Majority
(1), decided by the Court of Session, Scotland, in 1914, consisting of Lords Salvesen, Guthrie, Ormidale and Lord Justice Clerk, approves entirely of the judgment in Thatcher v. The Great Western Rly. Co. (2), referred to above and decided that
The latest case on this branch of the appeal is that of Lowery v. Walker, decided by the House of Lords (3), reversing the decisions of the Divisional Court and also of the Court of Appeal.
The material facts in this case were that the defendant, who owned a savage horse which he knew to be dangerous to mankind, put it, . without giving any warning, into a field of which he was the occupier and which he knew the public were in the habit of crossing without leave on the way to a railway station. plaintiff in crossing that field was attacked, bitten and stamped on by the horse.
The County Court judge found as a fact that the defendant was guilty of negligence in putting a horse which he knew to be ferocious in a field which he knew to be habitually crossed by the public and gave judgment accordingly.
The House of Lords, reversingthe decisions of the Divisional Court and the Court of Appeal which haid held the defendant occupier not liable, held that the effect of the learned judge's finding that the plaintiff appellant was in the field without express leave but with the permission of the defendant entitled the plaintiff to recover.
The Lord Chancellor, Lord Loreburn, says, at page 12:- I think the substance of the finding (of the trial judge) amounts to this, that the plaintiff was not proved to be in this field of right; that he was there as one of the public who habitually used the field to the knowledge of the defendant; that the defendant did not take steps to prevent that user; and in those circumstances it cannot be lawful that the defendant should with impunity allow a horse which he Co.
knew to be .a savage and dangerous beast to be lodged in that field without giving any warning whatever, either to the .plaintiff or to the public, of the dangerous character of the animal.
The Chief
The other Law Lords all concurred expressing them- selves substantially to the same effect as the Lord Chancellor, viz., that, although the plaintiff was not proved to be in the field as of right, he was one of the public who habitually used the field to the occupier's knowledge and without his having taken steps to prevent the user and in those circumstances was liable for the injuries inflicted on the plaintiff by the savage horse.
Applying to this case the principles on which Lowery v. Walker (1), was decided, I cannot see, leaving for the moment the question of the statute aside, how it is possible for the company in this case successfully to argue their non-liability for the death of the deceased doctor. Instead of a savage horse as in the Lowery Case (1), we have in this case as Mr. Justice Ritchie says in his judgment an engine running on a windy stormy night, backwards, an extra trip, not a regular train, without lights and a defective (in fact, useless) whistle put on the track and set in motion.
The jury have found this constitutes negligence and that the deceased was prevented from knowing that the engine was coming by the absence of the whistle and lights.
If the jury had found that the running backwards under the circumstances of such an engine shewed a reckless disregard of human life, I cannot believe the company would not be held liable.
The fact that they (1) A.C. 10.
found it was only a careless disregard of human life, cannot, in my judgment, absolve the company from liability.
Dublin, Wicklow and Wexford Railway Co. v. Slattery is in some aspects instructive on this appeal. For instance, on the question of notices having been put up forbidding persons to cross the line at a particular point, it was held that these notices having been continually disregarded by the public and the company's servants not having interfered to enforce their observance, the company could not in the case of an injury occurring to any one crossing the line at that point, set up the existence of the notices by way of answer to an action for damages for such injury. The English text books on the subject are to the same effect as to the liability and obligations of the railway company to a licencee.
See 21 Halsbury, sec. 660 and notes, and Salmon on Law of Torts, pp. 400 to 404.
The decisions of the courts in the United States, though of course not binding on us, are to the same effect as those English cases to which I have referred with respect to the rights of licencees or persons permitted to use lands or premises of an occupier or owner. In the case of Davis v. Chicago and North West Rly. Co. (2), it was held by the Supreme Court of Wisconsin, after citing amongst other authorities that of Gallagher v. Humphrey (3), and quoting Chief Justice Cockburn's judgment in that case with approval, the company's right of way, would relieve the persons passing over the same from being treated as trespassers by the company.
There is a clear distinction between the care which a railroad company is bound to exercise towards mere trespassers and towards those who are on its right of way by the licence of the company, and in case of a long and constant user of such way the company and its servants are charged Co.
with notice of it, and cannot neglect precautions to prevent danger to persons travelling thereon.
Wilful injury is not the only ground of liability in such a case.
hestChief
In Corrigan v. Union Sugar Refinery (1), Gray J. in delivering the judgment of the Supreme Court of that State, said:- The material question is, whether the keg fell upon the plaintiff's head by reason of the negligence of the defendants' servants. If it did, * then whether this was a public or a private way, and whether the plaintiff was passing over it in the exercise of a public right, or upon an express or implied invitation or inducement of the defendants, or by their mere permission, he was rightfully there, and may maintain this action.
Even if he was there under a permission which they might at any time revoke and under circumstances which did not make them responsible for any defect in the existing condition of the way, they were still liable for any negligent act of themselves or their servants, which increased the danger of passing and in fact injured him. See also to the same effect the judgment of the Court of Appeal, State of New York, Barry v. New York Central and Hudson River Railroad Co. (2).
