon. juge qui a d~cid& cette cause en premiere instance, il est amplement justifi6 par la preuve qui a 6t6 faite et doit stre confirms, A moms que l'intim6e ne fasse voir que par une exemption sp6ciale en sa faveur, les principes maintenus par le Conseil Priv6 ne lui sont pas applicables.

C'est sa pr6tention et pour ainsi dire son seul moyen de d6fense. Au soutien de cette pr6- Fournier J. tention 1'intim6 invoque les statuts de Qu6bec, 45 Vic., ch. 20 et 43 et 44 Vic., ch. 43, comme 1'autorisant A se servir de la grxve de la dite rivibre pour le passage de son chemin de fer sans payer d'indemnit6.

La 17e section de l'acte 45 Vic., ch. 20, a d6clar6 1'Acte des chemins de fer de Qu6bec de 1880 applicable i la compagnie intim6e.

Parmi les pouvoirs donn6s par ce dernier acte aux compagnies de chemins de fer, a la sec. 7, ss. et on trouve qu'elles sont autoris6es avec le consentement du lieutenant-gouverneur en conseil A se servir de

La ss. donne le pouvoir de construire, entretenir et faire fonctionner le chemin de fer, i travers, le long ou sur toute rivibre, cours d'eau, canal, grand chemin ou chemin de fer qu'il croisera ou touchera; mais la rivire, cours d'eau, grand chemin, canal on chemin de fer ainei crois6 on touch6 sera remis par la compagnie en son premier 6tat, on en un 6tat tel que son utilit6 n'en soit pas amoindrie, etc.

Les termes de ces deux sous-sections ne s'6tendent pas 6videmment au delA d'une permission donne aux compagnies de 'se servir des graves publiques sans enfreindre les droits de la couronne A cet 6gard. n'y est fait aucune mention des droits incontestables des particuliers sur ces m6mes grives, et on ne peut pas pr6tendre que la permission donn6e par le gouvernement en ce qui le concerne sp~cialement peut 6tre interprte comme an6antissant les droits des particuliers sur ces mimes grves.

Le texte de ce statut ne va pas aussi loin que l'intimbe le pr6tend; il ne fait nullement allusion aux particuliers dont les droits sont rest6s intacts. De plus cette permission n'est accord6e qu'd la condition que 1'utilit6 de ces rivibres, J. cours d'eau, etc., etc., n'en sera pas amoindrie.

Cette dernire condition de ne pas diminuer 1'utilit6 des rivibres et cours d'eau n'est-elle pas une restriction suffisante pour la protection des droits des particuliers et ne fait-elle pas voir que c'est 1'intention de la loi qu'ils ne puissent 6tre viol6s sans indemnit6.

Toutefois, je crois que la loi n'avait pas pour but de les atteindre parce qu'il aurait fallu pour cela une d~claration formelle et positive qui n'existe pas.

En supposant m~me que cette loi affecte les droits des particuliers, il faut remarquer qu'elle n'a pas accorde d'une manibre absolue la facult6 dont il s'agit.

Au contraire elle a mis A son exercice une condition importante qu'il faut pr6alablement remplir et sans

1'accomplissement de laquelle la loi est sans effet.

Ainsi il faut avant de se mettre en possession des grives en obtenir la permission du lieutenant-gouverneur en conseil en vertu de la loi de Qubbec.

La 16gislation f~d6rale A cet 6gard est identique avec celle de la province de Qubbec. L'acte consolid6 des chemins de fer de 1879, 42 Vic., ch.'9, contient la clause suivante, ss. 3 de la section Ire des pouvoirs:

Il est 6vident que la loi exige comme condition pr6alable de l'exercice de la facult6 accord~e aux compagnies de chemins de fer, de faire usage des greves, l'obtention d'une permission sp6ciale du lieutenantgouverneur en conseil de la province de Quebec et du J.gouverneur en conseil de la Puissance.

Dans la pr6sente cause l'intimbe n'ayant ni allgu6 ni prouv6 qu'elle avait obtenu cette permission soit du lieutenant-gouverneur de Qu6bec soit du gouverneur-g6n6ral en conseil, comment peut-elle se privaloir du privildge accord6 par ces lois sans avoir accompli la condition A laquelle il est accord6 ?. N'est-elle pas dans ce cas clairement coupable d'avoir viola sans justification quelconque les droits des appelants comme propri6taires riverains? La loi 6tant ainsi, les autorit6s cit~es pour 6tablir que l'ouverture de voies nouvelles sur le domaine public ne peut donner aux parties 16s6es le droit de r~clamer des indemnit6s, n'ont aucune application aux faits de cette cause, puisque les droits du riverain ne peuvent 4tre affecths tant que le gouvernement n'a pas donn6 de consentement. Dans le cas m~me le consentement requis aurait t6 donn6, je ne serais pas prit A admettre qu'il n'y aurait pas lieu A indemnite parce que la d6cision du Conseil priv6 dans la cause de Bell v. La Corporation de Qubbec me parait avoir d6cid6 le contraire.

