Judgment of the Court
ABBOTr J.:-This is an appeal from a unanimous judgment of the Court of Queen's Bench of the Province of Quebec' rendered on September 23, 1965, allowing an appeal from a judgment of the Superior Court rendered on August 2, 1963, which homologated a decision of the Public Service Board of the Province of Quebec fixing the compensation to be paid to respondent for property expropriated by the appellants.
1 Que. Q.B.
S.C.R.
The right to expropriate was not contested, and follow- PROcuREuR ing proceedings under arts. 1066a et seq. of the Code of Civil Procedure, the Public Service Board, as arbitrator, fixed at $5,065.50 the compensation allowed to respondent HBERT for the property expropriated by appellants.
On appeal to the Court of Queen's Bench that amount was increased to $20,512.50. In this Court the appellants ask that the award of the Public Service Board be restored. The relevant facts are set out in detail in the reasons of Rinfret J., in the court below, and in the Order of the Public Service Board. They are not now seriously in issue and for the purposes of the present appeal can be shortly stated.
The property in question is situated at the corner of St. Pierre St. and St. Joseph Boulevard West in the City of Drummondville. It forms part of an emplacement purchased by respondent on September 11, 1945, from Southern Canada Power Company Ltd. for the price of $2,200. The deed of sale from the power company contained restrictive conditions and created certain servitudes in the following terms:
RESERVATIONS AND SERVITUDES
The Vendor reserved as perpetual servitudes on the property above sold and described in favour and for the benefit of the Vendor on the residue of said lot No. and in favour of part of lot 152, of the South-Ward and of lots Nos. 3 and 4 of the West-Ward of Drummondville being properties of the Vendor, the following rights and restrictions, all undertaken and agreed to by the Purchaser.
1. To run or place overhead or underground electric transmission and telephone line or lines which may already be constructed or which may be constructed in future on or across said sold property, including the right to place or construct thereon poles and anchors towers supports, structures guy wires, etc.
2. To run a duct line or lines and pipes over and under said property.
3. No structure of any sort shall be erected and no tree or trees shall be planted in near or within falling distance of the said transmission lines. The Vendor shall have the right to trim and cut any trees thereon and to do other such acts as may be necessary for the full operation of said transmission and telephone lines and duct or pipe lines and their maintenance in good order, including the right of ingress and egress for employees and employees' vehicles at all time on said property sold for the construction, operation and maintenance of said lines, the whole without any compensation therefor.
4. No structure shall be erected and no trees shall be planted on or along a strip of the hereby sold property, twenty-five feet wide adjacent to the present north-east limit of the third range (St. Joseph Boulevard) and parallel to it.
QUBEC 5. Should the City of Drummondville require land along the said et a. third range road, to increase the width of said road by a maximum of twenty feet, the Purchaser agrees to cede to the said City of Drummondville, free of charge, a strip of land along the hereby sold property, wide enough for such purpose.
Notice of expropriation was given on August 10, 1961, and a technical description of the property, prepared on behalf of appellants, is dated October 5, 1961. The property and rights expropriated are concisely described by Rinfret J., as follows:
La description technique du 5 octobre 1961- (1) d&crit le terrain a acqunrir comme contenant une superficie de 14,810 pieds carris, soit 97 pieds dans la ligne nord, le long du chemin St-Georges (rue St-Pierre), dans la ligne est 41.5 pieds, dans la ligne nord-est 26 plus 202 pieds; dans la ligne sud-est 52 pieds et dans sa ligne sud, 294 pieds.
En somme l'expropriation couvrait une lisibre de 52 pieds sur toute la largeur du lot, longeant le boulevard St-Joseph.
(2) elle privoit une servitude de non-ace&s s'4tendant sur une distance de 26 pieds sur la rue St-Pierre ainsi que sur le boulevard St-Joseph et sur une distance de 41.5 pieds dans la ligne courbe contournant l'encoignure;
(3) elle 6tablit une servitude d'une largeur de pieds pour le passage d'une ligne de transmission de la Southern Canada Power, le long du boulevard;
(4) elle d6cr~tait 1'6tablissement et le maintien d'une zone libre de construction sur une distance additionnelle de 8 pieds, soit en tout de 18 pieds, parallble au boulevard.
Comme r~sultat net de cette description technique, l'appelant perdait une lisibre de terrain de 52 pieds et se voyait priv6 de construire sur une lisibre additionnelle de pieds une tranche de 70 pieds sur la profondeur de 114 pieds que contenait son immeuble.
As above stated, the superficial area of the land expropriated was 14,810 square feet of which 5,600 square feet represented the area comprised in the 20-foot strip, which, under his deed of acquisition, respondent was obligated to convey to the City of Drummondville for the widening of St. Joseph Boulevard.
The Public Service Board held that by reason of the stipulations contained in his deed of acquisition, which I have just referred to, the respondent was not entitled to compensation for the taking of a 20-foot strip along St. Joseph Boulevard. It valued the land expropriated at 0.55 S.C.R.
[1967} cts. per square foot and applying that figure to the remainder of the area expropriated, namely 9,210 square feet, it the indemnity payable at $5,065.50.
