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ABBOTT 
 
 ON THE 
 
 Railway Law of Canada. 
 
? 
 
 iV 
 
 'A 
 
A TREATISE 
 
 ON THB 
 
 RAILWAY LAW Of CANADA. 
 
 I'MURAcrNO 
 
 Constitutional Law. — The Law of Corpoiations. — Railway Securities. 
 
 Kniini-nt l^omain. — Contracts. — Common Caiiicrs. — Negligence. — 
 
 Damages.— Master and Servant. — Text of Dominion and 
 
 Provincial Railway Acts, etc. — Forms of I'ro- 
 
 ceedin(;s in Expropriation. 
 
 II V 
 
 Ol' THE MONTRKAI. I'lAR, 
 
 Pio/issor of Commniial Lin*.!, McGill University , 
 
 7^57 
 
 'N 
 
 MONTREAL : 
 
 C. THEORET, LAW BOOKSELLER AND PUBLISHER, 
 
 II and 13 St. James Street. 
 
 1896. 
 
 / m 
 

 1^-^ 
 
 I 
 
 
 Entered accottling to Act of I'arliament, in the year 1896, by J. Thcret, 
 in the office of the Minister of Agriculture. 
 
 ( 1 9i ^X 
 
 M 
 
To Tiir. 
 
 HONOURABLE MELBOURNE MacTAGiJART TAIT, D.C.L., 
 
 ACTINii ClIIKF .MlHIICK OK TIIH SUI'EUIOU CoUKT FOU 
 TIIK DiSTUICT OF MONTKKAL, 
 
 In a.liniriition of liUgreiU ability ami sterling (jualities; and in grateful 
 lenicnibniiuc ami acknowlcilj^nieiit of nmcli kimlne.''?^ and 
 cunrtesy, both wliiU- associatid with him at the 
 l$ar and afttT hif elevation to the Bench, 
 
 This Wokk 
 
 Is respectfully dedicated 
 
 Bv the Author. 
 
PRKFACK. 
 
 The author does not presume to offer this work to the 
 pubh'c and the profession as a complete treatise on Rail- 
 way Law generally, but, as he hopes it may prove to be, 
 a useful handbook of the law applicable to railway compa- 
 nies in this country ; and he trusts it may supply, in a prac- 
 tical and useful form, a want which has been felt for such a 
 book. No attemi)t has been made to reproduce the enor- 
 mous mass of English and American jurisprudence in 
 railway cases ; nor does the author pretend to give the 
 whole jurisprudence of this country, but believes that the 
 reader will find in the ensuing pages most of the leading 
 cases of authority bearing upon the majority of questions 
 affecting railways which have arisen in this country. Re- 
 ferences will be found to some American cases which have 
 seemed particularly in point, or wliich illustrate questions 
 not authoritatively decided in this country, but generally 
 the leading American text-writers have been quoted. A 
 freer use has been made of the jurisprudence of the 
 English Courts and of English text-writers, either in cases 
 arising under English statutes similar to our own, or to ex- 
 plain the English law on any given point. References are also 
 made to the jurisprudence and text-writers of France ; but 
 more sparingly, as the statute law of that country afifecting 
 railways is in many respects radically different from our 
 own. 
 
 The author must crave the indulgence of his professional 
 brethren in other provinces than Quebec, if they miss 
 many familiar faces in their jurisprudence omitted in this 
 work. They must attribute such omissions rather to his 
 
i V 
 
 rREIACK. 
 
 iinfamiliarily, as a member of the (Juel)ci: H.ir, with tlieir 
 case law, than to any failure of effort of research on his 
 part to ascertain its leading principles. 
 
 The general scheme of the book has been to give, as far 
 as possible, in consecutive order anti sequence, tlie princi- 
 ples of law, statutory or olheiwise, governing railway com- 
 panies, in their incorp )ration ami organization, in the 
 obtaining of financial means to carry on the undertaking, 
 the accjuiring of land and rights of way, the construction 
 of the road, its operation, and the rights and ...biliiies 
 consequent upon the exercise of their powers and the carry- 
 ing on of railway business. In addition, there has been 
 printed in an appendix the text of the Railway Act, with 
 references in each section to any differences in the various 
 Provincial Acts, the sections of the Crimin.il Code, and 
 .some special statutes, affecting railways, as well as some 
 forms, which it is hoped may prove of use to tlii' practi- 
 tioner. 
 
 The author cannot let this book go forth from the 
 press without acknowledging his great indebtedness to Mr. 
 V. L. Snow, Librarian to the New York Life Insurance 
 Company in Montreal, for valuable assistance in collecting 
 material for, and in the compiling of, this book ; and to 
 Mr. R. T. Ilcneker, of the Montreal Bar, in kindly giving 
 access to his private collection of Railway cases. 
 
