The Corporation of Aubert-Gallion v. Roy

By 44 &45 Vic. (P.Q.) ch. 90 sec. 3, granting to respondent a statutory privilege to construct a toll-bridge across the Chaudibre River in the parish of St. George, it is enacted that "so soon as the bridge shall be open to the use of the public as aforesaid during thirty years no person shall erect, or cause to be erected, any bridge or bridges or works, or use or cause to be used any means of passage for the conveyance of any persons, vehicles or cattle for lucre or gain, across the said river, within the distance of one league above and one league below the bridge, which shall be measured along the banks of the river and following its windings ; and any person or persons who shall build or cause to be built a toll-bridge or toll-bridges or who shall use or cause to be used, for lucre or gain, any other means of passage across the said river for the conveyance of persons, vehicles or cattle, within such limits, shall pay to the said David Roy thiee6 times the amount of the tolls imposed by the present act, for the persons, cattle or vehicles which shall thus pass over such bridge or bridges ; and if any person or persons shall, at any time, for lucre or gain, convey across the river any person or persons, cattle or vehicles within the above mentioned limits, such offender shall incur a penalty not exceeding ten dollars for each person, animal or vehicle which shall have thus passed the said river ; provided always that nothing contained in the present act shall be of a nature to prevent any persons, cattle, vehicles or loads from crossing such river within the said limits by a ford or in a canoe or other vessel without charge." After the bridge had been used for several years the appellant municipality passed a by-law to erect a free bridge across the :-Strong, Fournier, Taschereau, Gwynne and Patterson JJ.

Bench for Lower Canada (appeal side) reversing the judgment of the Superior Court.

The material facts are as follows: In 1881 the respondent, by a statute passed by the legislature of Quebec, 44 & 45 Vic. ch. 90, obtained the statutory privilege to erect a toll-bridge. on the Chaudibre River, in the parish of St. George, in the district of Beauce. In addition to the clause of the statute given in the head note section one was also referred to.

By that section it is provided that " after the expiration of eight years from the ppssing of the act, it shall and may be lawful for the municipality of St. George to assume the possession of the said bridge and dependencies and to acquire the ownership thereof, upon paying to the said David Roy the value which the same shall, at the time of such assumption, bear and be worth, with an addition twenty per centum, and after surch assumption it shall become a free bridge and shall be maintained by the municipality as such free bridge."

The respondent maintained in good order his bridge collecting tolls thereon for ten years, it being the only one erected on the Chaudikre River, within a distance of six miles.

In 1891 the appellant municipality, in order to avail itself of a subsidy of $17,500, granted by the government of the province of Quebec to aid in the erection of an iron-bridge on the river Chaudiare, determined to erect within the limits of the municipality an iron bridge free and open to the public, and passed a by-law on the 19th June, 1891, authorizing the erection of a free iron bridge opposite the parish church of St. George, within a short distance of t indemnity mentioned in the first section of 44 & 45 Vic. ch.

After the passing of this by-law, on the 14th July, 1891, the respondent applied for and obtained a writ of injunction calling upon the corporation, appellant, to suspe'nd all action and operations under the by-law of the 19th June, and to stop all work of construction the bridge, because, amongst other reasons, the by-law was illegal, null and void, and also because the act the legislature, 44 & 45 Vic. ch. 90, had given him the exclusive and perpetual privilege of building and maintaining a toll bridge within the limits of three miles above and three miles below his own.

The superior court of the district of Beauce held that the by-law of the 19th June was valid, and that Roy did not have as against the municipality Aubert-Grallion, the exclusive privilege to build and maintain an open bridge, and rejected the writ injunction with costs.

The court of Queen's Bench also held the by-law of the 19th of June to be legal and intra vires, but held that the by-law could not be carried out so long as the statutory privileges in question remained in force, and maintained the injunction.

The statute 44 & 45 Vic. ch. 90 cannot be relied on as a prohibition to the municipality to erect a free bridge.

A municipal corporation has unrestricted and clearly defined rights to build free bridges on rivers, watercourses, etc.; and this power or Tight cannot be taken away from it by a charter granted to an individual, unless it be by a formal enactment to that effect. The act recited forbids only private persons, for the roarrion space of thirty years, from entering into competition with Roy by the erection and building of a toll-bridge for lucre or gain, within three miles on either side of this bridge but this prohibition does not extend to the corporation.

The act forbids the erection by individuals for lucre or gain, but does not apply to the bridge intended by the corporation of Aubert-Gallion which is to be for free and gratuitous use.

Roy answers this objection by a reason ab inconveniente :"

A free bridge" he says is even more ruinous to me than another bridge for lucre or gain." That may be ; but Roy has placed himself in that position, for the act of the legislature, which forbids individuals to erect bridges for lucre or gain, was passed at his request, on his own petition, addressed to the legislature, and which should have contained the terms under which the statute was to be passed.

He defined his own position, as appears by the preamble of the act, and he cannot to-day be allowed to improve it.

Moreover, is it to be believed that if Roy had asked of the legislature an enactment forbidding the building of a free bridge by the corporation, such monopoly would have been granted him?

No, for it would have been manifestly unjust to make the interest of the whole public subservient to that of a simple individual. To grant such a monopoly legislative authorization was required in formal and express terms, and such was never given directly or indirectly to municipal corporations in the province of Quebec.