Quoi qu'il en soit, cette question ne peut s'61everici, car la pr6tendue autorisation invoqube n'a pas t6 accord6e.

Le fait que les appelants ont pris une action ordinaire au lieu de recourir A 1'arbitrage d'aprbs l'acte des chemins de fer, leur est oppos6 comme une admission qu'ils n'ont aucun recours en vertu des dispositions sp6ciales de l'acte des chemins de fer. Je crois que 1'hon. juge Casault a r6pondu d'une manibre tout A fait concluante A cette objection. Dans ses notes sur cette cause, apres avoir pass6 en revue les principales d6cisions des cours d'Angleterre au sujet des indemnit6s en cas d'expropriation, il termine par les remarques suivantes:

PON Les juges en Angleterre, et la chambre des lrds, comme tribunal * en dernier ressort, ont maintenu, dans le6 trois causes sus-men Ry. tionnhes et dans plusieurs autres qui sont cit~es, que lea termes injuriously affected, dans les lois sus-cit~es, comprenaient tous les cas ou, sans l'autorisation accord~e par le parlement, les ouvrages Vournier J. fails, eussent donu6 une action. J'ai en les rapportant, d6montr6 que ces termes des statuts imp6riaux ont leurs coriespondants dans l'acte des chemins de fer de cette province, et que tout dommage caus6 A la proprit. par les compagnies de chemin de fer, dans l'exercice d-s pouvoirs que leur conf~re la loi, doivent Atre pay6s par elles. Le statut provincial (N et suivants de la sect. d6termine le mode 1 suivre pour 6tablir lea compensations que lea compagnies doivent payer; mais, dans le cas ou elles ne l'ont pas adopt6 on suivi, il ne prive pas lea proprietaires des recours que leur donne le droit commun mame section).

La section de l'acte des chemins de fer r6servant aux int~ress6s le recours aux tribunaux ordinaires me parait tellement importante que je crois devoir la citer en entier (1) :

Si la compagnie a pris possession d'un terrain ou fait des travaux ou en a enlev6 des mat6riaux sans que le montant de la compensation ait t convenu ou d6cid6 par arbitrage le propri6taire iu terrain ou son repr6sentant pourra prochder lui-mime i faire faire l'estimation da terrain on des matkiriaux pris, et ce, sans prejudice des autres recours en loi, si la prise de possession a eu lieu sans son consentement.

I est 6vident que cette section donnait droit aux appelants d'adopter la proc6dure qu'ils ont suivie et que leur action est bien port6e.

En r6sum6je suis d'avis en me fondant sur la d6cision du Conseil priv6 dans la cause de Bell v. La Corporation de Qu6bec que les appelants comme propri6taires riverains out incontestablement droit A une action pour la violation de leur droit d'accs A la riviere St. Charles, bordant leur terrain; que 1'autorisation invoqu6e par la compagnie n'existe pas, et que sans la preuve de l'autorisation des gouvernements de Quebec et de la Puissance, de se servir de la (1) 43 et 44 Vic. ch. 43 sec. 9 as. 37.

gr~ve, les lois a ce sujet n'ont pas d'application et ne peuvent justifier la violation des droits de particuqu'enfin que les dommages sont prouv6s que l'appel devrait tre allou6 avec d6pens.

Hei a.

concurred with

J.-Under 22 Vic. ch. 32 (1858) as amended by 25 Vic. ch. 46 (1862) that part of the river St-Charles where the tide ebbs and flows, and consequently the locality in question in the present case, is within the limits of the Harbor of Quebec. Consequently under the authority of Ho!man v. Green by which, I presume, we are bound in this court, the ownership of the beach opposite the appellants' property is vested in the federal government. This being so, there is no statute either federal or provincial applicable to this case, under which an Order in Council could issue for the purpose of authorising this company to construct their railway on that beach, for the Quebec Railway Act of 1880, clearly does not and could not authorize a railway. company to take possession of the property of the Dominion, and the Dominion Railway Act of 1879 does not and could not apply to a provincial railway, of which character the North Shore Company was when they took possession of the beach in question (39 Vic. ch. and up to the 23rd May, 1883 (46 Vic. ch. 24 D.), neither could the Quebec act of 1882 (45 Vic. ch. 20) authorize the company to take possession of this beach. It is obvious that the Quebec Legislature could not dispose of the property of the Dominion. The question of an order in council, either federal or provincial does not therefore arise.

It, moreover, was not open to the appellants under the terms of their declaration, and, even if open in the Superior Court, is not open to them on this appeal from the terms of the formal judgment of the Court of

Queen's Bench, which declares that the appellants have not in that court contested the company's right to have "NOUTF their railway on the beach in question.

In the view I take of the case, however, this is quite immaterial.