 H. A. 
 
 MoNTKKAi., 29th February, 1896. 
 
 li 
 
CONTB-NTS 
 
 rAr.Ks 
 
 ('liaptcr I. — Introductory t 
 
 *' II. — Organization and management of Railway 
 
 Companies ir 
 
 *♦ III.— Shares and Shareholders .... .^4 
 
 " IV, — General Powers 73 
 
 " v. — I'inancing of Railway Companies M 
 
 *• VI. — Receivers i?5 
 
 '• VII. — Kminent Domain. ,. 136 
 
 " VIII. — Construction of the Railway 218 
 
 " IX. — Operation of the Railway 270 
 
 '* X — Carriers 294 
 
 " XI. — Negligence 363 
 
 " XII. — Tlie Measure of Damage 418 
 
 Appendix, 'I'he Railway Acts i to clxxx 
 
 A'\ilylical Index 643 
 
I -i, 
 
 I 
 
 ill!, 
 
 l! 
 
 1-i 
 
 !ii 
 

 LIST OF ABBREVIATIONS 
 
 OK 
 
 CANADIAN 11 E PORTS. 
 
 Oram's Cliy , Upper Canada Clianceiy Kepoit;;. 
 
 U. C. C. r Upi->er Canada Common Pleas. 
 
 U. C. Q. B Upper Canada Queen's Bench. 
 
 ^' 1^ Ontario Uejiorts. 
 
 Ont. !'• R Ontario Practice Reports. 
 
 Ont. A. R Ohtario Ajipeal Reports. 
 
 I" ^- 1^ Lower Canada Reports. 
 
 L- C. J Lower Canada Jurist. 
 
 R. L Revue Ldgale. 
 
 M. L. R., S. C Montreal Law Reports Superior Couit. 
 
 M L. R., Q. B " " " Queen's Bench. 
 
 I" N Legal News (Montreal). 
 
 L. C. L. J Lower (.'anadu Law Journal, 
 
 Rev. de I^g Revue dc Legislation. 
 
 Q. L. R fiiiebec Law Reports. 
 
 Q. R., S. C (Quebec Oflicial Reports Superior^Court. 
 
 Q. R., Q. B Quebec OlTicial Reports Queen's Bench. 
 
 M. L. D. d- R Monthly Law Digest c- Reporter (Montreal;. 
 
 Man Manitoba. 
 
 N. W. T. Rep North West Territories Reports. 
 
 IL C liritish Columbia. 
 
 Geld &^ Oxley Nova Scotia Report.*. 
 
 Russell and Geldert. ... " " 
 
 N. S «' « 
 
 I'ugs New Brunswick Reports. 
 
 N. B <' <« 
 
 •''• C. R Supreme Court Reports, Canada. 
 
 R "The Reports" England 
 
IPC" 
 
IITIDEX: TO CA.SES 
 
 Adams v. Lancashire d-= York Ky 368 
 
 Addlestone Linoleum Co . re 87 
 
 Albert Cheese Co. t'. Leeming 224 
 
 Aldridge v. (Jreat Western Ry 3»8 
 
 Alexander v. Toronto o-" Nipissing Ry 34.^ 
 
 Allan V. Manitoba df N. \V. Ry. Co 130, 152, 135 
 
 •« V. City of Montreal 204 
 
 <' .'. Merchants Marine Ins. Co • 374 
 
 " 7. Mullin 373 
 
 «' r. Woodward 361 
 
 Allen V. Hay ward 235 
 
 Alley ^'. Trenholme .... , 39 
 
 American Bridge Co. v. Heidelback 105 
 
 Ames V. Trustees of Birkenhead Docks 126, 131, 132 
 
 Anderson v. Duke, etc., Gold Mine Co « 1 1 
 
 " r.C. P.Ry 268,361, 362 
 
 «« 7. Fish 3'6 
 
 Anderson's Case S7 
 
 Anglini'. Nickle 201 
 
 Angus z'. Montreal, Portland d-^ Boston Ry. Co lb, 17 
 
 Appleyard ^jr/<jr<t? 8? 
 