See Harrison's Municipal Manual (1).

The authorities are unanimous in declaring that the terms of grants conferred on individuals must always be applied and interpreted strictly. See Endlich on the Interpretation of Statutes (1); Maxwell on Statutes (2); Sedgewick on the Interpretation of Statutory Law (3); and also arts. 520, 542, 485, 460, 84 M.C. (P.Q.)

The question which arises on this appeal is: Whether a corporation which, in the public interest, grants a perpetual and exclusive franchise to any one to build a bridge, a franchise which has been confirmed by the legislature with the condition that the said corporation may, after eight years, convert the same into a free bridge on indemnifying the proprietor, has a right to set at nought its promises and engagements, without any right, on the other hand, to those who are ruined by its conduct to complain of the same?

I contend that the statute 44 & 45 Vic. ch. 90, grants to the respondent a perpetual and exclusive privilege, and that the appellant cannot without breach of the most elementary good faith, violate a public contract, repudiate a solemn engagement, and not only ruin the respondent but tax him over the bargain, in order to aid in the construction of a free bridge alongside of his own.

The clause by which the appellant cannot convert this toll-bridge into a free bridge, without paying the value thereof, has not been written to protect the public, for, to the latter, a free bridge is worth a hundred-fold more than a toll-bridge. It was evidently framed in the interest of the respondent so that he might not be ruined at the caprice of four councillors.

The following cases and authorities were cited and relied on: Galarneau v. Guilbault (1); Corriveau v. Corporation St. Valier (2); Charles River Bridge Co. v. ron or Warren Bridge Co. (3); and Kent's Commentaries (4). The learned counsel also argued the question of the validity of the by-law, but the grounds relied on for and against the validity are sufficiently reviewed in the judgment of Mr. Justice Fournier.

STRoNG J. concurred with TASCHEREAU J.

FOURNIER J:-Par un r~glement du conseil de la municipalit6 d'Aubert-Grallion, en date du deux novembre mil huit cent quatre-vingt, il fut ordonn6 et statu6:

ler.-Que M. David Roy est par le pr6sent rbglement autoris6 & construire un pont sur la rivibre Chaudibre, vis-aL-vis 1'4glise paroissiale de St. Georges.

2.-Qu'aprbs que le pont aura &t ouvert au public, et tant qu'il restera en bon 6tat, nulle personne et nulle compagnie ne construira ni ne fera construire aucun pont ou ponts, on n'emploiera comme travers6e aucun bateau on vaisseau d'aucune espice pour traverser aucune personne, bestiaux on voitures quelconques, soit en louant on autrement, les susdits bateaux ou vaisseaux sur la dite rivibre Cbaudibre, h ine distance de trois milles en haut et en bas du dit pont qui sera construit par le dit David Roy, et si aucune personne construit un pont on des ponts d'aucune espIce ou 6tablit une traverse d'aucune esphce on fait traverser sur la dite rivibre Cbaudibre dans les dites limites, elle paiera an dit David Roy pour chaque personne on animal ou voiture qu'elle traversera pour lucre trois fois la valeur des taux impodis par le prdsent rbglement pour toutes les personnes et animaux qui passeront sur tels ponts on par telles traverses ainsi construits ou 6tablis, en contravention des dispositions de ce rkglement, et toute contravention 4 la prohibition de traverser pour rbmundration d'un c6t6 de la rivibre h 1'autre entrainera une amende n'excidant pas dix piastres.

Cette amende recouvrable de la mime manibre que celle impos~e par le code municipal de la province de Qubbec.

(2) 15 Q. L. R. 87.

(4) 13 Ed. 3 vol. par. 439a. Avec le privil6ge de construire un pont, 1'intim6 obtint aussi le droit de prdlever des p6ages qui furent fix6s par le r~glement.

Apres le rigl ement, et pendant qu'il 6tait enforce, la 16gislature de la province de Qu6bec, passa A la session Fue de un statut qui fut sanction6 le de juin, accordant au dit intim6 le droit exclusif de construire A ses d6pens, au mime endroit, sur la rivibre Chaudibre, dans la paroisse de St-Georges, un pont de p6age avec d6pendances, r6servant cependant A l'expiration de huit ann&es apr~s la passation du dit acte, i ]a dite municipalit6, le droit de prendre possession du dit pont et de ses d6pendances et d'en acqurir la proprith, en en payant la valeur an temps de la prise de possession et en payant 20 p.c. en outre de la valeur, lequel pont deviendrait alors un pont libre et serait maintenu par la municipalit6.

Il est 6vident que par le r6glement ci-haut cit6, la mnnicipalit6 appelante s'est interdit le droit de construire un pont libre, dans la limite indiqu6e, pendant toute la dur6e du privilege accord6 A 1'intim6. Ce privildge ayant &t confirm6 par l'acte 44-45 Vic. c. 90, il n'est plus loisible A la municipalit6 de rien entreprendre qui soit en contradiction avec son rglement ni avec le statut de la lgislature accordant A l'intim6 les mimes droits et privileges, car tous deux sont de la nature d'un contrat entre la 16gislature et la municipalit& d'une part, et l'intim6, de 1'autre, et sont 6galement obligatoires pour les deux parties.