The appellants must fail, whether the company is a trespasser on this beach or not, if they do not show a title, or a right to use it-for the purposes of their trade. They have no locus standi to complain of an encroachment of the company on their neighbour's property, if the company by their works have not deprived them of any of their rights. So that the only question to be determined is: What are the appellants' rights to that beach for the purposes of their trade, whether the company is lawfully in possession of it or not ? This question has, in this case, to be determined upon the civil law of the Province

Quebec.

The appellants base their action on a right of servitude which, as they allege, the law gives them on the beach opposite their property. They claim that they have a special, and necessarily an exclusive, right as riparian owner to use that beach for the purposes their trade.

The Quebec Court of Appeal has decided that they have no such right, and in that decision I unhesitatingly concur.

It is by sufferance only that the appellants have been using that beach for the purposes of their trade up to the time of the building of this railway. They had no more rights there than the public had. If when they established their factory they had obtained from the crown a grant of that beach lot, they would not have been exposed, without full compensation, to the damage they now suffer. But they now claim without a title the same rights they would have had with a title. According to their contention it would be perfectly unnecessary for a riparian owner to obtain a grant of the beach lot opposite his property. Their position as riparian owners, they claim, gives them on that beach all the rights apatent from the crown would. This contention is, in my opinion, utterly unfounded. The riparian owners on navigable rivers have no special rights either on the beach or on the rivers. Laurent The wharf that the appellants had built in front of their property, below the high water mark, without a grant or license from the crown, was an encroachment on the public domain, which the crown could have put a stop to at any time.

says Demolombe

The riparian owner, in the Province of Quebec, has no exclusive right to the grant by the crown of the beach lots opposite his property. This was determined long ago in Reg. v. Baird and never has been doubted since, that I am aware of. I draw particular attention to the remarks in that case Meredith J. than whom no higher authority on the law of the Province of Quebec can be quoted.

The crown could therefore have conceded this beach lot opposite the appellants' property to any third party who would have been at liberty to erect on it a wharf, or a dock, or an elevator or any building whatever, and the appellants would have had no claim for compensation for their severance from the river.

In the United States, where from the case of Stevens v. Paterson and Newark RR. Co. (4), 1 gather that the law is precisely the same as in the Province of Quebec on the subject, this doctrine was, in that case, directly applied. The facts of that case were exactly as they are here, that is to say, a railway company had built its road along the bank of a navigable river, below high water mark, thus cutting off the riparian owners from the benefits incident to their property from its contiguity to the water. The question was whether they were entitled to compensation.

The court held that they were not; that the titles of owners of lands bordering on tide waters ends at high water mark, that below the ordinary high water mark, the title to the soil is in the state;. and that the riparian owner has no rights beyond high water mark, as against the state or its grantees. The Chief Justice, in his remarks, said :

Such is the law of the Province of Quebec.

It is precisely what was also declared to be the law of England by the Court of Appeal in Chancery in Lyon v.

Fishmonger's Co. where the court held that they had been unable to find any authority for holding that a riparian proprietor where the tide flows and re-flows has any rights or natural easements vested in him similar to those which have been held in numerous cases to belong to a riparian proprietor on the banks of a natural stream above the flow of the tide

This holding, it is true, was reversed in the House of Lords ; but this merely shows the difference between the law of England and the law of the Province of Quebec on this subject, a difference which the

Privy Council in Bell v. The Corporation of Quebec (3) ;

in reviewing that case of Lyon v. Fishmonger's Co.

seemed to recognize.

The Ontario case of The Queen v. The Buffalo and

Lake Huron Railway Co (4) is no authority; it is not law here. A judgment of the highest tribunal France in- 1865, in re Joarne Rousseray (1) on a case in point leaves no doubt on the subject.-There the claimant had bought for the special purpose of having the use of the river (a navigable one) a lot bordering on that river. The State constructed on the river immediately opposite the claimant's riparian lot public works, by which the claimant was deprived of all access to the river from his lot. He therefore claimed damages. The court of first instance dismissed his claim, and on appeal to the conseil d'etat, this judgment was confirmed.

"'Considering, says the judgment dismissing the appeal, that by the construction of public works on navigable rivers, the State.owes an indemnity but to those of whom a right of ownership has been affected by the works: Considering that the works in question have not affected any inherent right of the claimant as riparian owner, &c."

The doctrine that a riparian owner on a navigable river has not an inherent right of access to the river could not receive a more decisive sanction. In that case it is true the claimant had still access to the river, not from his lot, but some way down the river. But in the present case also, the plaintiffs have still complete access to the river.

They have not been deprived of their droit d'accs de sortie referred to in Montreal v Drummond and in Bell v. Corpora'i n o/ Quebec above cited.

They still have access to the river. Besides the tunnel which the company has opened in the embankment their road for their special use, there is a public highway running alongside their property leading to the river, and through this, they have, with the public, all that the public have, that is to say, all that they can claim as of right. All the damage they suffer from IVOL. XIV. the construction of the road, is that the access to the river is rendered thereby for them longer or more

Foz difficult.