From all the cases I have referred to I find the law of England and of Scotland and of many of the United States of America is the same, namely, that while a mere licencee entering upon premises of the owner does so at his own risk with regard to all normal and ordinary risks which he may incur or be subject to on the premises, the licenser, owner or occupier remains liable to him for injuries caused to him by abnormal and extraordinary risks brought about or introduced through the negligence of the licenser or his servants.
Passing now from this branch of the case to the .
effect of the provision of the Nova Scotia Railway Act, (1) 98 Mass. 577.
N.Y. 290.
sec. 264, before cited, it will be observed that the $.1 section only makes every person not connected with the railway or employed by the company who walks along the track thereof liable to a penalty not exceeding ten dollars.
The section does not intend or purport to deal with ' the rights or obligations of such person so offending to the company or with those of the company to such person.
Whether such person, being one of the general public, had express or implied authority from the company to walk upon the railway would not matter as affecting his liability for the penalty.
If sued for the penalty, proof of such express or limited authority would not be any defence. section was passed as a matter of public policy and was not intended in any way to interfere with the rights or obligations of the parties to each other in the exercise of a permission by the company to walk on the track. When the legislature intended to interfere with or take away such civil or private rights they said so in express terms.
See sections 189 and 262(3), the former of which saysand the latter of which reads as follows:- The legislature, in the section we are interested in, merely imposed a penalty for walking on the track. It uses no language which can be construed as interfering with the relative legal rights of the offending person and the railway.
It simply declares a public policy breach of which gave rise to a penalty.
While therefore, in my judgment, no railway could alter that policy or prevent the attached penalty from oIL being enforced against any offender by any consent it might give, on the other hand, the section carefully abstained from interfering with the private or civil rights or obligations which might arise between the parties by reason of any person walking on the railway track with the permission of the railway.
The penalty for breach of the public policy was absolute whether the railway assented to the breach or not. The obligations of the railway to one to whom it gave permission so to walk were not interfered with or done away with.
Could it for a moment be successfully contended that a wilful injury done to such a licencee from the railway, by its servants, was without remedy. I certainly think not and that such a result never was intended and equally so do I think it was not intended to take away the civil right from such licensee of suing for damages sustained by the negligence of the company in adding additional dangers and risks to those which the licensee assumed in accepting the licence and from which additional dangers and risks he suffered damage.
The case of Davis v. North Western Railway Co. above cited by me on the other branch of the case, expressly determines that such a statute making it an offence to walk upon the track does not alter the rule.
No authority was cited to us in support of the appellant's contention that the section imposing a penalty merely made a person violating it a trespasser and took from him civil rights which he otherwise would possess as licencee against the company giving him such licence.
It seems to me, however, that the language used by the Judicial Committee in the case of Rex v. Broad, (1), is an authority to the contrary of appellant's contention.
It was there held that sec. 191, sub-sec. 2 of the Public Works Act, 1908, of New Zealand, suspended during the period therein referred to the absolute right of the public to pass along a highway over a level crossing but left unaffected the right of those who did so pass to have reasonable care exercised by the railway authority in using the line. Lord Robson, who delivered their Lordships' judgment, says, at page 115:- I adopt this language and think it peculiarly applicable to the penalty clause in question.
On the whole I would dismiss the appeal with costs.
IDJNGTON J.-This is an action by respondent, the widow and administratrix of the late Dr. Herdman, for damages arising from his death alleged to have been caused by the wrongful act or negligence of the appellant.
Deceased on returning from a professional visit to a patient attempted to do so by walking on the railway track of appellant instead of travelling by the common highway, and is found to have met his death by a locomotive and tender moving backward at the rate of about ten miles an hour and overtaking and knocking him down.
This occurred after dark in the evening in February, 1917, in the midst of a snowstorm described by some as "an awful storm" and by others as "blustery and very cold."
The locomotive and tender were returning from a short run taken to assist a train up a heavy grade of "
a mile or more to a station a few miles distant from River Hebert, the home town of deceased, and the station where this ancilliary engine was kept. Jcase was tried before Mr. Justice Drysdale with a jury, who answered ten questions submitted to them, and in answer to the eleventh assessed the damages at $6,000 for which judgment was entered; and that has been maintained by a majority of the Court of Appeal. The first two questions and answers are as follows:- The accident did not take place at or so near to any crossing, 'at or approaching which there might have been involved the breach of a statutory duty to give warning.
The only statutory duty seems to have been, in that regard, to either ring a bell or whistle at certain distances from a highway crossing.
These obligations were fully discharged, as sworn to by the engine driver and fireman in charge, and there is no contradictory evidence on the point.
The whistle was in fact by reason of the frost, as I.understand, out of service.
The sole ground of complaint in law, upon which the judgment rests, is that people in the neighbourhood had been habitually using the railway track, as so often happens, when inclined to take a shorter way in pursuit of any chance errand; and that no one had been prosecuted for doing so though the evil practice had been of such frequent occurrence that local officials of the appellant might be presumed to have had notice of its existence.
The railway track was fenced in, and not the slightest suggestion was made that it had been conceded as a public highway.