En vertu des pouvoirs qui lui 6taient conf6r6s par le r6glement et le statut ci-haut cit6s, 'intim6 a construit l'endroit indiqu6 dans la dite municipalit6, un pont offrant au public toutes les conditions de sftret6 et de commodit6 voulues. Ce.pont a exist6 depuis an delA de dix ans, et est encore en existence, et en 6tat de servir avantageusement pour l'utilit6 du public. Cependant la dite municipaliti, en violation du r~glement et du statut ci-haut cit6s, a pass6 en date d juin 1891, un r~glement ordonuant la construction d'un pont en fer qui devait tre un pont municipal.

Ces

16ue cepnt erat os ispositious suivantes: 1' Que ce pout serait construit en fer sons la direction du gouvernement de Quebec, conform& ment A 1art. 859a du Code Municipal; 20 Que le gouvernement so chargerait de tons les frais de la superstructure du dit pont, et la municipalit6 construirait les cules et les piliers en pierre suivant les plans et sp6cifications annex~s au rIglement.

Les clauses 5, 6, 7, 8, 9. 10, 12, 13, 14 et 15 fixent la date du commencement des ouvrages et de leur achevement, le mode d'accorder le contrat, ainsi que le mode de paiement, les garanties d'ex&ution du contrat, les cotisations sur les contribuables pour frais de construction, en outre une d6claration limitant la responsabilit6 de la municipalite A $11,500, avec 'int6rt de trois ans, se montant en tout A $13,340, le nom du surintendant, le mode d'entretien et de reparation du dit pont et finalement que ce pont serait libre et gratuitement ouvert au public.

Apres 1'adoption de ce r6glement, 1'intim6 a demand6 a la cour Sup6rieure un bref d'injonction pour faire ordonner A l'appelante de suspendre tous proc6dds vertu du reglement du 19 juin, et d'arrter tous les onvrages do la construction du dit pont, pour entre autres, les raisons suivantes: Que le dit raglement 6tait nul, et que 1'acte de la l6gislature 44-45 Vic. c. 90, lui avait accord6 un privil6ge exclusif de construire entretenir un pont de p6age dans les trois milles audessus et au-dessous du lieu indiqu6.

Le jugement de la cour Sup6rieure, district de Beauce, a reconnu la validit6 du riglement du juin, et a d~ni6 1'intim6 son privilge exclusif de construire in pont l'encoutre de la municipalit6. Ce jugenent ayant t port6 en appel A la cour du Banc de la Reine a td infirm6.

Dans leur constestation les parties out soulev6 un grand nombre de questions dont il est inutile de s'occu- . per pour la d6cision du litige en cette cause.

La question se r~duit A savoir si, apris le riglement adopt6 par la dite municipalit6 appelante, accordant A 1'intim6 le privilege exclusif de construire un pont, privilige reconn plus tard, par 1'acte de la 16gislature 44-45 Vict. ch. 90, accordant de nouveau an dit intim6, le mime privilige, la municipalit6 peut-elle maintenant entraver l'exercice du privildge de l'intim6, construisant on permettant de coustruire, an m~me endroit, dans la dite municipalit6 un pout libre qui aurait I'effet de d6truire complitement la valeur du pont de p6age de 1'intim6 ? Ne s'est-elle pas au contraire, par son dit r~glement interdit tout droit de construire un pout en opposition au privilege qu'elle a accord6?

La .d~cisiou de cette question est r6glke par les termes du r~glement et par les sections 1 et 3 du statut 44- 45 Vict. ch. 90.

En d6clarant, par son riglement qu'apris que le pont aura t6 ouvert an public, et tant qu'il restera en bon 6tat, nulle personue et nulle compagnie ne construira ni ne fera construire aucun pont ou ponts, etc., l'appelante a fait une prohibition g6ndrale et absolue dans laquelle elle est n6cessairement ellem~me, puisqu'elle est la partie contractante et 1'autorit6 qui cr6e et accorde le privilige en question en faveur de 1'intim6. Il n'y a aucune reserve quelconque en sa faveur, et cette d6claration doit 6tre interprte comme s'appliquant A elle-mame.

La mime prohibition est contenue dans 1'acte 44-45 Vict. ch. 90 et doit avoir le meme effet. Elle est meme encore plus 6tendue, puisqu'elle ne fait qu'une exception en faveur de celui qui passerait A gu6 on en canot et sans charge, cette restriction prouve bien que la ounow prohibition est g6ndrale.

J'ai dit que le r~glement doit tre consid6r6 comme ayant I'effet d'un contrat entre la municipalit6 d'une Fouier part et 1'intim6 Roy, de l'autre.

Celui-ci, en construisant un pont a accept6 le privilige qui lui avait t6 accord6 A ce sujet. Le fait d'avoir demand6 et obtenu de la 16gislature la confirmation de ce privil~ge, ne peut pas 6tre consid6r6 comme une renonciation A ses droits. Tout au contraire, ce procdd6 ne peut 6tre consid6r6 que comme une mesure de prudence pour se mettre a l'abri des contestations trop fr6quentes des r glements municipaux. Il sauvegardait ainsi ses droits en les mettant sous la protection d'un acte de la

16gislature qui lui en assurait la jouissance.