Now, the cases under the French law are clear, that, under these circumstances, the appellants have no locus standi.

I refer to the cases of Re Daube (1) ; Re Darnis Re Crispon (3); Re Hubie (4).

In Re Daube the court held that works which cause inconveniences to a property do not give a claim for indemnity to the owner.

Re Darnis and Re Hubie are in the same sense as the decision of the Privy Council in Drunmond v. Mntreal.

In Re Crispon, the railway had been built between a quarry where the claimant got his limestone and his lime-kiln.

The claimant claimed damages from the fact that by the railway works the road from his quarry to his lime-kiln was lengthened, and because he would have to cross the railway to communicate from one to the other.

Damages refused.

I also refer to the case of Ville de Paris (5).

And Sourdat says:- 6tablit,

The appellants have referred us to that class of cases, as Brown v. Gugy and Bell v. The Corporation of Quebec where it has been held that an action lies for a public nuisance at the instance of any private individual who has suffered special damages thereby.

Not mere damages, but special damages. But these cases have clearly no application here.

We have also been referred to the class of cases in the Province of Quebec, where the rights of riparian proprietors on a navigable, but non-tidal, river have been discussed.

These also are obviously quite distinguishable.

On such rivers there are no beach lots belonging to the crown.

The cases also on non-navigable rivers, such as Miner v. Gilmour are also distinguishable. On these rivers, the riparian owner is proprietor of the bed of the river adfilum aqute, subject to the restrictions imposed by the law on the use of these waters. Boswell v. Denis

I am of opinion that the judgment of the Quebec Court of Appeal by which it was held that the appellants have no right of action should be affirmed. But, even if the appellants would have had their action at common law they cannot succeed, because under the statute their right to a compensation and of action has been taken away, 1st, because the only damages they claim are damages to their track and business, for which, under the statute, they are not entitled to compensation, and 2nd, because, even if they had a right to compensation, their only recourse under the statute is by arbitration and not by action. On the first of these propositions, I cite Lord Blackburn in Caledonian Ry. Co. v. Walker's trustees, which would, if done without authority from the legislature, have given rise to a cause of action.

And it must, I think, also be now considered as settled that the construction of these statutes is confined to giving compensation for Ry. an injury to land or an interest in land; that it is not enough to show that an action would have lain for what was done if unauthorized, but it must also be shown that it would have lain in respect of an injury Taschereau to the land or an interest in land.

J. Now, that by their action the damages claimed by the appellants here are merely those to their trade and business is clear.

Their declaration, after alleging their title to their property, and that they purchased it because of its advantageous situation for the purposes of their trade,.the price paid being one thousand dollars as appears by the deed of sale fyled with their declaration, goes on to say that they have built thereon at a cost of $30,000 a large factory for the purposes of their trade, and that the railway company have since illegally built their road between their property and the river, so as to render their access to the river impossible.

They then allege that in consequence of the said railway works

Les demandeurs ont t mis dans l'impossibilit6 d'avoir acc~s de leur dite propri6t6 A la dite rivibre; que la navigation sur celle-ci, vis-A-vis de la dite propri6t6 a 6t obstrude et rendue impossible; que lexploitation de la manufacture des demandeurs a t rendue beau.

coup plus difficile et beaucoup plus dispendieuse, et que tant pour les causes susdites que pour d'autres causes connexes et en r6sultant les demandeurs ont souffert et continueront de souffrir des dommages et que les dommages d6j& soufferts sont au montant de cinquante mille piastres, laquelle somme les d6fendeurs refusent de payer aux demandeurs bien que dfiment requis de ce faire, les d6fendeurs refusant aussi de faire disparaitre le dit quai et la dite obstruction dans la dite rivibre St-Charles.

And they pray for $50,000 damages.

Not a word that their property has been injuriously affected,.that it has decreased in value, in consequence of the works. Nothing but personal damage, damages for personal inconvenience and to their business, which as they allege, up to the date of their declaration,

VOL. IIV.]

amounted to $50,000, but which they will continue to suffer in the future.

The sum claimed alone, coupled , .

with these allegations, leaves no doubt as to the nature of their claim.

For the proposition that for such damages no right to a compensation lies, and that the subject of compensation, where no part of the claimant's land has been taken, must not be of a personal character but must be damage or injury to the land itself, considered independently of any particular trade, I refer to the following additional cases: Caledonian Railway Co. v. Ogilvy (1); Reg. v. Metropolitan ; Hammersmith Railway Co. v. Brand (3): City of Glasgow Union Railway v. Hunte (4); Ricket v. The Metropolitan (5);

Metropolitan Board of Works v. McCarthy

In Reg. v. The Metropolitan Board f Works (1) coinpensation was refused, though the execution of the works prevented access to the river for the purpose drawing water; and in Rex v. Bristol Dock Co. (8), .though the river was dammed back by the execution of the works, and the water was thereby made less pure, brewers who had been in the habit of using the water were refused compensation.