It is merely the toleration of such an evil practice, I as pedestrians in many instances adopted, knowing, as some of them frankly said, they did it at their own risk, or, as many others said, without ever thinking of the consequences, that is relied on.
There was a railway bridge over the river in the vicinity, on which some of them crossed; and as an electric line was carried over it a large printed notice had been posted in 1915, by direction of appellafit's superintendent, at each end of it, on which was inscribed a warning:- No other notices of warning against trespassing are in evidence.
The statute law of Nova Scotia contains a provision prohibiting the walking on any railway track, and providing for a penalty being imposed upon any such trespassers.
There is not in that province any provision, such as exists in some provinces, for punishing in like manner petty trespassers on other property.
It is thus clear that what the deceased, on the occasion in question did, and others had been doing, in the way of walking on the track was illegal and rendered him liable to a penalty.
The appellant relies, and I think rightly, upon the decision of this court in the case of the Grand Trunk Railway Co. v. Anderson (1), and other cases holding that there can be no recovery for damages suffered under such circumstances unless something else, than apparent herein, shewing gross negligence, or wilful misconduct on the part of those concerned on behalf of the railway company.
The learned trial Judge relied upon the case of Lowery v. Walker
The charge of the learned trial judge to the jury was obviously influenced by his view of the said decision and hence some of the findings of the jury.
The Court of Appeal adopt the same view and think it is supported by other cases.
I cannot agree that there is anything in that or other cases relied upon, which in principle is applicable to the undisputed facts in this case, and that they did not present a case which should have been submitted to a jury.
I fail to see the resemblance between a railway company running its engine, in course of its daily and hourly exercise of right and discharge of duty, and that of a man who has in fact permitted a pathway to be used across his field with no dangerous animals therein, suddenly and without warning rendering the pathway highly dangerous by turning a vicious animal at large therein.
Even assuming all that is alleged to be true, as to the use by pedestrians of appellant's track, to the knowledge of its management, the risk has never been increased or use of the track for what it was built for changed in the slightest.
If the right of way had been out of use for a time and then suddenly and without warning* put into active service, some analogy might be found in doing so to what the Lowery Case (1) presents.
But in fact this engine was running just as it was accustomed to do about the same hour, if not daily, at least on an average every other day in the week. The distance home for the deceased, where he was going, was shewn to be some three hundred feet longer by the railway than by the road.
The circumstances shew that he chose the railway track instead of the highway because the latter was deeply covered with snow and the railway track not so, because the cars and engines were running thereon and brushing aside or crushing down the snow.
It is not for the courts to impose a new mode of running a railway, or upon those doing so, a new code of regulations for the protection of trespassers.
There are cases such as in evidence in the well known Slattery Case (2), where the station arrangements were such as to mislead, or regulations at crossings such as in The King v. Broad (3), make the conflicting duties of those using the highway and those running the railway often the subject of anxious inquiry, and require a rigorous enforcement of statutory regulations, lest the unwary and accidental trespasser may be caught and a case to submit to a jury arise.
We had such a case in Garside v. Grand Trunk Railway Co. (not reported) a year or two ago in which I had no doubt the deceased was technically trespassing upon the unfenced land of the railway company, yet we maintained the right of action because of the neglect by those running an engine to observe the statutory duties of giving warning.
It was attempted there to shew that a bar across the highway served same as in the Broad Case since reported, took away all right to cross and with it a remedy for killing the pedestrian.
Wherever there is a statutory duty imposed it must be observed.
We have no right to create such a V* duty.
No obligations rested upon the appellant towards the protection of the deceased in the way of lights or whistles.
Of course its servants would have no right to run him down knowingly or recklessly, any more than the defendant in the case of Davies v. Mann (2), had a right to run down the donkey tethered in the highway, or many a like offender has done since.
There is nothing to bring this case within that line of cases. I think the appeal should be allowed and the action dismissed with costs. throughout.
J. (dissenting) concurs with the J.-I am of opinion that this appeal should be allowed with costs of this court and of the courts below for the reasons given by my brother Idington.
J.-This is a case of very considerable difficulty.
The respondent's. husband, Dr. W. W. Herdman, who lived at River Hebert, was killed while walking on the track of the appellant company, on the evening of the 10th February, 1917, between the village of River Hebert and Strathcona, Nova Scotia.
The appellant there operates a line of railway which crosses the river on a bridge and goes up by a rather steep grade toward Strathcona and then continues on to a place called Jubilee.
On the afternoon in question a regular train left Joggins, the other side of River Hebert, a little after 4.30 p.m., and was hauled, on account of the grade, by two engines, the front one, an old engine, driven by Forrest, the engineer, with Landry as fireman.
This front engine was used for getting the train up the grade and at Jubilee it usually returned backwards, tender first, to Joggins.
Dr. Herdman, that afternoon, took the train at River Hebert to visit a patient at Strathcona, where he got out, made his visit and then telephoned at 6.30 p.m. to his wife that he would immediately return.
The night was a cold and very stormy one, with some snow and a high wind blowing across the railway. Dr. Herdman wore a raccoon coat and started out pulling up his collar and pushing down his cap over his ears. , Unfortunately he chose to return by the railway track, a short cut which, the evidence shews, was very commonly used by men, women and even children in preference to the road which Dr. Herdman could have taken but which probably on such a night would have been a difficult one for a pedestrian to travel on.