Ce privilige doit, d'apris le statut, durer pendant trente ans, et d'apris le r~glement, tant que le pont restera bon 6tat.

Dans un de ses plaidoyers, l'appelante a pr6tendu que le pont en question 6tait en ruine et dangereux pour le public. Ce motif n'a pas t6 invoqu6 comme raison d'ordonner la construction d'un nouveau pont, parce qu'il est alors t facile A l'intim6 de prouver que le pout existant 6tait suffisant et en 6tat de servir au public et que le public s'en servait alors.

Ce fait a 6t0 6tabli par la preuve en cette cause, ainsi que le comporte le jugement de la cour du Banc de la Reine,

'd6clarant qu'il n'appert pas que le dit pont n'est pas en bon etat.

Dans la cause de Galarneau v. Guilbault la cour a en l'occasion d'examiner la question de 1'6tendue d'un semblable privilige accord6 pour la construction d'un pont. Une des conditions du privilge 6tait que si le pont par accident on autrement 6tait d6truit, devenait dangereux on impassable, les demandeurs seraient ten-s de le rebatir dans les mois, sons peine de forfaiture de tons les avantages accord6s par le dit acte, et qie pendant tout le temps que le dit pont serait dangereux on impassable, les dits demandeurs seraient oblig6s de maintenir une traverse sur la dite rivibre, pour laquelle is pourraient percevoir des phages Ce pont ayant t6 entrain6 par les glaces, les demandeurs se mirent en frais d'en construire un autre et entretinrent une traverse, les d6fendeurs pr6tendant que les prohiBitions du statut n'avaient pas d'autre effet que de prot6ger le pont, pendant qu'il 6tait en existence, et ne Douvaient nullement s'6tendre A la protection de la traverse.

La cour d~cida que le privildge exclusif accord6 par le statut s'6tendait A la traverse, et, tant qu'elle 6tait maintenue par les demandeurs, les d6fendeurs n'avaient ancun droit de bitir un pont temporaire, etc.

L'6tendue de ce privilege a 6t port6e encore plus loin dans la cause de Girard v. B61anger oi il avait t6 d6cid6, en cour Sup6rieure, A St-Hyacinthe, le 2 d~cembre 1872, par Sicotte, J., que la construction d'un pont sur lequel on n'exigerait pas de p6ages n'6tait pas une atteinte aux priviliges des demandeurs.

Sur appel A la cour du Banc de la Reine, (2) ce jugement fut infirm6 et il fut, au contraire, maintenu que c'6tait une atteinte aux priviliges des demandeurs, appelants, leur donnaut le droit d'en demander la d6molition pour faire respecter leur privilige. Ce dernier jugement fut rendu unanimement en 1874 par la conr du Banc de la Reine.

On en trouve la substance dans .1'ouvrage de feu 1'honorable juge Ramsay, oi 1'on voit qu'il fut d6cid6 que la construction d'un semblable pont n'6tait qu'un moyen d'&viter le privilige accord6 au propri6taire du pont de p6age.

Ce privil~ge a encore 6t6 maintenu dans une cause a

&6mainenu ansOF de Globensky el ux. v. Lukin et al, (1) dans laquelle il fut d~cid6:

A Par tons ces motifs, je suis d'avis que l'appel doit 6tre renvoy6 avec d6pens,

J.-The respondent in this case attacks, by a petition for injunction, a by-law passed by the municipality, appellant, in June, 1891, for the erection of a free bridge across the Chaudi~re River, and prays that the appellant be restrained from proceeding with the said erection on the ground that it would be an unlawful interference of the privilege granted to him by the legislature in 1881, by the act 44 & 45 Vic. ch. 90, under-which he was authorized to build and has built a toll-bridge across the said river, within the said municipality.

Section of the said act reads as follows

The bridge projected by the municipality, appellant, would be within one league from the respondent's, but they contend that a free bridge would not be an unlawful interference with his franchise. The judgment of the Court of Queen's Bench, reversing the judgment of the Superior Court, was adverse to their contention and ordered them not to proceed with the erection the said bridge.

I am of opinion that this judgment was right though on grounds different from those upon which the said judgment of the Court of Queen's Bench was based.

The appellants would read 'section above cited of the respondent's charter, as if it said: RV.

"during thirty years no person shall erect, or cause to be erected, any bridge or bridges or works, for J.

lucre or gain, within the distance of one league from the said bridge " and hence argue that a bridge for lucre or gain only is prohibited by the statute, and not a free bridge. But the words "for lucre or gain" are not so to be found therein after the words " any bridge bridges or works," but only after the words "or use cause to be used any means of passage for the conveyance of any persons, vehicles or cattle."

I do not see that these words " for lucre or gain " are at all connected with the words " bridge or bridges works."

I read the sentence as if the words "for lucre or gain " were inserted immediately after " use or cause to be used."

