Majority
LT D . ..............................
N COMPANY. ....................
ON APPEAL FROM THE BOARD OF RAILWAY COMMISSIONERS FOR CANADA
Judgment of the Court
DUFF, C.J.-This is an appeal from the Board of Railway Commissioners.
By order of the Board dated 2nd June, 1933, leave was granted to appeal upon two questions which are stated thus:
1. Whether the Board's judgment is correct in holding that section 197 of the Canadian Railway Act has no bearing on the application of the applicants; and that the applicants cannot invoke its provisions in support of their application?
2. Was the legal effect of the transfer from Robert Kelly to the Edmonton, Dunvegan and British Columbia Railway Company, dated 28th September, 1914, to vest in the railway company not only the right of way thereby transferred, but the right to subjacent and adjacent support?
It will be convenient first of all to give very briefly the material facts:
In 1914, Robert Kelly, the predecessor in title of the appellants, was the owner of the quarter-section now in question with the mines and minerals thereunder. On the 28th of September that year, Kelly transferred to the Edmonton, Dunvegan and British Columbia Railway Company, the predecessor in title of the respondents, 8*64 acres required for company's right of way through this quartersection by a transfer which reserved all mines and minerals. Before the execution of this transfer by Kelly, the railway company had taken all the proceedings required by the Railway Act then in force for the expropriation of the land. Notice of expropriation had been served upon Kelly, by which the company offered to pay him $3,769; this S.C.R.]
amount including compensation at the rate of $50 per acre for the injurious affection of 27-85 acres of coal rights. An order for immediate possession had been granted on the 6th September, 1912, which provided that the railway company should make application upon four days' RYS. Co. clear notice to determine what, if any, amount should be u paid into court, as security for the payment of any compensation to which the parties entitled to the mineral rights might be found entitled. A further order was made on the 6th September, 1912, directing the sheriff to put the railway company in possession of the right of way, on the company's undertaking to pay into Court as security for compensation such sum as might be fixed by a judge, after determination by the Board of a pending application for permission to work the minerals under the railway right of way. Upon the 20th March, 1913, upon the application of Robert Kelly and others, the Board made the following order:
That the applicants be, and they are hereby granted leave to work and excavate the coal lying under the right of way of the railway company on section 8, township 55, range 24, west of the 4th meridian, in the province of Alberta, as shown on the plan on file with the Board under file Nos. 20827 and 20827-1, subject to and upon the following conditions, namely:- 1. The coal not already mined under the right of way of the railway company to be left in place; and in the Kelly mine the coal to be left in place under the right of way and under additional strips fifteen and twenty-five feet in width outside the right of way on the northwest and southeast sides respectively.
2. Two levels, eight feet wide, and seven feet high, to be constructed to each mine, the levels to be seventy feet apart and the timbers to be placed inside this measurement.
3. The posts and timbers under the right of way to be of tamarack posts to be seven inches in diameter and the roof timbers eight inches by five inches, and placed on edge.
4. All work within the limits set forth in paragraph 1 to be done under the supervision of an engineer of the railway company, who shall have the right of access to the mine at any time in order to examine timbers in the levels under the right of way.
5. Where the coal has already been taken out under the right of way the applicants shall notify the railway company of the true position of the levels abandoned.
It is admitted that the effect of the Board's order, as regards the quarter-section in question, was to reduce the area injuriously affected in respect of right to coal from 27-85 acres to 8-64 acres.
In April, 1913, an order was made fixing an amount payable into court under the previous order at the sum of $4,000.
On the 5th March, 1914, Robert Kelly and the railway company entered into an agreement which, in part, is as This agreement was carried out by a transfer dated September 28th, 1914. The rights of Robert Kelly to the coal now in question were afterwards acquired by the appellant Elizabeth Berg, and the undertaking of the Edmonton, Dunvegan and British Columbia Railway subsequently became vested in the respondent company.
The first question with which we have to deal is whether or not section 197 of the Railway Act, that was passed after the transfer of September, 1914, applies to such a case. Now, the reciprocal rights of the parties were determined by the transfer of September, 1914. The obligation of the railway company to compensate Kelly for land taken, as well as for injurious affection in respect of coal rights and otherwise, was discharged by payment of the sum named, while the railway company received title to the land subject to the reservation of the mines and minerals, including the right to vertical and lateral support for the railway. The Board has so decided, and, even if the Board's decision on this point were open to review before us, we should not disagree with it (Davies v. James Bay Railway Co.) (1). In the absence of some plain language in the contrary sense, of which there is none, section 197, which was not enacted until 1919, cannot be so construed as to prejudice the rights of the parties as settled by the transaction between them in 1914.
It was also pressed upon us with a great deal of vigour that the transaction between Kelly and the railway company must be interpreted in the light of a decision of the
Statutes and regulations cited
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Unresolved citations
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section 197 of the Canadian Railway Act
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section 8
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section 197 of the Railway Act
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section 197