I refer also to Rex v. London Dock Company (9) and Benjamin v. Storr (10).

In France, also, the same principle prevails -In re Le Balle (11), held, that the damages caused to the claimant in the course of his business do not entitle him to an indemnity.

To entitle him to an indemnity, the works must injure his property directly and materially.

The case of the Duke of Buccleuch v. The Metropolitan R. 2

(9) 5. A. &

Board of

Works is distinguishable on various grounds, besides the difference between the English law and the French law on the subject First, the case was determined on special clauses of Imperial acts of a much wider import than the corresponding ones in the Quebeo railway act of 1-80, or not to be found at all in the latter. 'I he meaning of the word land " itself, in the Thames Embankment Act under which the claim was there made is of a much wider import than that of the same word in the Quebec Act.

Secondly, in that case, a part of the claimant's property had been expropriated, whilst here not an inch of the appellants' property has been taken or touched by the company.

And the cases show what an important difference this constitutes.

Thirdly, the damages awarded to the claimant were for damages to his property, not for personal damages, or damages to any road.

Fourthly.-The damages awarded for a severance of the claimant's property from the river had arisen from the construction of works necessary, exclusively

I might perhaps say, under an Imperial Statute relating to works on water fronts, and providing for compensation for damages resulting to the riparian owner from severance from the water.

Upon these authorities the appellants are not, in my opinion, entitled to compensation for the damages they claim in the present action.

I now pass to my second proposition on this part the case, that is, even if the appellants were entitled to compensation, their action does not lie, and their only remedy was by arbitration under the statute.

That this railway has been built under the statute is unquestionable.

And it has been built under the statute as well for the 30 or 40 feet opposite the appellant's property, as for the rest of the 170 miles between Quebec and Montreal, even if for that part of beach it had not ab initio the express consent of its owner the crown.

As long as its owner allows the company to have and maintain their road there, the appellants cannot question their title.

As regards any one else but the crown, the company is lawfully in possession, and for that reason, no doubt, the Superior Court, though awarding some compensation to the appellants, dismissed that part of their conclusion by which they asked for the removal of the railroad from the premises.

Now, that the only remedy under the statute is by arbitration admits of no doubt. In all the cases I have cited, this proposition is incessantly repeated. I refer also to Lloyd on Compensation, (1); also to two cases in the Privy Council from the Province of Quebec directly in point, Jones v. Stanstead (2) and Drummond v. Montreal cases, which clearly are binding upon this court, though, as would appear by Mr. Justice Ramsay's remarks in this case, not considered by the Court of Appeal, to be binding upon them.

To resume, I say that in my opinion:- 1st. The appellants had no right to compensation at common law;

2nd. That, even if they had such right at common law, they are not, under the statute, entitled to any compensation for the damage to their trade and business as claimed;

3rd. That, even if they were entitled to such compensation, their action must fail, as their only recourse was by arbitration under the statute.

J.-I am of opinion that the appellants under the provisions of the railway act, in virtue of which alone the respondents could legally have constructed the work in question, are entitled to recover iH in some form of proceeding for such damage as their property situate on the banks of the river St-Charles can be shewn to have suffered, by reason of free access between the appellants' property and the navigable waters of the river being obstructed by the work in question.

The point has been so decided in the courts of the late province of Upper Canada at Toronto, in 1864, in

Regina ex rel. Widder v. the Buffalo and Lake Huron

Railway Co (1) and the principle upon which the appellants' claim for compensation rests appears to me to have been affirmed, incidentally only it is true, by the judgment of the Privy Council, in Bell v. The Corporation of Quebec ; although, in that case, the court held that in point of fact the plaintiff's right had not been violated.

It has been contended that the plaintiffs' declaration in the present case is not framed as a claim for such damage but only for damage done to the plaintiffs trade and that it was only for damages for injury to plaintiffs' trade that judgment was given by the learned judge of the superior court by whom the case was tried. I have been unable to see the foundation upon which this contention is based for the plaintiffs in their declaration expressly allege:- Que par suite de Ia dite permission ainsi accord6e par les Com. missaires du Havre de Qu~bec, et de l'usage qui en a fait comme susdit par la Compagnie du chemin du Nord, les demandeurs ont miS dans Pimpossibilit6 d'avoir accs de leur dite proprikte A la dite rivi&re; que la navigation sur celle-ci vis-A-vis de la dite propri~t6 a obstrude et rendue im; assible.

Uwynne J.

Then the learned judge of the Superior Court in pronouncing judgment uses language which, as it appears to me, very clearly shows that it is for damage to the plaintiffs' property by reason of such access being obstructed and not for injury to the plaintiffs' trade that he has given judgment in their favor. He says: Consid&rant que Ia dite d~fenderesse n'a pris pour son chemtin aucune partie du terrain des demandeurs ni aucuns ma6riaux sur icelni, mais que pour construire son dit chenin de fer elle a 6rig6 sur la grave de la rivibre St. Charles qui borne la propri6t6 des demandeurs au nord, et qui A cet endroit est navigable un quai et un terrassement qui 6tent & . a (lite propri6te des demandeurs 1'acobs Aladite riviere et leur enlkvent unedes voies de coummunication qu'ils avaient auparavant.