And I am fully justified in doing so, it seems to me, by the fact that it is after the same words, " use or cause to be used," that the words " lucre or gain " are to be found a few lines after, in the same clause, when decreeing the penalty for infringement of the charter. And that penalty is " ,any person who shall build or cau'se to be built a tollbridge or toll-bridges within the said limits," consisting in three times the amount of the tolls imposed by the act for the persons, cattle or vehicles, which shall thus pass over such bridge or bridges, whether such persons, cattle or vehicle have passed free or not, such a toll-bridge, it is clear, not being absolutely prohibited, sed qucere ? as per Sir Montague Smith in Jones v. Stanstead, Shefford 4 Chambly Ry. Co. (1) ; Leprohon v. Globensky (2); Globensky v. Lukin (3),-with a penalty of ten dollars for each person, animal, or vehicle conveyed across the said river for lucre or gain, within the said limits, by any other means of passage-here again, using the words " for lucre or gain," only in connection with the means of passage other than by a bridge.

a bTaschereau

Then the words " bridge for lucre or gain " are not J. those generally used in statutes in pari to mea-n a toll-bridge.

Whenever a bridge for lucre or gain is meant, it is called a toll-bridge, not a bridge for lucre or gain, and this very statute, nay this very clause itself, when decreeing penalties, is an instance of it. And if the legislature had here intended to forbid only the erection of a toll-bridge or of toll-bridges it would have said, " no person shall erect or cause to be erected any toll-bridge or toll-bridges."

But it did not say so. The prohibition extends to any bridge.

Neither can this section be read again as limiting the prohibition to a bridge for lucre or gain, as contended for by the appellants; "no person shall erect or cause to be erected any bridge or bridges, or works for the conveyance of any persons, vehicles or cattle for lucreor gain across the said river."

A bridge is built for the passage but not for the conveyance of any one, and the words " for the conveyance of any persons, vehicles or cattle for lucre or gain " are clearly governed by and relate only to the preceding words " any means of passage."

This section must be read, and, in fact, reads as follows, in the French as in the English version

"During thirty years, no person shall erect. or cause to be erected any bridge or bridges or works across the said river within the distance of one league."

*

It thus expressly enacts that no bridge of any kind shall, within a league, be erected in opposition to the respondent's privilege, a prohibition which as against a free bridge was obviously, by the legislature itself, considered as absolute, and which accordingly was left to be enforced, when necessary, as has been done by the respondent here, and by the grantee of a similar franchise, in an analogous case, in Montreal, Leprohon v. Globensky by restraining order, the penalties imposed applying exclusively to the infringe- J.

ment of the franchise by a toll-bridge or by the other prohibited means of passage.

This is made still clearer by the proviso of the section which specially exempts a free passage by a ford, or in a canoe, or other vessel from the prohibition to cross the river within the said limits. Does not that infer that a free bridge is to be prohibited?

If not, why a proviso to allow free passage by a ford or canoe or other vessel without mention of a free bridge? If the legislature had intended to permit a free bridge, it would not so have exclusively provided for a free passage by a ford or canoe or other vessel. Inclusio unius est exclusio alterius. Comp. Garnier, Reg. des Eaux

The appellant would have us read this proviso as if it extended to a free bridge. But there is no rule construction of statutes that I know of to authorize it. Quite the contrary, when the statute says that, notwithstanding the privilege granted, a free passage by a ford or in a canoe or other vessel, shall be permitted, it clearly, it seems to me, though impliedly only, decrees, or assumes rather, that a free bridge or a free passage by a bridge shall not be permitted.

And is it not evident that if the legislature had, by the act, allowed the erection of a free bridge at any time, by this corporation or by any one else, in opposition to the respondent's privilege, the public would then have had no bridge at all ?

1,

Suppose (says Putnam J.) (1) for example, a free bridge should be placed by the side of the toll-bridge, it would seem a mere - CORmockery to tell the proprietors of the toll-bridge that they might still have all the toll that they could collect over their bridge.

This free or bridge would as effectually destroy their franchise as if an armed force were stationed to prevent any one passing over it. Who does not see that their charter would be subverted by this construction ? Charters creating a monopoly or granting a franchise, J. it is true, are, as argued by the appellants, strictissini juris. But they, like all other statutes, must receive, if possible, a construction which will promote the object of the law giver, not one which would defeat his intentions.

And in every case, (says Story J.) the rule is made to bend to the real justice and integrity of the case.

No strained or extravagant construction is to be made in favour of the king.

And, if the intention of the grant is obvious, a fair and liberal interpretation of its terms is enforced. Whenever the grant is upon valuable consideration this rule of construction ceases, and the rule is expounded, exactly as it would be in the case of a private grant, in favour of the grantee (2). Such a grant is always made in the interest of the public, to ensure an easy access from one side of a river to the other which it has previously been impossible to get, and which without it, it must be assumed, cannot be obtained. And this very grant itself was, on its face and in express terms, so-made to the respondent for the benefit of the public:

" Whereas (says its preamble) the construction of- a toll-bridge over the river Chaudibre, in the parish of St. George, in the county of Beauce, would greatiy tend to promote the welfare and to facilitate the intercourse of the inhabitants of the said parish and of the neighbouring parishes, and whereas David Roy. has, by petition, prayed to be authorized to construct such a toll-bridge."

(1) Charles Biver Bridge v. Warren

(2) Charles River Bridge v. Warren Bridge 7 Pick. 493.

Bridge Peters 589, 597. Could anything be clearer?

