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 REPLY TO THE STATEMENTS MADE 
 - AFFECTINCx THE NORTHERN RAIE- 
 WAY COMPANY OF CANADA IN THE 
 PETrTIOK OF THE CREDfT VALLEY 
 RAILWAY I^OR A RAILWAY COM- 
 MISSION. 
 
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REPLY 
 
 TO THE 
 
 STATEMENTS. MADE AFFECTING the NORTHERN 
 RAILWAY COMPANY OF CANADA 
 
 IN THE 
 
 PETITION OF THE CREDIT VALLEY 
 
 RAILWAY FOR A RAILWAY 
 
 COMMISSION. 
 
REPLY TO THE STATEMENTS MADE AF- 
 FECTING THE NORTHERN kAH.WAY 
 COMPANY OF CANADA in the PETITION 
 OF THE CREDIT VALLEY RAILWAY 
 FOR A RAILWAY COMMISSION. 
 
 In the Petition hf the Credit Valley Railway Company 
 for the appointment of a Railway Commission it 
 is stated as follows : 
 
 " The Northern Railway Company have appropriated a very 
 large tract of land along the shore of the Bay, lying between 
 Brock street and Bathurst street, embracing an area of about 
 forty acres. They have enclosed the same with a fence and so 
 covered the same with buildings, tracks and sidings, as practi- 
 cally to prevent new lines of railway from approaching the said 
 Esplanade from the west. In addition they have appropriated 
 for their main track a strip of land one hundred feet wide from 
 Bathurst street to the western boundary of the City, and al- 
 though, from the growth of the City, the establishment of fac- 
 tories, and the location of public institutions, the said strip of 
 land furnishes the only way of approach for railway lines from 
 the west to the said City, they claim the absolute ownership of 
 the said strip not occupied by the mere track of the Grand 
 Trunk Railway, and either forbid new companies from encroach- 
 ing on the same or dictate such terms of use, as cannot possibly 
 
be complied with. The Northern Railway Company acquired 
 whatever rights they possess in the said lands upon the express 
 understanding that they should pay the said City the value thereof 
 — such value to be settled by arbitration — but although the 
 value thereof was so settled the said Compau) have refused to 
 abide by the Award, and they not only wholly repudiate the 
 same, but they repudiate any liabilit)- to pay the said Citj- 
 anything for the said land. The Northern Railway Company 
 have therefore never paid anything for the said lands, and have 
 not in fact yet acquired a legal title thereto, the fee being still 
 in the Crown." 
 
 The real facts of the case are as follows : 
 
 The Northern Railway Company, under the name of The 
 Ontario, Simcoe and Huron Railrodd Union Company, were 
 incorporated in 1849 by Statute 12th Victoria, ch. 196, and were 
 thereby empowered to take and acquire property, whether 
 belonging to the Crown or otherwise, necessary for the Com- 
 pany's use. 
 
 In pursuance of this power, on the 27th October, 185 1, the 
 then President of the Company, by letter, notified the Ordnance 
 Department that these lands were required by the Company, and 
 they thereupon took possession thereof ; and on the 15th Novem- 
 ber of the same year the Lieutenant General Commanding in 
 Canada made a minute that he had no military objection to the 
 taking of the land; and on the 9th January, 1852, the Secre- 
 tary of the Board of Ordnance in London addressed a letter to 
 the Secretary for the Colonies, recognizing the right of the 
 Company to take the lands, and providing for their transfer, and 
 saying that there was no doubt that, under their charter, the 
 Company could not be considered to have acted illegally in 
 entering the reserve without previous consent, and that the 
 Department could only insist upon compensation in the manner 
 prescribed by the Company's Act, the amount of such compen- 
 
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 sation, when ascertained, to be paid into the " military chest to 
 the public credit" ; and thereupon an order of the Board of 
 Ordnance was sent to the Company, transmitting a copy of the 
 above letter, and approving of the proceedings of the Ordnance 
 Department in Montreal, under which the Company had taken 
 possession. 
 