Later in the evening Dr. Herdman's body was found between the rails a short distance from the railway bridge.
He was killed by Forrest's engine which was returning to Joggins from Jubiles, tender first and without any headlight or any light on the tender. Forrest started from Joggins about 6.15 p.m., and having got his engine under way, shut off the steam and ran down the grade at a moderate speed.
His whistle had become disconnected before reaching Jubilee, and he was unable to repair it on account of the escaping steam before he started to return.
He therefore could not whistle at Pugsley's crossing, just before Strath- TnE cona, but his fireman rang the bell more or less continuously, with however some interruption, the latter says, when he got down from his seat to feed his fire. Both Forrest and Landry say that the storm was so severe that they could not see out of the cab window M u on account of the frost, and they did not think any J. one would be on the tracks on such a night. They never saw the victim and did not know that he had been killed until his body was found.
The case was tried before Mr. Justice Drysdale and a jury, and the latter have found as follows:- 1. Was the proximate cause of the accident that killed Dr. Herd: man the negligence of the company?
If so, state it. What was it? Yes, not having lights and a defective whistle.
2. Notwithstanding such negligence, could Dr. Herdman by the exercise of reasonable care have avoided the accident?
We think the doctor was careless but could not have avoided the accident. 3. Up to the time that Dr. Herdman was killed did the public habitually travel along the defendants' railroad between the villages of Strathcona and River Hebert? Yes.
4. If so, did the defendant company have notice of it? Yes. 5. Before Dr. Herdman was killed did the defendant company interfere with persons so travelling along the railway?
No.
6. Had Dr. Herdman reason to believe that an engine would overtake him without blowing the whistle at Pugsley's crossing and without carrying lights? No.
7. Was Dr. Herdman prevented from knowing that the engine was coming by the absence of the whistle and lights?
Yes.
8. Was an engine running without lights and not sounding a whistle at Pugsley's crossing, more likely to kill a foot passenger at the point where Dr. Herdman was killed than an engine with lights and sounding a whistle at Pugsley's crossing? Yes.
9. Was the running of the engine which killed Dr. Herdman, without lights and without sounding a whistle at Pugsley's crossing a reckless disregard of human life?
No, but consider it careless. 10. What amount of damages do you find; and how much do you allow to the widow and how much to the daughter? $6,000, divided as follows: widow $2,500, daughter $3,500.
In accordance with this verdict judgment was entered against the appellant for $6,000.00, and on an appeal to the Supreme Court of Nova Scotia, this judgment was affirmed by a court consisting of Russell, Longley and Ritchie JJ. Mr. Justice Longley MTHE dissenting.
The appellant now appeals to this court. The jury having negatived contributory negligence on the part of Dr. Herdman-and I do not think that I should interfere with their finding, whatever doubts I might feel on this point in view of all the circumstances-the appellant can, in my opinion, succeed J. only if it shews, 1st, that Dr. Herdman was a trespasser on its line, and 2nd, that assuming he was a trespasser, it has discharged any duty it owed to. him as such trespasser.
To answer the first question regard must be had to the facts found by the jury that up to the time that Dr. Herdman was killed the public habitually travelled along the appellant's railroad between the villages of Strathcona and River Hebert; that the appellant had notice of it and did not interfere with persons so travelling on the railway.
Assuming these facts, was Dr. Herdman a trespasser?
Section 264 of chapter 99 of the R.S.N.S., enacts The courts below relied on the decision of the House of Lords in Lowery v. Walker which in their opinion is not distinguishable from the present case. There the respondent, without giving any warning, put a savage horse which he knew to be dangerous to mankind, in a field of which he was the occupier and which he knew the public were in the habit of crossing without leave on their way to the railway station. The appellant in crossing the field was attacked, bitten and stamped on by the horse. The County Court judge found as a fact that the respondent was guilty of negligence in putting a horse which he knew to be ferocious into a field which he knew to be habitually cossed by the public, and gave judgment for the appellant.
This judgment was reversed by the Divisional Court and by the Court of Appeal but J. the House of Lords set aside both these judgments, holding that the effect of the trial judge's finding being that the appellant was in the field without express leave but with the permission of the respondent, the appellant was entitled to recover..
In this case their Lordships construed the finding of fact of the trial judge as meaning that the appellant was in the respondent's field not as a trespasser but with the permission of the respondent, and they applied the law to this finding of fact.
The appellant cites another .case, Grand Trunk Rly. Co. v. Barnett (3), where the respondent was undoubtedly a trespasser on the platform of a railway car where he was injured.