Consid6rant que la privation de cette voie fait subir A la propri4t6 des dits demandeurs une dbtbrioration et une diminution de valeur permanentes et pour lesquelles ils ont droit A une indemnit6 qui d'apr~s la preuve parait se monter A cinq mille cinq cents piastres, condamne la dite d~fenderesse A payer aux dits demandeurs la dite somme.

Whether the sum awarded be or not open to the imputation of being excessive it is, I think, clear from the above language that it was for the obstruction of free and uninterrupted access between the property and the navigable waters of the river, and injury and diminution in value thereby occasioned to the property that the damages were awarded and not for injury to plaintiffs' trade, and the learned judge's notes which accompany his judgment are expanded largely to the same effect.

The defendants in the Superior Court appear to have placed their defence at the trial in argument, though not upon the record, upon the contention that the land upon which the structure complained of has been SUPREfE COURT OF CANADA.

erected was the property of the commissioners of the Harbor of Quebec and that the defendants constructed their railway on such property by the authority ofTE the said commissioners, although they seem to have RY. failed in establishing the latter proposition. The learned judge in his notes acempanying his formal judg- Gwynne J. ment says upon this point:- La d4fenderesse a invoqu6 les statuts constituant la commission du flAvre comme donnant A cette corporation le terrain sur lequel la voie est construite, et enlevant, par I& aux demandeurs le droit de se plaindre d'ouvrages que la commission d'apros leurs allegations aurait autoriss. La Commission du Havre n'exerce qu'A titre de fiddi-commis, les pouvoirs que lui a d616gu6s le Parlenent relativement aux gr~ves du St. Laurent et des rivibres navigables comprises dans ses attributionsi elle ne peut pas plus y autoriser tacitement des constructions que ne le pourrait, sans un statut le gouvernement lui-mime. De plus elle ne peut sur le lit ou les rives des rivibres sous son contr6le, rien permettre qui nuise A la navigation, A moins que celle-ci n'y trouve plus qu'une compensation et que les travaux auturi-~s n'aient pour objet de .'aider et de la faciliter, ce qui est loin d'6tre le but du terrassement que la d~fenderesse a construit sur la rive entre le lit de la rivibre et la proprith des demandeurs.

Mais supposant mame que la commission du HAvre eiit en le pouvoir de permettre A la difenderesse de mettre sur la rive de la rivikre St Charles & laquelle touche la propriWt& des demandeurs, le terrassement pour y passer sa voie ferr~e elle ne l'aurait pu toutefois qu'A la condition que les autorit~s provinciales eussent elle-m~mes autoris6 cette construction or ces derni~res n'ont pas donn6 d'autre autorisation que celle que comporte "Pacte refondu des chemins de fer de Qubbec, 1880," qui A la section et aux sous-sections suscitkess met A Pexercice des droits quail conf~re la condition d'indemniser les propribtaires des terrains qui en souffriraient des d6t6riorations ou des dommages.

La sec. 9 No. n'oblige pas seulement les compagnies A payer les terrains des particuliers et les mat&riaux que Ia loi les autorise de s'appropier, mais aussi les dommages caus6s & d'autres terrains par F'exercise de quelqu'un des pouvoir conf6r6s aux chemins de fer. La d6fenderesse n'a ni invoqu6 ni 6tabli le consentement du Lieutenant Gouverneur en Conseil requis par le statut pour I'occupation par elle d'une partie du rivage pour ses terrassements; mais I& n'est pas la question principale An cette cause. Car, si les demandeurs avaient un droit sp63ial d'ace&s & la rivibre, ce consentement ne leur 6terait pas celui d'obtenir une indemnite i et si la construction de la jet6e que la d6fenderesse a 6rig6e entre la propri~t6 des demandeurs et Ia rivire ne les a priv6 The learned judge having thus with great clearness pointed out that the statute gave to the defendants no authority to erect the structure complained of, unless upon the consent of the Lieutenant Governor in Council first obtained, which consent, as he says, was never invoked or established, and that the structure was therefore erected without any authority, I cannot I confess understand how the first considdrant in the formal judgment came to be inserted, namely:- If this be not a mis-print in the printed case brought before us, it is clearly shown by the notes of the learned judge that the law authorised no such thing; and it is, moreover, to be observed that nothing in the rest of the adjudication in the case is predicated upon anything stated in this considdrant as it is in the printed case.

The circumstances of the present case and of Regina ex rel. Widder v. The Buffalo 8r Lake Huron Railway Co. and the acts upon which the question in both cases turned, and the reasoning of the learned judges in both cases are, very similar.