 Arbitration between Ontario and Quebec, and Gen. Taylor m re 175 
 
 Arlesst'. Belmont Manufactuiing Co 35. 3^ 
 
 Armour v. Michigan Ry. Co 29 
 
 Armstrong v. Portage, Westbourne <S-^ Northern Ry 221 
 
 Arnot's Case *7 
 
 Ashurst 7'. Mason • 25 
 
 Ashworth J'. Biislol Ry. Co »7 
 
 Athenteum Life Assr. .Soc. in re 1 > « 
 
 Atkinson 7'. G. T. Ry 3f2 
 
 " 7'. N. 6^ G. Water Works 3^6 
 
 Atlantic d-' Northwest Ry . Co. r. Bronsden 202 
 
 «« « " 7. Descarries 175, 203 
 
 «i «« " r. Dunn 146 
 
 « «« " V.Johnson 196 
 
 i( «• "7'. Lavall6e 203, 204 
 
 « «« " 7', Leeming 188, 212 
 
 M « " 7. Prud'homme 212 
 
 i« «« " 7. Trudel 202 
 
 i« '« " 7'. Whitfield 203 
 
 w , •« << 7. Wood 208 
 
 c« ' «« <• 7'. Walker 210 
 
 Attorney Gen. 7'. Atlantic d-^ North Western Railway 246 
 
 " 7'. Grand Trunk Ry 84 
 
 •• 7. London Tramway Co >66. 170 
 
 •« 7'. Midland Ry 217 
 
 «• 7, Mid.-Kent Ry 234 
 
 
The Railway Law of Canada. 
 
 m 
 
 Attorney Gen. f. M. C, I*. Ry. and Trustees of Turnpike Road.... 82, 
 
 Auclnir :'. Kastien 
 
 Auger r'. Ontaiio iS-= Simcoe ^S*^ l^ke Huron Ry 268, 
 
 Austin V. Guardians of Bethnal Green 
 
 Australian Steam Navigation Co. r'. Marzetti 
 
 Baby 7'. G. VV. Ry. Co 
 
 Badgerow ?•. G. '1'. Ry 
 
 Bagshaw 7\ Eastern Union Ry. Co 
 
 Bahia vSr" San Francisco Ry. C. in re 
 
 Bailly t'. Riclielieu tS-^ Ontario Nav. Co 
 
 Baker t'. Louisiana Portable Ry 128, 
 
 Balkis Consol. Co. t\ Tomkinson 45, 
 
 Ball?'. G. T. Ry 
 
 Baltimore, etc., Ry. Co. i'. Wilkens 
 
 Bank of England :■. Ilartga 
 
 " " -'.Parsons 
 
 " " 7'. Lunn 
 
 ' ' of Montreal t\ Sweeny 
 
 " " 7'. Simpson 
 
 •' of Toronto r'. McUougall 
 
 " " 7'. Cobourg, etc., Ry. Co 23,112, 
 
 Banque d'Hoclielaga ?■. Garth 
 
 " " 7. M. P. d-^ B. Ry 217, 
 
 " Jacques Cartier ?'. Banque, etc., de Montreal 
 
 Barham 7'. Ipswich Dock Commissioners , 
 
 Barrett t. Pullman Car Co 
 
 Barrow's Case 
 
 Bartlelt 7'. West Metrop. Tram. Co 
 
 Barry 7'. Ross 
 
 Bate 7'. Canadian Pacific Ry 297, 
 
 Bates 7' . Great Western Ry 
 
 Baxendale >'. Bennett , 
 
 Beal 7'. South Devon Ry 
 
 Beard 7'. Credit Valley Ry 
 
 Beatiy I'. North West Transportation Co 
 
 Beaudet ■:; I he North Shore Ry. Co 193, 
 
 Beauharnois Jet. Ry. Co. 7'. Bergevin 77, 145, 
 
 " " 7. Hainault 
 
 Beaumont 7'. Canadian Pacific Ry 
 
 Beaver 7'. G. T. Ry 283,285, 
 
 Beckett 7'. Midland Ry. Co 179, 
 
 Behan 7'. G. T. Ry 312,418, 419, 
 
 Beliveau v. Barthe , 
 
 * ' 7'. Clement and Chevrefils 
 
 Bell 7'. City of Quebec 82, 164, i8i, 
 
 Bender 7'. Can. Southern Ry 406, 
 
 Benner 7'. Currie 
 
 Benning 7'. Atl. &• N. W. Ry. Co 149, 152, 153, 156, 159, 160, 
 
 192, 196, 199, 
 
 Benoit 7'. Benoit 
 
 Bergheim 7'. Great Eastern Ry.... 
 
 Berlinguet 7'. The Queen 
 
 Bernardin v. Municipality of North Duflferin 
 
 Bertrand 7'. The Queen 
 
 Bethell f. Clarke 
 
 Bettridge 7'. Great Western Ry. Co 
 
 253 
 425 
 402 
 
 222 
 
 222 
 33 
 
 393 
 87 
 45 
 
 3«i 
 
 129 
 
 46 
 
 410 
 
 29 
 
 49 
 49 
 49 
 49 
 50 
 21 
 
 "3 
 
 36 
 
 232 
 
 33 
 23s 
 358 
 
 88 
 130 
 229 
 ,361 
 
 307 
 118 
 
 309 
 269 
 21 
 197 
 216 
 
 '45 
 306 
 286 
 180 
 420 
 140 
 140 
 182 
 407 
 62 
 
 200 
 140 
 
 349 
 226 
 220 
 244 
 316 
 141 
 
 HI 
 
Index to Cases. 
 