 ^y an Act of the late Province of Canada (19 Vic, ch. 45), 
 the Ordnance lands were transferred to and vested in Her 
 Majesty for the benefit of the Province, subject, however, to all 
 sales or agreements entered into, and specifically, and in words, 
 reserving the rights of the Company in regard to these lands. 
 
 In 1859 the Railway, in consequence of the financial 
 embarrassments of the Company, became unsafe for travel, and 
 was so reported to be by the Government Engineer, and, in 
 consequence, an Act was passed (22 Vic, ch. 89,) whereby the 
 Company, its property and franchises, were vested in the 
 Crown, for certain purposes therein set out ; and by Section 2 
 of this Act the Governor in Council was authorized, upon 
 certain terms," to transfer the same back to the Company, or to 
 the bondholders, or both; and on the 12th May, 1859, an 
 Order in Council was passed, transferring back to the Company 
 its property and franchises, upon certain conditions as to pro- 
 viding money and otherwise for putting the road in proper 
 condition. 
 
 This Order in Council was confirmed in the following 
 year by Statute 23 Vic, ch. 105, and the Company claim • 
 that under it they have and hold a statutory title to this 
 property. The Company, as will be .seen, have been in con- 
 tinuous possession since 185 1 up to the present time. 
 
 After the Company had taken possession, the Provincial 
 Governnjent granted a license of occupation to the City of the 
 
water frontage in Toronto between Peter Street and the 
 Queen's Wharf, in consideration of their constructinj^s within a 
 certain time, an esplanade between these two points. This 
 license, however, expressly reserves the claims of the Ordnance 
 Department, the military authorities,"and those of the Company. 
 As the Company were then in possession under their charter 
 powers, it is quite clear that the Crown could in no way and did 
 not intend to affect the rights of the Company. It is, however, 
 not necessary to consider this, as the City expressly and deliber- 
 ately abandoned any intention of attempting to build an 
 Esplanade between Brock street and the Queen's Wharf, on the 
 grounds, as will be seen by the reports of the City Council, that 
 the cost of so doing would be too great, and up to this time the 
 City of Toronto have not expended one single dollar upon the 
 property, while the Company have expended, in filling in and 
 otherwise, between $300,000 'and $400,000, besides paying to 
 the City annually in the shape of taxes several thousands of 
 dollars. Even therefore supposing that the Company did not 
 possess a statutory title, there is no possible basis upon which 
 the City can set up any claim to be paid for these lands, as 
 allowing that the license of occupation included them 
 which, however, the Company deny, the City have never com- 
 plied with the license of occupation, and if the Company have 
 still to pay for them the money would have to be paia to the 
 Imperial " military chest to the public credit," or to the Crown. 
 Ic may be added_that by the^Esplanade Act of 1853, Sec. 10, 
 it is declared that it shall not apply'to or affect any lands or 
 property vested »in the principal ofifices of Her Majesty's 
 Ordnance. It is probably unnecessary after what has alread\- 
 been stated to take^'notice of the reference^in the Credit Valley 
 petition to the award in favour of the City. This supposed 
 arbitration ."was from the first formally b\- notice in writing 
 repudiated by the Northern Railway Company, and they paid 
 no attention whatever to it, and the City of Toronto have 
 obtained and have in their possession the opinions of Counsel 
 that the Award is void and utterly worthless, 
 
The statement also in the petition that the N. R. Company 
 forbid new companies from encroaching on their lands or 
 dictate such terms of user as cannot possibly be complied with, 
 is entirely incorrect. On the contrary the Company have 
 shown every disposition to afford the Credit Valley Railway 
 every reasonable facility for entering the City, as i> well known 
 to the chief officers of the latter Company. 
 
 G. D'ARCY BOULTON, 
 
 Soiicitorfor tlie Northern Railway Company of Canada. 
 
 Toronto, 26th March. 1879.