The case was considered upon this basis by the Judicial Committee, and the respondent's action claiming damages for his injuries was dismissed. Lord Robson, speaking for the Privy Council, held that the obligation of the railway company was merely not to wilfully injure the respondent, that is to say
The real difficulty, to my mind, is the statute which I have cited, and I have not been able to convince myself that what the House of Lords decided in Lowery v. Walker (4), with respect to a field over which, according to the findings of the trial judge, as construed by the House of Lords, the owner or occupier permitted the public to pass, can be applied to a railway line where the law punishes with a- fine
If mere passiveness of a railway company could be regarded as a defence against a criminal action for J. trespass, the statute, which undoubtedly was enacted for the protection of the public as well as of railway companies, would soon become a dead letter. Dr. Herdman chose to walk upon the track, as hundreds of people had donebefore him, probably because he was hurrying to attend a sick call, and his motive was no doubt a good one, but he did so at his own risk and was, in my opinion, a trespasser on the railway. On this point I think Lowery v. Walker is clearly distinguishable from the present case and moreover their Lordships there proceeded upon a statement of facts found by the trial judge which, as construed by them, went further than the facts found in this case by the jury.
When the evidence as to this user by the public of the railway tracks is examined it is seen that two witnesses, Charles A. Smith and Stuart Rector, say they walked on the railway track at their own risk, one, Rufus Hibbard, supposed that in doing so he was a trespasser, and William McIsaac admits. that he did 'not think he had any right to walk on the track. All these were witnesses for the plaintiff. Other witnesses never considered-whether or not they had a right to thus use the railway, but did so because they saw others walking along the tracks.
The railway was fenced in and a notice of warning was placed on the railway bridge.
All this evidence shews a state of facts materially different from what was found in Lowery v. Walker (1).
The second question is, assuming that Dr. Herdman was trespasser on the right of way, did the appellant discharge any duty it owed him not to injure him Vwilfully, according to the rule laid down by the Privy Council in Grand Trunk Railway Co. v. Barnett. other words did
The findings of the jury do not justify an affirmative answer to this question, which would involve a reckless disregard of human life.
The jury refused to find any such reckless disregard of human life and they would not go any further than to state that the running of the engine without lights and without sounding a whistle at Pugsley's crossing was careless.
I therefore must answer this question in the negative.
The case is one where every sympathy may legitimately be felt for the victim of this accident, who, I think, was hurrying to attend to a sick call when he was unfortunately killed. But this sympathy would not justify me in making the appellant pay damages in a case where I am convinced no legal liability exists.
The appeal must therefore, in my opinion, be allowed and the plaintiff's action dismissed. appellant is entitled to its costs here and in the courts below if it thinks fit to collect them from the respondent.
Appeal allowed with costs. Solicitor for the appellants: John S. Smiley.
Solicitor for the respondent: Eugene T. Parker. *June 2. *Oct. 20. ALBERTA ALBIN...................
RESPONDENT. ON APPEAL FROM THE APPELLATE DIVISION OF SUPREME COURT OF ONTARIO.
Railway-Injurious Affection to land-Loss of business profits-Compensation-"Railway Act," R.S.C. s.
Where land is injuriously affected by construction of railway works, the owner is not entitled to compensation for loss of business profits resulting therefrom.
Such compensation can be given only when land is taken.
In the construction of section 155 of the "Railway Act" the English decisions under the " Railway Clauses Consolidation Act" of 1845 to the above effect should be followed.
Idington and Brodeur JJ. (dissenting)
.
Judgment of the Appellate Division (45 Ont. L.R. 1; 47 D.L.R. 587), reversed.
APPEAL from a judgment of the Appellate Division of the Supreme Court of Ontario(l), setting aside the award of arbitrators and referring the case back for reconsideration.
The appellant company by constructing a subway on Yonge street, Toronto, so lowered the grade of the street in front of respondent's shop as to practically destroy access thereto.
An arbitration was had to fix the compensation for such injury and the award gave appellant, inter alia, $4,500 for injury to her business.
The Appellate Division held that she was entitled to indemnity for loss of business but that the arbitrators had estimated it on a wrong basis and referred the award back to be dealt with as stated in the judgment.
*PRESENT:-Sir Louis Davies C.J. and Jdington, Anglin, Brodeur and Mignault JJ.
( ) 45 Ont. L.R. 47 D.L.R. 587.
Geary K.C. and Colquhoun for the appellant. Respondent is not entitled to compensation for loss Repndn copesto of business when no land is taken. Metropolitan Board of Works v. McCarthy(1); Caledonian Railway Co. v. Walker's Trustees(2); Powell v. Toronto, Hamilton and Buffalo Ry. Co.(3); Leblanc v. The King (4).
H. J. Scott K.C. for the respondent.
The English cases respecting compensation for loss of business are not applicable in Canada owing to the difference between our "Railway Act" and the Acts on which those decisions were founded.
See Parkdale v. West(5), 'at p. 613.
Section 155 of the "Railway Act" obliges the company to make full compensation for injury, which means to place the injured party in as good a position as he was before.
THE CHIEF JUSTICE.-I concur with my brother Anglin.
J. (dissenting).-The question raised by this appeal is confined to whether or not under section 155 of the "Railway Act," which reads as follows, the compensation recoverable thereunder is limited by the exact market value of the property taken or, in the case of its being injuriously affected, by the exact difference in such market value before and after it has been so injuriously affected by the exercise of the power in question.