Is it not solely upon THECOR- these considerations of public utility, and in return for his assuming an enterprise needed by the public, that the legislature granted this franchise to the respondent ?

founded on a valuable consideration and to involve public duties, and to be made for the public accommodation, and to be affected with a jus publicum, and they are necessarily exclusive in their nature.

See also Perrine v. Chesapeake (21.

The obligation between the Government and the grantee of such a franchise is mutual. He is obliged to provide and maintain facilities for accommodating the public, at all times, with an easy crossing. The law, on the other hand, in consideration of this duty, provides him a recompense by means of an inclusive toll, to be exacted from persons who use the bridge, and, of course, it will protect him against any new establishment calculated to draw away his custom to his prejudice.

Or, in the words of the same learned Chancellor: The grant must be s6 construed as to give it due effect, by excluding all contiguous and injurious competition.

Ogden v. Gibbons (3). For it has been said long ago where the use is granted, everything is granted by which the grantee may have and enjoy the use (4).

And if two constructions may be made, one to make the grant good, the other to make it void, then for the honour of the king and the benefit of the subject, such construction shall be made that the grant shall be good."

Bacon's Abridg. Prerog, F. 2.

And, (says Mr. Justice Story) (5) : Wherever a grant is made for a valuable consideration, which involves public duties and charges, the grant shall be so construed as to make the indemnity co-extensive with the burden.

McLean J., in the same case, said:

Much discussion has been had at the bar, as to the rule of construing a charter or grant. In ordinary cases, a grant is construed favour- (1) 3 Comm., p. 458.

(5) Charles River Bridge v. Warren (3) 4 Johns. Ch. Rep. 160.

Bridge Peters 630.

ably to the grantee, and against the grantor.

But it contended that in government grants nothing taken implication. The broad rule - THE thus laid down cannot be supported by authority.

Whatever is essential to the enjoyment of the thing granted must be taken by implica- or tion, and this rule holds good whether the grant emanates from the royal prerogative of the King in England, or under an act of legisla- Ro. ture in this country.

Charles River Bridge v. Warren Bridge Peters - J. In Newburg Turnpike Co. v. Miller (1), it was held, in that sense, that where one has a franchise of a bridge with the exclusive right of taking toll, though no limit above or below are defined by the charter, the erection of a free bridge, by another person, so near as to create a competition injurious to such franchise, is an infringement of the grant and will be prohibited by injunction.

No rival road, bridge, ferry or other establishment of a similar kind (said the court), can tolerated near to the other materially affect or take away its custom.

It operates a fraud upon the grant and goes to defeat it.

The consideration by which individuals are invited to expend money upon great, expensive, and hazardous public works, roads and bridges, and to become bound keep them in constant and good repair, the grant of a right to an clusive toll.

This right, thus purchased for a valuable consideration, cannot be taken away direct or indirect means.

I need not remark that the respondent's case here is still more favourable, as his charter clearly defines the limits of his privilege.

In Reg. v. Cambrian Railway Co. (2), Blackburn J. said

The prosecutor-s right is a ferry, or franchise, by which he had the exclusive right of carrying passengers across the river.

It well established that if that right interfered with, without the authority of an act of parlipment, an action would lie for that disturbance. That case was, it is true, overruled by Hopkins v. The Great Northern (3), but only on the ground that a railway bridge, authorized by act of parliament, is not (1) Johns. Rep.

L.R. Q.B. 422.

Q. B. D.

an infringement of the franchise of a ferry.

A question of the same nature as to a toll-bridge arose in the wATO_ province of Quebec in the case of Jones v. Stanstead (1), which was ultimately determined by the Privy Council but upon grounds which have no application to the present case.

J.

In the United States, it was also held in Re Lake v. Virginia upon the principle that any ambiguity in the terms of the grant of a franchise must operate against the grantee and in favour of the public, that a railway bridge is not an infringement of a previous grant of the exclusive right of a toll-bridge. But neither does that case help the appellants here. It is in fact their construction of the respondent's charter which would, if adopted, then have clearly, in 1881, not been in favour of the public, since the. public would not then have had the bridge which the act itself says was needed to promote the welfare of the inhabitants.

In the well known case of Charles River Bridge v. Warren Bridge to which I have already referred, the grantees of the franchise of a toll-bridge were, it is true, defeated in their attempt to restrain the erection of another bridge near theirs; but they had no limits defined by their charter above and below their bridge for the exclusive exercise of their franchise, and moreover, the bridge of the defendants had been authorized by a special act of the legislature; and the great controversy before the courts was as to the power of the legislature to pass such an act, it being contended by the plaintiffs that the act was ultra vires under the constitution of the United States, as impairing the obligation of a contract.

But the case is no authority in favour of the appellants here.

On the contrary, it (3) 7 is evident by a reference to the opinion of Taney C.J., who gave the judgment of the court, that the plaintiffs would have been successful if their charter had defined certain limits for their privilege, and, I assume from the report, even without any such limits being defined in their charter, if the defendant's bridge had not been , authorized by statute.

See also Tuckahoe Canal Co. v. Tuckahoe Railroad Co.

Such, according to Garmier,

Reg. des. Eaux would be the decision, in France, under similar circumstances.

See also Daniel, Cours d'Eaux (3).

