Judgment of the Court
J.-This is an appeal by a railway company and a cross-appeal by a landowner, in respect to the compensation to be allowed to the latter for land taken by the railway company for its track, and also for severance.
Arbitrators were appointed in the usual manner, and a majority award was made on the 29th December, 1905, in favour of the respondent for the sum of $1,170.
From this award an appeal was taken by the respondent, in pursuance of sec. 168 of the Railway
Act, 3 Ed. VII. ch. 58.
That section provides that whenever such an award exceeds $600 any party
Subsection 2 provides that:
By sec. 2(f) of the Railway Act, the expression
"Court" means a superior court of the province or district, and by the Interpretation Act, R.S.C. [1906]
ch. 1, sec. 34(26), "Superior Court" means, in the Province of Ontario, the Court of Appeal for Ontario, and the High Court of Justice for Ontario.
By sec. 65 of the Judicature Act of Ontario, it is provided that every action and proceeding in the High Court, and all business arising out of the same, except as hereinafter provided, shall, so far as is practicable and convenient, be heard, determined and disposed of before a single judge.
In pursuance of these enactments, the landowner, who had the option of taking an appeal from the award, either to the High Court of Justice, or to the Court of Appeal in Ontario, took it to the High Court, and it was heard before a single judge viz., before Meredith C.J., who increased the compensation J. due from the company to the sum of $2,250.
From that judgment the present appeal was brought by the company, whereupon the landowner, by way of cross-appeal, claimed in his factum, that the sum awarded to him by the Chief Justice, was insufficient and should be largely increased.
Upon the opening of the appeal, a question was raised by the court with respect to its jurisdiction, and an opportunity was given to counsel to argue that question, as well as the merits.
Having heard the argument and also an application for leave to appeal, we are all of opinion that there is no jurisdiction to hear the appeal, either with or without leave, and that the appeal should be quashed.
Precisely the same question arose in this court in 1901, on a motion for leave to appeal to this court from a judgment of a judge of the High Court of Ontario, increasing the sum awarded by arbitrators to a landowner against a Railway Company, and the application was refused.
That was the case of the Ottawa Electric Co. v. Brennan(1).
The case of Birely v. The Toronto, Hamilton and Buffalo Ry. Co.(2), was there referred to with approval in which it was held that no appeal lay from the judge of the High Court to the Court of Appeal in such a case, both those courts being designated by the statute as special tribunals, to either of which the appellant might resort.
The appeal and cross appeal, and also the motion for leave will therefore be dismissed without costs. Appeal dismissed without costs.