Grierson v. Edmonton (City)

OF

EDMONTON

RESPONDENT. _9 (DEFENDANT)...................

*May 2. ON APPEAL FROM THE DISTRICT COURT, DISTRICT OF EDMONTON, IN ALBERTA.

DAVIES J.-I think the learned judge erred in adopting as the sole standard by which he should determine the amount for which the appellant's lands should be assessed, the amount for which other lands in the city, whether in the immediate vicinity of those in question or not, were assessed at. The value at which the lands in the immediate vicinity of those in question had been assessed was, no doubt, under the statute an important factor to be considered when determining the assessment value in question. But that does not apply in cases where the lands in question have been grossly overvalued by the assessors.

The object and purpose of introducing this factor of equalisation in the assessments as a guide was as far as possible to obtain uniformity in the valuation. But that equalisation rule cannot be resorted to as the proper test or standard where there has been in the assessment a gross overvaluation. in fact of particular lands beyond their "fair actual value."

Section 321 of the charter of the city of Edmonton is as follows:- The question then before us is reduced to the simple one whether there has been such a gross overvaluation, looking to the situation of the land and the purpose for which it is used or, if sold by the present "owner, it could and would probably be, used in the next succeeding twelve months."

After careful consideration of the evidence, I cannot, acting on the rules the statute lays down for determining the fair actual value, resist the conclusion that the land has not been assessed at its fair actual value, but that it has been grossly overvalued.

The question difficult of solution on our part is, assuming what is the of the lands?

We have to be guided by the opinions G soN. of the witnesses, of course.

Applying the statutory rules as above stated, these opinions, as might be expected, greatly differ. Had we the power to refer the case back to the judge who heard the appeal from the assessors in order that he might determine on proper principles the valuation at which the lands should be assessed, I would gladly do so.

Not having that power, I have carefully considered the different valuations made by the witnesses called on both sides and have reached the conclusion that the fair actual acreage valuation of the learned judge should be reduced one-half, that is, the lands south of- the Grand Trunk Pacific Railway to $1,000 per acre, and those north of the track to $575 per acre.

Costs must follow the result.

J.-I think the respective assessments appealed against of .the lands in question are, even as reduced by the local courts, still grossly in excess of the actual values thereof, and should be reduced as follows:

The assessment of the land comprised in Roll No. 2081 should be reduced to $475 an acre and fixed at $75,525, and the assessment of the land comprised in Roll No. 1503 should be reduced to $625 per acre and fixed at $95,317.50.

I retain the views I expressed in the somewhat analogous case of Pearce v. Calgary (1).

The appeal should be allowed accordingly with costs.

J.-The learned judge seems to have proceeded upon an erroneous principle.

His reading of the statute apparently led him to the conclusion that in applying the Act the governing consideration is supplied by the ratio generally prevailing (as regards the assessment roll for the particular year) between the assessed value and the actual value of assessed properties in Edmonton. This, I think, is a misconception due seemingly to the neglect of the coidition upon which the comparison of ratios is to be considered, namely: that the departure in the assessed value from the actual value in the case arising for decision shall not, in the language of the statute, be "gross." The evidence conclusively shews that this condition is not satisfied in the present case where the difference, in my view, is equivalent to considerably more than 100% of the actual value of the property assessed.

The cardinal error in the valuation appealed from arises from a failure to observe the fundamental principle that where prospects of future sales or future profitable exploitations are considered in estimating value it is the present value of such prospects only that are to be taken into account.

(See judgment of the Judicial Committee in Fraser v. Fraserville (1)). I should reduce the assessment to an amount arrived at by valuing 152.5 acres at $625 an acre and 159 acres at $475 an acre.

J.-The dominant provision for the assessment of land made by the charter of the city of Edmonton is that

In cases, however, where the difference -between the assessed value and the fair actual value is not "gross," the assessment is not to be varied on appeal if it bears [VOL. LVIII. a fair and just proportion to the value at which lands in the vicinity of the land in question are assessed. The charter further provides in regard to the assessment of land that

The word may was substituted by amendment for the word shall, which appeared in the original section. do not regard this change as entitling the assessor to take into account any prospective use which might be made of the land after twelve months had expired. He was formerly obliged to take into account its prospective use during the next succeeding twelve months. He is now not obliged but permitted to do so. The fair, if not the necessary, implication is that he may not take into account possibilities beyond the period so limited.