Draper O.J. delivering the judgment of the Court of Queen's Bench in that case referring to the Railway Clauses Consolidation Act of Canada, which subjected railway companies to the obligation of giving com- [VOL. 11V. pensation to owners of land taken, or injuriously affected by the construction of the railway, says:- By the 9th section of that act, sub-sec. 3, any railway company NORTH with the consent of the Governor in Council may, among other Ry. things, take and appropriate for the use of their railway and works 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 Gwynne J. necessary for making, completing, and raising their said railway and works.

By the 37 section of the defendant's act of incorporation they are authorized to purchase and the Canada Company are authorised to sell to them the harbour of Goderich and so much of the islands on the river Maitland and the shore adjoining that river as may be agreed between them.

In 1835 the Crown leased to the Canada Company for a term of 21 years a space along the shore of Lake Huron extending north and south a distance of a mile and five hundred yards more or less out into deep water, and along the water's edge of the lake to the river

Maitland and up that river on one side nearly two miles to a certain point, and then across the river and thence down on the other side, saving and excepting to the Crown the free use of the land and premises and of any wharf, &c., that might be erected thereon, and on condition that the lessees within five years build a wharf and pier and remove a certain portion of the bar at the entrance of the river and lake there for the free navigation of vessels of seventy tons burthen,

The statute of Upper Canada, 7 W. 4 c. 50 authorised the Canada company to improve the harbor of Goderich and to levy tolls, with a proviso for the purchase thereof by the province upon certain conditions. After a purchase made by the defendants under the 37th sec. of their act of incorporation it was by the same section made lawful for them to straighten and improve the river Maitland and deepen cleanse and improve and alter the navigation thereof, &c., and to construct basins, docks, piers, wharfs, warehouses, &c., and also appropriate the mud and shore of the river Maitland, and the bed and soil thereof, and to do all such other acts as they might deem necessary or proper for improving Goderich Harbor and the navigation of the river, and the bed and shores thereof and the land adjacent thereto.

On the 14th of June, 1859, the Canada Company assigned to the defendants their rights, powers and privileges under their lease.

The statute 23 Vic. ch. 2. sec. 35 is also to be noted :

Whereas doubts have been entertained as to the power vested in the Crown to dispose of and grant water lots in the harbors, rivers and other navigable waters in Upper Canada and it is desirable to set at rest any question which might arise in reference thereto, it is declared and enacted that it has been heretofore and that it shall be hereafter lawful for the Governor in Council to authorize sales or appropriation s THE of such water lots under such conditions as it has been or may be Ry. deemed necessary to impose."

It appears to us that we shonid treat the powers given by the 6Owynne J. legislature and the rights thereunder for the purposes of the railway, as distinct from the powers granted for the purpose of the navigation of the river Maitland and the use of the Goderich harbor, and that an act done which expressly comes within the former class of powers leaves the rights of third parties as to compensation just where they were before the latter powers were conferred or acquired. The two sets of powers are for distinct purposes and it is abundantly clear to us that the powers to improve the navigation of the river do not and were not intended to enable the possessor of them to cover the bed of the river with railway works, or to interfere with or prevent free access to the river and harbour for the purposes of navigation. The case of the Queen v. Betts (1) though not similar in many respects tends in others to confirm the opinion that the powers conferred for the improvement of the navigation are to be exercised for that purpose solely and not as auxiliary to and extending those conferred on the defendants by their charter as a Railway Company.

Adopting this conclusion it will be obvious that the defendants cannot uphold their refusal to submit to arbitration the prosecutor's claim for compensation for the injuriously affecting his land by the construction of the railway on the ground of the rights they have derived from the Canada Company.

And upon the authority of Chamberlain v. The West London 4 Crystal Palace Railway Co. (2), and an Irish case of The Queen ex rel. Cowan v. Rynd (3), the court granted a peremptory mandamus commanding the defendants to take the necessary proceedings to enable an arbitration to be entered into, under the Railway Act, to indemnify the applicant for the injury done to his property although no land was taken from him. This case was decided in 1864; since then the cases of Beckett v. .Midland Railway Co. (4) and Metropolitan Board of Works v. MIcCarthy (5) have been decided. Upon the authority of these cases it was decided in (1) 16 Q.

(2) 2 B. & S. 605.

(4) L R. 3 C. P. 82.

(5) L. R. 7. H. L. 243..

Yeomans v. The County of Wellington (1) that a county council in Ontario could not under a statute con- PoN taming a similar clause of indemnity in respect of rE. land injuriously affected raise one of their own roads, so as to obstruct the access between land adjoining the road and the road without rendering compensation J. the owner of the land, and since the judgment of the

House of Lords in the Caledonian Railway Co. v.

