SUPREME
COURT
OF
ONTARIO.
DUFF J.-This appeal turns on a dry question of law, namely, the application of section 433 of the
Ontario. Municipal Act of 1913.
The section is in the following words:- 433. Unless otherwise expressly provided, the soil and freehold of every highway shall be vested in the corporation or corporations of the municipality or municipalities, the council or councils of which for the time being have jurisdiction over it under the provisions of this Act.
This section replaced sections 599 and 601 of the
Municipal Act of 1903, the text of which was in these words:- 599. Unless otherwise provided for, the soil and freehold of every highway or road altered, amended or laid out according to law, and every road allowance reserved under original survey along the bank of any stream or the shore of any lake or other water, shall be vested in
His Majesty, His Heirs and Successors.
601. Every public road, street, bridge or other highway, in a city township, town or village-except any concession or other road therein, which has been taken and held possession of by any person in lieu of a street, road or highway laid out by him without compensation thereforshall be vested in the municipality subjept to any rights in the soil reserved by the person who laid out such road, street, bridge or highway.
has been held by the majority of the Appellate Division that the effect of the legislation of 1913 is to abrogate rights existing at the time the legislation was passed secured by the provision of sec. 601 that DuffJ.
the interest vested in the municipality shall be Sections 599 and 601 of the Act of 1903 have had a place in the Ontario municipal legislation for many years and have been the subject of a good deal of discussion and the general effect of the decisions appears to be correctly stated by Mr. Biggar in his Municipal Manual at p. 818, namely, that as regards highways created by dedication "the soil and freehold" were vested in the municipality subject as in that section 601 provided.
In this general view of see. 601 the Act of 1913 effected, as regards such highways, no change in the law presently relevant, unless, as has been held by the Appellate Division, by repealing section 601 it did as regards such highways abrogate the rights secured by the language above quoted.
I am unable myself to agree with this conclusion and I think that section 14 s.s. (c) of the Interpretation Act points to the principle which ought to be applied if indeed its language does not expressly cover the case. That section is in these words:- In the case at least of highways established by dedication after the passing of section 601 or its parent enactment, one is not, I am inclined to think, exceeding the bounds of reasonable construction in holding that the right of the dedicand was a right "acquired under the Act" and therefore protected by this clause.
But whether that be or be not strictly so the Act of
1913 ought, I think, to be read in light of the canon of construction laid down in Canadian Pacijfc Ry. Co.
v. Parke (1), applying the language of Lord Blackburn in Metropolitan Asylum District v. Hill (2):- The words "soil and freehold" are not words of such aptness and precision as one might have expected to find if the intention had been to transfer the full and unincumbered proprietorship a coelo usque ad centrum;
and indeed obviously the dominium of the municipality is subject so long as the highway remains a highway to the public right of passage exercisable by all His Majesty's subjects.
In the result the construction contended for would disable the municipality from acquiring only a stratum of land sufficient for highway purposes in a case in which the acquisition of the soil ad centrum (in the case e.g. of a highway laid out over a mining property)
might entail a great deal of unnecessary expense and inconvenience.
The better view appears to be that the subject matter with which the legislature is dealing is the title held at' the time of the passing of the Act by the Crown or by some public authority subject to the public right of user as a highway.
If that is the
1subject matter to which the enactment is directed and I think that conclusion is justified by the character the existing legislation, then the principle of construction applies that general words should not be DuffJ.
extended so as to involve collateral effects upon the rights of individuals which the legislature must be presumed not to have contemplated.
Railton v. Wood (1).
J.-The findings of the learned trial judge are now fully accepted with the result that the right of the appellant to maintain the raceways in question across Pine street, a public highway, prior to the enactment of the Municipal Act of 1913 (3 & 4, Geo. V, ch. 43) is conceded.
The sole question on this appeal is whether that legislation destroyed or took away such right without compensation.
Such a confiscatory effect will not be given to a statute unless it be inevitable.