In view of the uniform approval heretofore of this and other courts to the allowance of ten per cent. generally added by arbitrators to the market value of the property taken, the proposition that the market price is the utmost limit seems a little startling. Yet such a proposition seems to be the basis of this appeal which has one merit that it is confined to one exceedingly narrow point.
.
True this case in which the question is raised seems to be one in which the right of property which was invaded was a taking away in two places of the means of access to, and egress from, same to the public highway, and the incidental support an owner is entitled to for his buildings; and thus in one way of looking at the matter may be fairly arguable as a case of injuriously affecting the property.
I incline to agree with the learned arbitrator, as I understand him, that there has been taken from the owner a very substantial part of that which constituted her dominion over or ownership of the property as its owner and that the case is not merely an injurious affection such as might arise from a neighbouring nuisance.
We held in the case of Canadian Northern Ontario Rly. Co. v. Holditch(1), that where the railway company did not touch or legally injure, by the exercise of its powers, a parcel of land as defined by the plan of its survey, the owner could not recover any compensation on either ground and in this were upheld by the court above(2).
How that and numerous other well known cases cited here and below can affect the question to be resolved herein, I fail to see.
It is admitted that the respondent had a very substantial right to indemnity under the Act and all that is before us, as counsel for appellant frankly admitted, is whether or not a person so damnified as to be entitled to indemnity is confined to the difference between the market value of the property when the works touched it and when completed and is not entitled to have any consideration extended to her by reason of the forcible taking away of her rights in any way, such -as in this case the disturbance of her business carried on in the premises in question.
We are not called upon to decide anything in relation to the measure of such damages, or the bearing of any of the elemental facts to demonstrate the cause of such loss or the extent to which they should be considered.
The bare right to any consideration of how injuriously or otherwise the exercise of the power may have affected the owner or her business is denied save as to diminution in market value of the land itself or buildings thereon.
I am and long have been of a different opinion, as evidenced by what I may be pardoned for shewing by quoting from my opinion in the case of Dodge v. The King(1), at page 155, as follows:- That opinion was concurred in by the majority of the court.
It is fair to say that the exact question raised herein was not what was in fact under consideration therein and hence binds no one but myself; yet it was the result of much consideration of many decisions and other authorities.
The usual ten per cent. allowance I therein referred to is intended to cover contingencies of many -kinds. Iington Experience teaches me it has served to prevent injustice in many cases and in most covers incidentally the loss for disturbance of business and possible removal. It is not a rule of law though sometimes it has been sought to be made so for the service of those who actually bought lands they expected to be expropriated and gain thereby. In such like cases it has been discarded by this court when observing that its misapplication had been sought.
The rule now sought by this appeal to be laid down as the meaning of the section 155 in relation to damages for which compensation is to be given certainly never could have been thought to be law or the allowance of such percentage should have been discarded long ago.
In the case of Lake Erie and Northern Rly Co. v. Schooley(1), the question of business value came up in this court in another way and the several judgments evidence how the question was viewed by the different members of this court. I may say that was for many .reasons an unsatisfactory sort of case.
The then Chief Justice aptly put the point by relying upon the decision of the Judicial Committee in the case of Pastoral Finance Association v. The Minister (2), from which, on page 417, he quoted as follows:- This last sentence illustrates what runs through all the cases where the question has fairly come up, and whether put under the name of "special adaptations" or designated by other like phrase, means nothing more nor less than that justice must be done the owner whose land is taken or affected.
In resorting to English authorities decided on the meaning of the "Lands Clauses Consolidation Act, " we must ever be on our guard.; for, as has been often and well said, the provisions differ so essentially from our provisions in the "Railway Act" and other legislation dealing with compensation to be given parties damnified by the exercise of powers given to expropriate that little value is to be attached to most of these English decisions that are usually and herein cited for determining such questions as raised herein. The difference is not to the casual reader quite evident.
It is when one has to examine the process of reasoning and difference of opinion by which the result was reached in the earlier leading cases, such as Hammersmith and City Ry. Co. v. Brand(1), and the consequences flowing therefrom in so many cases, that one feels we better observe the express terms of our own legislation which does not give occasion for the application of the same process of reasoning.
It is idle to read only two sections, one from each Act, and compare the words when we know, or ought to know, that the said decision did not turn upon the consideration of only a single section in the English Act.
For this opinion I need not rely upon what a consideration of many such cases has impressed upon my mind but am content to submit the following quotation cited to us in argument herein by respondent's counsel from the judgment of the court above in Parkdale v. West(1), at page 613:- In the It is the last sentence of this that was important there and is herein for that was a case wherein deprivation of access as herein was the essential feature invoked.
Its due observance coupled with regard to the rule that it is the value of the land to him from whom it is taken for such purposes as he may have been using it that must be primarily observed.
In the great majority of cases of compensation the mere market value is decisive and in all cases must be had in mind, but it should never be forgotten that there are cases such as this where that rule is only to be taken in its primd facie sense as the basis for whatever else is done in order to do justice.
I am ndt to be taken as expressing any opinion on the merits of the case or coinciding with what the learned arbitrator accepted as his guide for fixing damages.
