statute, 58 Geo. III., chap. 20, and brought the action against the respondents praying for a declaration that the construction of a new bridge, across the Etchemin River, alleged to be within the limits prohibited by the statute, and opened by them to the free use of the public, was an infringement of the privileges secured to him under the statute, for an order prohibiting further use of the new bridge and for its demolition at the expense of the defendants and for damages. Upon the trial, the Superior Court dismrissed the plaintiffs action on the ground that the new bridge was not within the prohibited limits according to the distance measured along the highway.
On appeal by the plaintiff, the Court of King's Bench affirmed the judgment dismissing the action, but on the ground that the new bridge was not within the limits reserved according to the distance measured along the course of the river. The principal contention of the plaintiff on the present appeal was that, under the proper construction of the statute, the distance should be measured in a straight horizontal line, and that according to such measurement the new bridge encroached upon the limits specially reserved by his franchise.
Belleau K.C. for the appellant.
L. P. Pelletier K.C. for the respondents.
THE JUSTIcE.-L'appelant, demandeur en cour de premibre instance, est I'ayant cause des concessionnaires d'un pont de p6age autoris6 sur la rivibre Etchemin par le ch. 20 du statut 58 Geo. III. Il se plaint par son action de ce que les intimbs ont construit un pont libre sur la dite rivibre dans les limites du privil6ge conc6d6 A ses auteurs par le dit statut, et en demande la demolition avec $1,000 de dommages. La clause du statut qui rgit le litige se lit comme suit :
VI. Et qu'il soit plus statu6 par l'autorit6 susdite qu'aussit~t que dit pont sera passable et ouvert pour l'usage du public, lors aucune personne quelconque pourra 6riger faire briger aucun pont ponts, pratiquer on faire pratiquer aucune voie de passage pour le transport The Chief d'aucunes personnes, bestiaux on voitures quelconques pour gages A tra. Justice.
vers la dite rivibre une demie liene au-dessus du dit pont au-dessous du dit pont ; et quelque personne personnes construisent un pont des ponts page sur la dite rivibre Etcheinin dans dites limites, elle paiera'on elles paieront aux dits Jean Thomas Taschereau, George Pyke, Pierre Edouard Desbarats, et Francois Roy, leurs hiitiers, ex6cuteurs, curateurs et ayants cause, trois fois la valeur pages imposds par present acte pour les personnes, bestiaux et voitures qui passeront sur tel pont ponts et quelque personne personnes passent aucun temps que soit, transportent pour gage gain aucune personne personnes, bestiaux, voiture voitures travers la dite rivibre Etchemin dans limites snadites, tel contrevenant contrevenants encourront et payeront pour chaque personne, voiture animal ainsi travers6 une somme n'excddant pas quarante chelins courant pourvu que rieh de contenu dans cet acte sera s'4tendre h priver le public passer la dite rivibre Etchemin dans les limites susdites A gud on canot sans lucre gages.
Le pont des intim6s est A 53 arpents de celui de 1'appelant en suivant le cours de la riviere, A 42 arpents et quelques perches par les chemins actuels et A moins do 42 arpents en tirant une ligne droite A vol d'oiseau, en sorte que 1'appelant ne pent r6ussir que si cette dernibre m6thode de mesurer la distance entre les deux ponts est celle qui doit pr6valoir.
La cour suphrieure a d6bout6 son action sur le motif quo c'est la distance mesur~e par le chemin qui r~git.
La cour d'appel a confirm6 le dispositif de la cour sup6rieure sur le motif que c'est la distance en suivant le cours de la rivibre qui doit pr6valoir. J'adopte le motif du jugement de la cour d'appel.
Le statut ne me laisse pas le moindre douto sur la question.
O'est Ia rivi&re qui seule doit 6tre prise en consid6ration quand il s'agit d'un tel privil6ge sur une riviere. Une demie-lieue au-dessus et au-dessous du dit pont vent dire la mime chose qu'une demie-lieue en amont et une demie-lieue en aval du dit pont.
22G
Je d6bouterais l'appel avec depens.
J.-I concur in the judgment dismissino the appeal for the reasons stated by His Lordship the Chief Justice.
J.-I also concur for the reasons stated by His Lordship the Chief Justice.
