New Hamburg (Village) v. Waterloo (County)

OF

THE

* l

VILLAGE OF NEW HAMBURG

APPELLANTS; *June 24.

(PLAINTIFFS) ....................

.......

AND

THE

CORPORATION

OF

THE

COUNTY OF WATERLOO (DE- RESPONDENTS. FENDANTS)..........

.......................

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. GWYNNE J.-The only question raised upon this appeal is whether or not a bridge over the River Nith in the village of New Hamburg, connecting the parts of a main public highway on either side of the river leading through the county of Waterloo, is a bridge within sees. 532 and 534 of ch. 184, R. 0., that is say, whether or not it is a bridge crossing a river or stream over one hundred feet in width. That the bridge which crosses the river is considerably more than 100 feet in length is not disputed, but it is contended that the river itself is not one hundred feet in width. The evidence shows the river to be one having well defined banks, that upon one side being much higher than that on the other. It is also shown that in ordinary cUYo freshets and even after an ordinarily heavy rain the waters of the river rise as high as the lower bank, white in heavy freshets they overflow that bank;

when, however, the waters in the river rise as high as within one foot of the top of the lower bank and so are flowing within its well defined banks the river is over

112 feet in width, but in dry weather and when the waters are low it is not as much as 100 feet in width.

Now a bridge across such a river is, in my opinion, clearly within the sections in question, that is to say, is a bridge which crosses a river over 100 feet in width and is under the exclusive jurisdiction of the county council whose duty it is to maintain the bridge. After heavy rain and during freshets, which are ordinary occurrences in this country, the waters of the streams and rivers are accustomed to be much swollen and raised to a great height, and a bridge therefore which is designed to be the means of connecting the parts a main highway leading through a county which are separated by a river must necessarily be so constructed as to be above the waters of the rivers in such periods, and the width of the rivers at such periods must therefore, in my opinion, be taken into consideration in every case in which a question arises like that which has arisen in the present case under the sections of the act under consideration.

The appeal must, in my opinion, be allowed with costs and the judgment of Mr. Justice Ferguson restored.

Appeal allowed with costs.

Hilton.