Walker's Trustees in which all the previous cases have been reviewed, it cannot, I think, admit of a doubt that the obstruction of access between a public highway and adjoining land, whether such highway be on dry land or on navigable waters, is an infringement of a right attached to land for which an action lies at the suit of the owner of the land access with which is so obstructed unless the obstruction can be justified, and that if the justification be that the work causing the obstruction was done under the authority of a statute containing a clause of indemnity similar to that in the statute now under consideration, although the owner of the land is thereby deprived of his remedy by action at common law, he is entitled to compensation to be ascertained by arbitration under the statute.

Now between Regina v. The Buffalo <. Lake Huron Railway Co. and the present case, the only difference is in the form of the proceeding.

In that case the work complained of as injuriously affecting Mr. Widder's land was treated by him as having been dont by the defendants under the authority of the acts authorizing the construction of their railway, and upon that assumption he applied to the court for and obtained A mandamus nisi, calling upon the railway to initiate the proceedings necessary under the statute to have compensation awarded to him by an arbitration entered into in accordance with the provisions of the statute, and it was upon the return to that mandamus that the .

question arose. The defendants did not in that return raise any question as to the propriety of the mode of procedure adopted by Mr. Widder-they did not contend that his remedy, if any he had, was by action and not by arbitration; that is to say, they did not set up that they were not acting under their statutory powers at all in the construction of the work complained of, but they insisted that they had power under their act to erect the construction without giving any indemnity to the applicant, because the work was not constructed upon any land of the applicant, but upon land of which, as the defendants contended, they were themselves possessed by title derived from the crown; namely, the bed of the river Maitland in the navigable waters of the harbour of Goderich.

In the present case, on the contrary, the substance the plaintiffs' claim in their action is that the defendants have illegally constructed a work on the navigable waters of the river St. Charles in front of the property which cuts off all access between their property and the navigable waters of the river. If this allegation be true the cases conclusively decide that the charge involves an infringement of a right of privilege incident to land which is an actionable wrong.

The defendants if the work complained of was erected by them in point of fact could not exempt themselves from liability to the plaintiffs for such damages as they could establish upon a declaration containing such a cause of action otherwise than by a special plea of justification shewing the construction of the work not to have been illegal, and under the circumstances appearing in the case such a plea to constitute a good defence must have stated all the facts necessary to shew that under the provisions of the statute under consideration the defendants had authority to erect the structure which they have erected in the bed of the river St. Charles. In case such a plea should be sustained in evidence the effect would be to defeat the present action it is true, but to give to the plaintiffs a remedy by arbitration which- could have been enforced as in Regina v. the Bufalo and Lake Huron Railway Company by mandamus. But the defendants have pleaded no such plea-they have contented themselves with pleading simply the general issue-they offer no defence, but a simple denial of the facts alleged in the declaration which in the evidence were not disputed, the defendants' defence on the trial being simply that the land on which the work was erected by the defendants not being the land of the plaintiffs, no actionable injury had been done to them. The Court of Appeal in the

Province of Quebec have adopted this view and on appeal from the judgment of that court the defendants' contention before us was that if the plaintiffs are entitled to any compensation upon the facts as alleged and proved such compensation cannot be recovered in an action like the present, but can be recovered only by proceedings in arbitration under the statute, a defence not set up by plea upon the record, and which, if it had been, 'the defendants failed to establish, as has been pointed out in the notes of the learned judge of the Superior Court and which has never been questioned by the defendants, even if without a plea it could have been, namely that they never either invoked or established the consent in

Council of the Lieutenant Governor to their building their railway on the bed of the river St-Charles, without which consent first obtained they could not invoke the statute as a protection or justification for their conduct; the defendants were therefore placed in the position of being mere wrong doers, having no justification for doing the act causing the injury to the plaintiffs of which they have complained. and which act not having been justified as, and shewn to be, legal is actionable.

I cannot see upon what principle the defendants should now be heard to insist that the plaintiffs' remedy is not by action but by arbitration. It was the duty of the defendants if they relied upon their statutory powers as authorising the construction of the work complained of to have initiated the proceedings for an arbitration.

Not having justified under the statute they were liable as wrong doers and subject to an action for damages, and they cannot now be permitted to deprive the plaintiffs of the benefit of proceedings which the defendants' own neglect to bring themselves within the protection of their statute has occasioned, and at this late stage to appeal to their liability in arbitration as relieving them from liability in this action while they have not taken, or so far as appears do not propose to take, any proceedings to bring about such arbitration.

The courts below have never had presented to them any issue upon the point now urged that proceedings by arbitration and not by action constitute the plaintiffs' sole remedy. The judgment appealed from proceeds upon no such question. The Court of Appeals have decided that as the defendants have not constructed the work complained of on the plaintiffs' land but on the bed of a navigable river the plaintiffs are not injured and have no ground of complaint any more than all other Her Majesty's subjects-and that therefore their action should be dismissed. This judgment being erroneous the appeal should be allowed with costs and, as no complaint has been made that the amount allowed to the plaintiffs by the judgment of the superior court is excessive (assuming the amount to have been assessed upon sound principles) as it appears to have been, that