I think the appeal should be dismissed with costs. J.-The grade of the street immediately in front of the respondent's shop having been so lowered in the course of the construction of a subway ordered by the Board of Railway Commissioners as practically to destroy access to the premises, on an arbitration to fix compensation under the "Dominion Railway Act" she was awarded in all $10,866, which the arbitrator, in the written reasons delivered with his award, apportioned as follows:-$6,366 for injury to property and $4,500 for injury to business.
On appeal to the Appellate Division the award as to the injury to property was upheld, but the majority of the court being of the opinion that, while the claimant was entitled to compensation for the loss of business occasioned to her by the execution of the work in question in addition to compensation for depreciation in the value of her property, the three year basis on which the arbitrator had fixed the amount of her business loss as distinguished from injury "of a personal character" (about two-thirds of the whole.net profits) was erroneous, judgment was pronounced so declaring and referring the matter back to.the arbitrator to ascertain the entire compensation to which the claimant is entitled, including as a part thereof such compensation for loss of business as he may see fit to allow her having regard to the declaration of the court(1).
From this judgment the contestant appeals on two grounds:- (1) That the plaintiff is not entitled to compensation for loss of business in addition to full compensation for depreciation in the value of her property occasioned by the lowering of the street level; and (2) That the compensation allowed for the property itself should be reduced by $192, the arbitrator having in computing it deducted from the gross value of the property before the works were begun, ascertained by him to have been $9,274.00, not the $3,100 realized on the sale of it after the works were completed but only $2,908, the difference of $192 representing the claimant's costs incurred in effecting such sale.
Neither the right of the claimant to compensation for depreciation in the value of her property occasioned by the construction of the works nor the power of the Appellate Court to refer the matter back to the arbitrator instead of itself pronouncing the judgment which should have been given is contested J. by the appellant.
As to the former the claimant's right would seem to be indisputable.
There was "a physical interference with a right which the owner was entitled to use in connection with his property" which substantially diminished its value.
Metropolitan Board of Works v. McCarthy(1); Caledonian Rly. v. Walker's Trustees(2), at page 303; Wood v. Stourbridge Rly. Co.(3); Chamberlain v. West End of London and Crystal Palace Rly. Co.(4); Bowen v. Canada Southern Rly. Co. (5), at pages 8-9, and Mason v. South Norfolk Rly. Co. (6).
As to the latter-the power to refer back-the view which I have taken of the merits of this appeal renders it unnecessary to deal with that aspect of the matter. But see Canadian Northern Rly. Co. v. Holditch(7).
For the respondent it is contended that the cutting off of immediate access from the property to the highway on which it abuts is tantamount to taking part of the land itself and that compensation should therefore be assessed upon the footing that part of the claimant's lands had been taken. This appears to have been the opinion of the learned arbitrator based on the view I am clearly of the opinion, however, for the reasons indicated by Mr. Justice Riddell in the Divisional Court and upon such authorities as Wadham v. North Eastern V. ,
Rly. Co.(1); McCarthy's Case(2); Walker's Trustees' Case(3); Macey v. Metropolitan Board of Works(4), and Bowen v. Canada Southern Rly. Co.(5), that the arbitrator's view is erroneous and that where no part of the owner's land is taken, but access to it merely is interfered with, however close the interference and however complete the destruction of the access, the case is one not of the taking of land but of injurious affection.
While, as is stated by the learned writers of the article on "Compulsory Purchase of Land and Compensation" in Halsbury Laws of England, vol. VI., at p. 32, no clear principle can be deduced from the English authorities why the measure of compensation should be more liberal in the case of a. taking of land than in that of mere injurious affection, the distinction is too well established in England to admit of further discussion there. In the former case loss of good-will and loss of business in so far as they enhance the value of the land to the owner, including all that forms part of it in the eyes of the law, may be taken into consideration in estimating the compensation.
The learned authors of Browne & Allen on Compensation (2 ed., p. 101) suggest that
But it is equally "the owner's interest, " that is affected -it is the value of the land to him that is diminishedin the case of injurious affection.
Yet in the latter case to entitle the owner to any compensation the injury must be such as affects the land-lessens its valueapart from the use to which any particular owner or occupier might put it; and profits of a business carried on on the property can properly be considered only in so far as they indicate not any special or exceptional value to the present proprietor, but the value of the property as a marketable article to be employed for any purpose to which it may legitimately and reasonably be put, including of course such a purpose as that for which the present proprietor makes use of it. Wadham v. North Eastern Rly. Co.(1).
This decision is very much in point because it deals with a case of injurious affection by cutting off access to a public highway.
The street in which the house in question was built had been stopped up.
See too Becketi v. Midland Rly. Co.(2), at pages 94-5.
The English authorities are collected in Browne and Allen on Compensation (2 ed.) ubi sup. and at p. 116;.6 Halsbury Laws of England, No. 36 and Nos. 49 and 53; and Cripps on Compensation (5 ed.), pp. 107-8 and 146. Many of them are reviewed in the opinions delivered in the Divisional Court in the present case.