Maxwell on Statutes, 6 ed., The intention to accomplish that result must be expressed in clear and unambiguous language, 27 Hals., Laws of England, No. 283.
Here it has been inferred chiefly because of the omission in section 433 of the Municipal Act of 1913, which replaced sections 599 and 601 of the Municipal Act of 1903 (3 Ed. VII, c. 19), of the words
It is obvious, as is pointed out by Justice Middleton, that there must be some restricton on the broad meaning which it is sought to attribute to the language of section 433.
Certain rights which form part of the soil and freehold of highways were not thereby vested in the municipalities.
I agree with that learned judge that it is reasonably clear that the purpose of the change made by the Act of 1913 was to do away with some uncertainty and confusion that arose from the former legislation which, while or providing that highways should be vested in the municipalities (s. 601), at the same time declared
(s. 599) that the soil and freehold thereof were vested in the Crown. Apparently to overcome this difficulty the legislation of 1913 vested the soil and freehold in the municipalities, thus transferring to them the proprietary rights theretofore held by the Crown.
The attainment of the purpose of the amendment does not require interference with easements, such as that held by the plaintiff, and reasonable effect, and I think the full effect intended by the legislature, can be given to the language of section 433 without involving their confiscation.
Moreover I doubt whether the language is aptf or appropriate to carry a mere easement enjoyed over the highway, since an easement is only a right in the owner of a dominant tenement to require the owner of servient land "to suffer or not to do" something on such land and neither forms part of the ownership thereof nor involves a right to any part of its soil or produce.
Gale on Easements, 9 ed. 91.
In reaching the conclusion that the appeal should be allowed and the judgment of the learned trial judge (1), restored, I have entirely put out of consideration the amendment of 1919 (9 Geo. V. c. 46, s. 20) brought to our attention by Mr. Lennox.
(See
Boulevard Heights v. Veilleux) (2).
If, notwithstanding 18 and 19 of- the Interpretation Act, any inference may properly be drawn from this enactment it would seem to afford an indication that the view of the effect of the legislation of 1913 above stated J probably accords with 'what the legislature intended. Of course s. 19 precludes any inference that the statute of 1913 before 'the amendment of 1919 had the effect for which the respondent contends or that such amendment was necessary to give it the effect for which the appellant contends.
The amendment was obviously passed to meet the decision of the Appellate Division in this case and may well have been introduced merely ex majori cautela.
The appellant is entitled to his costs here and in the Appellate Division.
BRODEUR J.-It is common ground that the street under which were the raceways in question had been dedicated as a public highway by the predecessor in title of the plaintiff-appellant and that the dedication was subject to his right as owner of certain mills to enjoy the raceways across the street.
The public highways were before 1913 partly vested in His Majesty and partly vested in the municipalities (1903, ch. 19, ss. 599 and 601).
The vesting in the municipality was made subject to any rights in the soil reserved by the person who laid out the road (section 601).
In the year 1913, it was enacted that all the roads would be vested in the corporation.
It is true that the old sections 599 and 601 of the Municipal Act were repealed and that no formal provision was enacted as to the reservations that the former owners of the road possessed under the old law. But it seems to me that the object of the statute of 1913 was simply to bring a change as to the vesting of the highways from His Majesty into the municipal corporations.
The repeal had not the effect of affecting any right, privilege or easement that the appellant possessed concerning those raceways (s. 14 R.S.O. ch. 1).
The appellant still possesses the right which he reserved to himself when his predecessor made his dedication to use these raceways and continue the industrial development which he could make with his mills.
I entirely concur in the views expressed in the
Appellate Division by Mr. Justice Middleton.
The appeal should be allowed with costs of this court and the order of the trial judge restored with a proviso however that it shall not become operative for a period of six months, to enable the municipality in the meantime, if it so desires, to expropriate the right or easement in question.
J.-I concur with Mr. Justice.Anglin.
Appeal allowed with costs.
Solicitors for the appellant: Aylesworth, Wright, Moss
& Thompson.