Having held that by reason of the servitudes and restrictions imposed on the property by the power company in 1945, the land taken had very little commercial value the Board added that in fixing the value at 0.55 cts. per square foot, "ce prix tient 6galement compte de la possibilit6 pour l'expropri6 d'obtenir de la Southern Canada Power la lib6ration 6ventuelle des servitudes qui l'affectaient". The Board also found that the respondent was not entitled to any compensation for the servitude of non-access or for injurious affection to the remainder of his property.
The Court of Queen's Bench held that the Board had erred in considering that the limitation of its servitude by the power company was a mere possibility. After discussing the evidence on this point, Rinfret J. said:
A I am in respectful agreement with that finding. In fact by a letter dated March 29, 1962, addressed to respondent, the power company did agree to limit its servitude to a strip along the new line of St. Joseph Boulevard and this was confirmed by a notarial deed executed May 24, 1962. Both these documents were filed with the Board before it made its award.
Having carefully reviewed the evidence, Rinfret J. (with whom Taschereau, Owen and Rivard JJ. concurred) fixed the commercial value of the land taken at $1.25 per square foot, and that finding should not be disturbed. He also held that the respondent was entitled to compensation for all the land taken-including the 20-foot strip above referred to-and fixed the indemnity at $18,512.50, together with a sum of $2,000 as indemnity for the servitude of non-access making a total of $20,512.50. In all other respects the findings of the Board were confirmed. Montgomery J., while of opinion that the Board may have been right in taking into account the undertaking to transfer the 20-foot strip to the City free of charge, considered that the value of remainder of the property expropriated justified the proposed award of $20,512.50.
As I have said, under his deed of acquisition from the power company, respondent was obligated if required to do so, to cede a 20-foot strip free of charge to the City of Drummondville for the widening of St. Joseph Boulevard. Moreover, under clause 4 of the said deed, no structure could be erected or trees planted on the said strip. It is true that expropriation proceedings were initiated by the Provincial Government and the cost of the expropriation borne by it. The expropriation however, was for the joint benefit of the Province and the City, and under the provisions of the Roads Act, now 1964 R.S.Q., 133, s. 98, the land when taken vested in the City and became part of St. Joseph Boulevard West. With great respect, in my opinion the Board was justified in finding as it did that the land comprised in the said strip had no commercial value to respondent and that he was not entitled to compensation for that portion of the land taken. It follows therefore that the amount of $18,512.50 established by the court below should be reduced to $11,512.50.
In awarding an amount of $2,000 as compensation for the servitude of non-access, the Court below seems to have proceeded on the assumption that this servitude covered all the remaining frontage on St. Pierre St. of the property purchased by respondent from the power company. In fact this is not the case. As counsel for appellants pointed out in the argument before us, from a plan produced by respondent, dated October 2, 1961, and bearing the number 85 3-D, it appears that the property had a frontage on St. Pierre St. of approximately 148 feet. Of that frontage 97 feet were expropriated and a servitude of non-access imposed with respect to an additional 26 feet making a total of 123 feet. This left a frontage of approximately 25 feet on St. Pierre St., over which access to the property was unrestricted. So far as St. Joseph Boulevard is concerned, after the expropriation, access remained unrestricted along a frontage of 202 feet.
With respect to this servitude of non-access, the Public Service Board said:
CONSIDtRANT QUE les r6gisseurs ont visit6 le terrain en question A plusieurs reprises, aussi bien avant qu'apris l'enquite;
CONSIDERANT QUE le risidu de la partie expropri6e du lot 151 a une superficie de 10,800 pieds carr6s, soit une superficie suffisante pour y eriger une station de service, selon les normes usuelles et suivant les pr~tentions des experts de 1'expropri6, pourvu que la forme de cette superficie s'y prite;
CONSIDPtRANT QUE la servitude de non-accs plac6e au coin du boulevard St-Joseph et du chemin St-Georges, sur une longueur globale de 138J pieds 6galement r6partie entre les deux rues, n'a pas pour effet de rendre l'exploitation du r~sidu impossible, car mame si la servitude n'existait pas, la disposition des rues d'oii provient la clienthle l'empacherait de faire usage du secteur cl8tur6, du moins dans une tris large mesure;
CONSIDRANT QUE les clients 6ventuels peuvent entrer sur le terrain et en sortir sans inconv6nients appr6ciables.
It held that the respondent was not entitled to compensation for the creation of such servitude.
As pointed out in the Court below, the servitude of non-access extends over 93.5 feet not 138.5 feet as stated by the Board, but obviously this error does not affect its findings that such servitude caused no appreciable inconvenience to the owner of the property and that consequently he was not entitled to compensation under this head. I am in agreement with these findings.
In the result, therefore, I would allow the appeal, modify the judgment in the court below and substitute the sum of $11,512.50 for the sum of $20,512.50 therein mentioned. The appellants are entitled to their costs in this Court.
Appeal allowed with costs. Attorneys for the appellants: Nichols & Pinard, Drummondville.
Attorneys for the respondent: Ringuet & Saint-Pierre, Drummondville.
Statutes and regulations cited
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Unresolved citations
- s. 98