And it cannot be doubted, in fact it must be assumed, that if the legislature, here, had been asked, or were asked at any time during the thirty years of the respondent's privilege, to grant a charter, or a permission for another bridge, whether a free bridge or a tollbridge, within three miles from the respondent's, such a petition would not have been, or would not be granted, if the respondent performed all his obligations, if granted at all, would have been so, or be so, only upon providing for due compensation to the.respondent.

It would have been an expropriation of the franchise.

It cannot be presumed that the legislature would, by a clear abuse of power, have destroyed its own grant and committed a fraud on its grantee.

As said in Dalloz R6pertoire (4).

A case noted in Ramsay's Digest of Girard v. Belanger (5) decided by the Court of Appeal in Montreal, in

1874, is on all fours with the present one. There the court, reversing the judgment reported at 17 L. C. Jur. 263, distinctly held that a free bridge was an infringement of a charter for a toll-bridge similar to the respondent's here, and, in one respect, not so favourable to the exclusiveness of the franchise.

For there, the proviso exempted from the operation of the act the J.

free crossing by a ford or in a canoe or otherwise (1) whilst here, these words "or otherwise" have been replaced by the words " or other vessel," removing one of the grounds that had given rise to the controversy in that case of Girard v. Belanger. And this decision of the highest court in the province which, as I have said, was rendered in 1874, furnishes an additional argument against the appellants' contention here, the respondent's charter having been granted in 1881, after that decision.

For it is a well settled rule of construction (unaffected by legislation in the province of Quebec as it is for Dominion statutes, by 53 Vic. ch. (D.) that, where a statute has received a judicial interpretation, and the legislature has afterwards re-enacted one in pari materia, it must be considered to have adopted the construction which the courts had given to it. See Per Strong J., Nicholls v. Gumming See also cases cited in Endlich on Interpretation of Statutes This rule, it seems to me, applies here with the more force, as by the replacing 1 have noticed above, of the words " or otherwise," by the words " any other vessel," the legislature must b-e assumed, in view of the anterior decision of the Court of Appeal, to have intended the decree more clearly, and so as to remove any room for doubt, that a free bridge would be an infringement of the grant to the respondent.

In the case of Galarneau v. Guilbault in this court, Mr. Justice Fournier, delivering the judgment of the court, was clearly of opinion that a free bridge, under similar circumstances, is an infringement of the THE franchise of a toll bridge.

It was not necessary, how- RaTION ever, for the determination of that case to decide the point.

A case of Motz v. Rouleau, noted in Globensky v. Taschereau Lukin, et al. (1), decided in the Court of Appeal, Quebec,

J. in 1848, is the other way.

On cite ces arrels commne on signale des 6cueils, says Boncenne. It was there held that a free bridge was not an infringement of a charter for a toll-bridge granted in 1818, by the 58 G-eo. III. ch.

25, Lower Canada, to one Verrault, of Ste. Marie,

Beauce.

That decision, however, was overruled by the legislature itself in 1853, by a declaratory act, the

16th Vic. ch. 260, wherein it is declared to remove all doubt, that the intention of the legislature, in the aforesaid act of 1818, was to prohibit the building of any bridge or bridges whatsoever in opposition to Verrault's toll-bridge.

To show how similar on this point the charter there in question was to the one now under consideration, I quote it at length.

Sec. 6. No person or persons shall erect or cause to be erected any bridge or bridges or wQrks, or use any ferry for the carriage of any persons, cattle or carriages whatsoever, for hire (pour gages) across the said river Etebemins, within half a league

* *

* and if any person or persons shall erect a toll-bridge or toll-bridges over the said river Etchemins within the said limits, he or they shall pay to the said

Verrault treble the tolls hereby imposed for the persons, cattle and carriages which shall pass over such bridge or bridges ; and if any person or persons shall at any time, for hire or gain

(pour gages on gain) pass or convey any person or persons, cattle or carriages across the said river, within the said limits, such offender or offenders shall, for each person, animal or carriage so carried across, forfeit and pay a sum not exceEding forty shillings.

Provided that nothing in this act contained shall be construed to prevent the public from passing any of the fords in the said river or in canoes without gain or hire (sans lucre on gages).

In other words, what the legislature meant in 1881, by section 3 of the respondent's charter, must be what it meant by the same section enacted in 1818.

It is exactly, it sdems to me, as if the legislature, in 1881, had contracted with the respondent that he would have, as to this bridge, the same rights that were conceded to Verrault, in 1818, as to his bridge.

An additional argument against the appellant's contention is derived from the very first section of the respondent's charter, whereby the legislature provided for the case, and the only case, where they might, after eight years, have a free bridge in this locality. It reads as follows:- The appellants would contend, for they are driven to go so far, (and the superior court had supported their contention) that they had the right to build a free bridge in the locality at any time immediately after the erection of the respondent's toll-bridge, or ORTIoN even simultaneously with it. That cannot be, in my opinion.

Such a contention, if it were to prevail, I have already remarked, would clearly render vain and Taseieat illusory, and nullify the grant made to the respondent.