The judgment of the learned district judge makes it reasonably clear that in dealing with the assessment of the appellant's lands he did not take into consideration their fair actual value based on their situation, their present use and any prospective use to which they might be put within the next succeeding twelve months, or whether the difference between the fair actual value and the assessed value was gross or slight. Assigning as his reasons that and the learned judge dismissed the owner's appeal, subject to making a slight reduction as to a portion of the lands in question.

On the evidence in the record it is abundantly clear o that there was no likelihood whatever-indeed it may be said that there was no possibility-of the land here in question being used for anything else than farm or market garden purposes during the twelve months succeeding the assessment.

Yet the assessment was obviously based upon the prospective value of the land for purposes of subdivision into building lots, and all the evidence offered in support of it was based on the assumption that it was properly so treated. The only evidence in the record as to the value of the property viewed as farm lands or as available for market garden purposes was that given on behalf of the appellant. In my opinion the assessment was grossly excessive and should be reduced to the maximum figures deposed to by the appellant's witnesses-$500 an acre for the land north of the right-of-way and $700 an acre for the land south of the right-of-way.

These are the prices given by the witness Kenwood, who appears to have viewed the matter sensibly and equitably.

PRICE BROTHERS

COM - PANY

MOTION to quash an appeal from the judgment of the Court of King's Bench, appeal side, reversing the judgment of the Superior Court, District of Rimouski, and maintaining the plaintiff's action for the sum of $1,367.45, after deduction, from the amount of the demande, of $1,248.90, by consent of the parties at the trial and before enqu~te.

The action was for $3,.616.35, the value of timber which the plaintiff alleges was cut in trespass on its timber limits. The defendant denied the trespass and alleged title to the trees as having been cut on its own limits.

Belcourt K.C. for the motion.

Hall Kelly K.C. contra.

is a motion to quash for want of jurisdiction.

The action was brought to recover the sum of $3,615.35 as damages representing the value of timber which the plaintiff alleges was cut in trespass on its timber limits. The defendants, by their plea, denied the trespass and alleged title in themselves to the trees. At the trial and before enqu8te the amount of the claim for damages was reduced by consent to the sum of $1,369.45.

On those facts I am of opinion that we are without jurisdiction to hear this appeal.

As has already been said in many cases, in determining the sum or value in dispute the proper course is to look at the conclusions of the declaration.

There is no question of title involved; the plaintiffs brought their action in a form which imposed upon them the obligation to prove that they were injured as alleged.

This they could not do if there was any doubt about their title.

Bgliveau v. Church

Here the only claim is for damages the amount of which was by consent before trial reduced below the appealable limit. Town of Outremont v. Joyce (2); Dufresne v. Fee (3). As was said in Toussignant v. Nicolet (4), it is settled law that neither the probative force of a judgment, nor its collateral effects, nor any contingent loss that a party may suffer by reason of a judgment are to be taken into consideration.

The only thing to be considered is the matter directly in controversy and necessary to be determined to dispose of the rights of the parties in the particular case. As to the effect of retraxit, see Cameron, 267.

Motion granted; appeal quashed with costs. J.-1 am of the opinion to dismiss this motion with costs on the ground that the title to the lands in question is involved.

J. (dissenting)-It is quite clear that I-ES there cannot be any matter in controversy in this appeal which involves an amount of the as stated in section 46, subsection (c) of the "Supreme Court Act" to be the limit of jurisdiction for Quebec appeals, when the amount demanded had before judgment expressly been fixed by the agreement of the parties at a sum much below that.

Therefore I cannot find the amount so involved a basis for our jurisdiction.

The facts in Dufresne v. Fee relied upon render it distinguishable, and I do not think the decision therein affirms any principle of action which we must abide by herein.

Nor do I find any actual dispute of title involved. And, according to the judicial system in Quebec, as I am advised, this dispute of boundaries within which the timber in question was cut cannot test anything relative to title.

The motion to quash should prevail with costs. J.-It is very clear, I think, that the proceedings out of which- the appeal arises involve a controversy regarding a title to lands and that the appeal is consequently not excluded by section 46. It is not disputed that in other respects the conditions of jurisdiction under section 37 are fulfilled.

J.-I think this case is indistinguishable in principle from Dufresne v. Fee and would, therefore, dismiss the motion to quash.

Motion dismissed with costs.