Under English law an award for loss of business profits in a case of injurious affection cannot be maintained. Counsel for the respondent further contended that under s. 155 of the "Railway Act" (R.S.C. 1906, ch. 37) she is entitled to compensation for all injury occasioned to her by the exercise of powers conferred by that statute, and that owing to the difference between the provisions of the Dominion "Railway Act" and those of the English "Railway
Clauses Consolidation Act" of 1845, and the English "Lands Clauses Act" the decisions upon the latter Acts do not govern the construction to be placed upon s. 155 of the Dominion "Railway Act" that under the. Canadian Act the taking of land and the injurious affection of land are precisely on the same footing. Prior to the enactment in 1888, as s. 92 of the "Railway Act" of that year (ch. 29), of the provision now found in the " Railway Act" of 1906 as s. 155, Canadian courts applying the provisions of the " Consolidated Railway Act" of 1879, ch. 9, and the earlier Acts; 31 Vict. ch. 68; C.S.C. ch. 66 and 14 & 15 Vict. ch. 51; had upheld awards of full compensation for all injury occasioned, whether ascribable to the construction of the railway or to its future operation, in cases where an entire parcel of land had been taken, or where part of a parcel had been taken and the injury to the remainder of it was ascribable to the operation of works constructed on the part taken.
Great Western Ely. Co. v. Warner(1); Atlantic and North West Rly Co. v. Wood (expropriation in February, 1887) (2). But, following English decisions, they had refused to recognize the right of the owner to any compensation where neither his land itself nor a right incidental to its ownership had been physically interfered with so as to lessen the value of the land, In re Widder and Buffalo and Lake Huron Rly. Co. (3); Widder v. Buffalo and Lake Huron Rly. Co.(4); or for injury due to operation as distinguished from construction where none of his land was taken; In re Devlin and Hamilton and Lake Erie Rly. Co.(5); or where the works, the operation of which caused the injury, had not been constructed on the portion of his land taken. In Bowen v. Canada Southern Rly. Co.(6), where the lowering of a street in front of two town lots affecting access to them and thus depreciating their value was held to be an injurious affection of land entitling the owner to compensation, Osler J.A. at p. 3, speaking of s. 5 and s.s. 5 of s. 11 of the C.S.C. ch. 66 (the "Railway Act" preceding those of 1868 and 1879), says:
Sec. 155 of the Act of 1906 (ch. 37) takes the place of s. 5 of ch. 66 of the C.S.C., -and s.s. 5 of s. has its counterpart to-day in s. 191.
In The Queen v. Buffalo and Lake Huron Rly. Co. at page 211, Draper C.J., delivering the judgment of the Court of Queen's Bench, speaking of the English statute, 8 Vict. ch. 18, and particularly of s. 68, and of the 6th section of the English statute 8 Vict. ch. 20, said:
The applicability of the English decisions establishing the distinctions between the measure of compensation in cases where land is taken and that in cases of mere injurious affection would seem to have been fully recognized.
See also Widder v. Buffalo and L. Huron Rly. Co.(2); Paradis v. The Queen(3); The Queen v. Barry(4); Leblanc v. The King(5), at page 221; Sisters of Charity v. The King(6) at page 394; The King v. MacArthur(7).
With the law in this position, s. 92 of the "Railway Act" of 1888, ch. 29, was enacted as a new provision presumably to supply the omission from the Acts of 1868 (ch. 68) and of 1879 (ch. 29) of the express provision for compensation found in s. 5 of the former "Railway Act", C.S.C. ch. 66, into which it had been carried from 14 & 15 Vict. ch. 51, s. 4; Bowen v. Canada Southern Rly. Co.(1), at page 9.
The right to compensation under the Acts of 1868 and of 1879 both in regard to land taken and land injuriously affected depended upon J.
the general principle of the law that, unless the contrary clearly appears, legislative intention to authorize the taking away of, or injury to, property without payment of compensation will not be presumed and the almost irresistible inference to be drawn from the provision made for its ascertainment.
Burton J.A. thought the omission from the Act of 1879 of a provision similar to s. 5 of ch. 66 of the C.S.C. quite immaterial.
Bowen v. Canada Southern Rly.(1), at page 4.
Sec. 92 of the Act of 1888 was not meant to create new rights in regard to compensation.
At least that was the view taken of it by the courts notwithstanding the patent differences between its terms and those of s. 5 of the C.S.C. ch. 66, and the difference between its collocation in the Canadian "Railway Act" and that of the proviso in the English statute.
Section 92 was certainly an adaptation of the proviso of s. 16 of the "Railway Clauses Consolidation Act" of 1845, ch. 20 (Imp.), the language of that proviso being reproduced, with some additions immaterial in the present case. At the date of its introduction there was no provision in the Dominion "Interpretation Act" such as is now found in R.S.C. ch. 1, s. 21, s.s. 4.
The construction of this new section so far as applicable to cases of injurious affection was carefully,considered in the Ontario Court of Appeal in Powell v. Toronto Hamilton and Buffalo Bly. Co.(2), at page 215, Osler J.A. says:-
Statutes and regulations cited
-
Unresolved citations
- sections 189
- 262(3)
- Section 264
- section 155
- Section 155
- s. 155
- s. 92
- s. 5
- s. 11
- s. 191
- s. 68
- s. 4
- Section 92
- s. 16