J. Comp. Anderson v. Jellet

And apart from the reasons I have hereinbefore attempted to explain, this first section further demonstrates, in my opinion, the unsoundness of the appellant's proposition. It is only after eight years from the passing of the act that this municipality can, there, have a free bridge, and then, not one in opposition or adverse to the respondent's grant, but only upon expropriating his bridge and paying him, not merely the actual value thereof, as. in ordinary expropriations, but an addition of 20 per cent over and above such value, the legislature thereby clearly, it seems to me, showing that, in its intention, such an expropriat ion, at the end of eight years, would deprive the respondent of a privilege for the balance of the thirty years against any bridge whatever, the

20 per cent above the value being for that privilege and franchise.

Such a clause would not be found in the statute if, as they contend, this municipality, appellant, had, and has had, the right, at any time, to erect a free bridge within one league from the respondent's toll-bridge.

It would have been futile, and ironical almost, to grant to the municipality appellant the right of expropriating the respondent's bridge, without any privilege in their favour thereafter on their paying him 20 per cent more than its value, if they always had an independent right to build one themselves.

And, it must not be lost sight of, the erection of a free bridge by the appellants would not relieve the respondent from the duties and obligations cast upon him by the statute. He would be deprived of all the benefit of the franchise, whilst he continued liable during the unexpired term of thirty years to all the burdens imposed upon him.

He would have to keep his bridge in repair under a penalty of ten dollars a day, and give to the public without distinction the right to pass over it. For though the bridge is his property, yet he could not in law, refuse to any one the right of passage over it, upon payment of the statutory tolls.

Upon the consideration of the right to an exclusive toll for 30 years, he disbursed a large amount to build it, and to repay to Cahill and Gilbert, as obliged to by his charter, their cost of a temporary bridge they had erected in this same locality. This consideration the appellants would take away from him and leave nothing but the charges and obligations. They have not the right to do so, in my opinion.

The rights of a grantee are not to be extended by implication they say. Spoliation is not to be authorized by implication, I would say. In France, as in England and the Unites States, as might well be expected, it is held that the right to a franchise of this nature called droit de bac and de pontonage must necessarily be exclusive and entitle the grantee ex necessitate rei to restrain all interference with his right. Daniel des Cours d'Eaux (1) ; Bacquet, des Droits de justice (2); Henrys, Ferriere dic. de Droit vo. P6age (3) ; Dupont, Actions possess (4) ; Dalloz, r6p. vo. Voirie par Eau (5); Domat, Dr. publ. tit. (6) ; 3 Despeisses (7).

We see in Lebret's decisions (1) that the King Louis XIII. having run great danger in crossing the Seine at Neuilly in a scow decided that a bridge should there be built, and that this bridge be built by. private parties, upon the king granting them an exclusive right to tolls during a certain time.

By an arr~t of March 4th, 1705 (5 Journ. des audiences 507), J. it appears that the king himself, Louis XIV., successor to the grantor, paid an annual sum for the passage of the officers of his household.

And in Anc. DNnizart the following case is reported :

The Seignior of Coulonge, owner of the franchise of a ferry across the River Sa6ne, took proceedings against one Bourdance, to prohibit him and his servants from crossing the river in his own scow opposite his residence, twelve hundred feet from the ferry. In the Court first instance, the Seignior obtained a judgment in his favour. This judgment, however, was reversed in appeal on the 9th January, 1758, but only upon a declaration by Bourdance that he admitted the plaintiffs right to the franchise, and upon his binding himself not to allow any one else but members of his family and his servant to cross at all in his scow. This is a clear case where, long ago, a free passage to the -public was held to be an infringement of the franchise of a ferry.

In modern times, this doctrine, in a case under analogous circumstances, of Turquand v. Goagon has received the sanction of the Court of Cassation.

In another case reported in Sirey the grantee of a toll-bridge was held to be entitled to recover damages from the state for a breach of the state's contract, by having allowed the construction of a railway bridge within the limit of the toll-bridge privilege.

See also THr Sirey 59, 461.

In 1875 also, Sirey

Re des Ponts de or

St. Michel, the state was declared to be responsible in '.

damages for the erection of a free way of crossing with- 40 metres of a toll-bridge.

prior case in Sirey J.

and another one in Sirey seem to have been determined in a contrary sense.

However, they merely declare the right generally of the state t(o build a new bridge, without compensation, near a tollbridge, and have no application here. They are, moreover, overruled by the more recent cases, and, at most, demonstrate, if demonstration was needed, that Sirey, like Dalloz, may well be termed:

A case of Guerin v. I'Etat before the Conseil d'Etat in 1869, is absolutely in point. The plaintiff had obtained from the state, in 1851, the grant of the franchise of a toll-bridge of which he was in possession.

The state subsequently built a free bridg. on the same river, three thousand metres from the plaintiff's toll-bridge. Thereupon, an action of damages against the state was instituted. The action was dismissed, but only upon the ground that the distance between the new bridge and the toll-bridge was such that the plaintiff could not be admitted to contend that his privilege extended so far, and without questioning at all his right to an exclusive privilege, even against a free bridge, within a certain distance below and above his own bridge, though such was not expressly reserved to him in his charter.

TEOo- And on this last ground alone, as I have said, the grantee's claim was dismissed.

I entirely concur in the judgment of my brother Taschereau, and that the appeal be dismissed with costs.

concurred.

Appeal dismissed with costs.