(dissenting).-The question in this case is: What is the prop3r construction to be placed upon a statute 58 Geo. III., ch. 20, sec. 6, forbidding the erection of a bridge or use of a ferry within half a league above or below a bridge by the statute authorized. The trial judge held the half league was to be measured by the roads then in use, the Court King's Bench, that the measurement was to be made by following the middle course of the stream.
I find the cases well summarized in the 9th volume of the Am. & Eng. Enc. of Law, page 614 as follows: I have read the various cases referred to and those referred to in the judgment of the court below and adopt the summation I have quoted. Nothing can be added to the historical treatment of the authorities by Lord Blackburn delivering the judgment of the Exchequer Chamber in 1872 in Moujiet v. Cole and I fail to find any such expression of clear intent the part of the legislature in this case as to justify a different construction from the one which the court in the case I have referred to lays down as the proper one.
I am sensible of the argument that the law was differently declared in 1817, the year before the legislation was enacted, but I cannot overlook the consideration that the law has been authoritatively stated in case after case in England to be different from that laid down by Lord Ellenborough in 1817.
Any other construction would in my view leave such room for uncertainty as to be a trap for litigation. I cannot adopt the suggestion of my brother Idington that the ccat can question the location of the bridge constructed under the statute and used for so many years, and as I have said the true construction of the language used is that a circle of half a mile radius is to be drawn around the bridge and the erection of any other bridge within that radius is prohibited.
I would allow the appeal.
J.-The cases cited seem to show that the distance from any given point or thing must, unless there is something in the contract or statute inconsistent with such holding, be measured in a straight line.
I see nothing in the statute 58 George III., ch. 20, sec 6, inconsistent with the application of that rule to the expression,
The plain ordinary meaning of the words accords with running in a straight line better than any other. There were as far as shown no roads alongside the river when this enactment was passed.
Nor is it shewn that the river itself was a navigable stream. That, if shown, might have made some difference. On the plan produced as an exhibit the river between the two bridges in question is very crooked and for aught we are told it may be from the Byrne bridge up stream absolutely straight. Measurement by the river may mean one thing up the stream and quite another thing down.
When we think of the causes and reasons for imposing prohibition here against the construction of another bridge on either side of this toll bridge we see the absurd results that might flow from such interpretation.
oIT. The bridge was to be
No doubt this was to serve the people using that road, and there is just as little doubt that when new bridges would be needed they would be likely intended to serve the people coming by other roads to cross the river. And what roads?
Roads that would serve by running in a general way back from the' river, to the neighbouring country.
It obviously was the intention of the legislature to serve by this bridge a district or territory contributory to it, so to speak, on each side of the river.
It was as obviously intended in a general way to prohibit, as a reward to the builders, any new bridge within a half league of the Ste. Therese road or as near thereto as it was possible to build a bridge.
It is clear that this bridge was not put opposite at that road.
Why is not explained
If it had been shown by evidence that by reason of the conformation of the land it was impracticable to put it nearer thereto than it is, then placing the bridge where it is would be within the statute.
Without such evidence explanation the bridge is not where this statutory franchise authorized it to be. It rested on the appellant to show this, and failing to do so I think he must fail; for rights such as he claims are to be construed most favourably to the public whose rights are restricted by such legislation.
The length of time the appellant and his predecessors -in title have enjoyed the franchise may enable him to claim the property in the bridge but cannot entitle him to the right of prohibition against rival bridges that the statute gave the original grantees of the franchise, and to measure it from the place where this ,bridge erroneously. placed is found to be. No matter what the interpretation of long ago may have been somebody the real meaning of the statute is what must govern.
The case of Madison v. Emmerson (1) exemplifies this. And the Ste. Ther~se road was declared on the argument here to be more than half a league from the new bridge now in question measured in a straight line and that was not denied.
As the cases of Reg. v. The inhabitants of Saffron "Walden (2); Jewell v. Stead ; 1oufet v. Cole Exchequer Chambers; Duignan v. Walker (5); Stokes v. Grissell ; Lake v. Butler followed by Jewell v. Stead (3) which is, being as to a toll-gate on to a turnpike road, peculiarly applicable here.
Lord Campbell said in this last case that
In another case he illustrates the need for this by showing how in case of a tidal river the distance measured by that would vary as in this, no doubt, between low water in summer and high at spring freshet time.
I am glad to arrive at what I think manifest justice in the case by an adherence to the strict law which must always govern us here.
I think the appeal should therefore be dismissed with costs.