 XI 
 
 68, 402 
 
 1 
 
 ... 222 
 
 
 .. 222 
 
 
 •• 33 
 
 
 •• 393 
 
 
 87 
 
 
 ,. 45 
 
 
 .. 3" 
 
 
 28, 129 
 
 
 ♦5, 46 
 
 
 .. 410 
 
 
 .. 29 
 
 
 .. 49 
 
 
 •• 49 
 
 
 .. 49 
 
 
 .. 49 
 
 
 .. 50 
 
 
 21 
 
 
 '2, 113 
 
 
 .. 36 
 
 
 17, 232 
 
 
 •• 33 
 
 
 • • 235 . 
 
 
 •• 358 
 
 
 .. 88 
 
 
 .. 130 
 
 
 .. 229 
 
 
 >7. 361 
 
 
 • • 307 
 
 
 .. 118 
 
 
 •• 309 
 
 
 . . 269 
 
 
 ..21 
 
 
 »3, 197 
 
 
 ^s. 216 
 
 
 •• '45 
 
 
 . . 306 
 
 ^^1 
 
 $5. 286 
 
 
 '9, 180 
 
 
 9. 420 
 
 
 .. 140 
 
 
 ..140 
 
 
 I, 182 
 
 
 6, 407 
 
 ^^^^H 
 
 62 
 
 
 •0, 
 
 
 9, 200 
 
 
 140 
 
 
 ■• 349 
 
 
 . . 226 
 
 
 . . 220 
 
 
 . . 244 
 
 
 .. 3'6 
 
 
 .. 141 
 
 
 Belts r. Willianishur{,' Ry. Co 
 
 Bickford ?'. Cliatham 
 
 " r: Grand Jet. Ry 96, 97, 
 
 Bigaouette r'. Noith Shore Ry 179, 184, 
 
 Bilbee r . London, Uiighton d-^ S. C. Ry 
 
 Birch T. Cropper 
 
 Bird's Case 
 
 Black 7'. Haxendale 
 
 Blake 7. C. P. Ry 
 
 Blamires r. L, •S-' Y. Ry 
 
 Blanchard ?•. Windsor er= Annapolis Ry 
 
 Blanchet 7'. Charron 
 
 Blower t. Great Western Ry 
 
 Blumenthal r'. liiainard 
 
 Blum T-. Southern Pullman Car Co 357, 
 
 BIyth's Case 
 
 Boggs T. Great Western Ry 
 
 Booth ?'. Mclntyre 
 
 Bouchertfille , ■. G. T. Ry 
 
 Bourdeau ?■. G. T. Ry 
 
 Bourdon 7'. Bernard 82, 
 
 Bourgoin '■. The M.O. <Sr»0. Ry 192, 
 
 Bowen f. Can. Southern Ry 164, 
 
 Bower f. Peate 
 
 Bowie 7'. BulTalo, Hrant iS^' Goderich Ry 
 
 Bradburn i". Great Western Ry 
 
 Brand t; Hammersmith Ry. Co 85, 166, 167, 
 
 " !■'. Schenectady Ry 
 
 Brantford, Waterloo i':?' Lake Erie Ry. i: IIufTman 
 
 Brazier v. Polytechnic Institution 
 
 Braughr. G. T. Ry 
 
 Hooker 
 
 Mongeau &' The Montreal 6^ Sorel Ry 79, 1 39, 
 
 Brewster ■ 
 
 c< 
 
 Brice f . Munro 
 
 Bridge 7'. G. Jet. Ry 
 
 Bridges 7\ North London Ry -114, 
 
 Briggs V. G. T. Ry .•*. . 
 
 Brigs f. Ry. Co 421, 
 
 Bristol 6^ Exeter Ry. Co v. Collins 304, 
 
 British Bank 7\ Turquand 
 
 •' Columbia Saw Mill Co. 7'. Neltleship 
 
 '• Farmers Pure Linseed Cake Co 
 
 Bi itton 7'. Great Western Cotton Co 
 
 Brodeur7'. Corporation of Roxton Falls 164, 180, 181, 
 
 Brodie v. Northern Ry 
 
 Uronsden cf a I. ?■. The City of Ottawa .' 
 
 Brooke 7\ Toronto Belt Line Ry 
 
 Brown 7'. Allan 
 
 " 7\ Brockville d-' Ottawa Ry 
 
 " 7. Can. Pacific Ry 
 
 " 7'. Grand Trunk Ry 
 
 " 7', Le Maire de Montreal 
 
 " 7'. The Ottawa (Sr' Brockville Ry. Co 
 
 " 7\ The Commissioners for Railways 
 
 " V. Toronto cr= Nipissing Ry 
 
 Brunell7. C. P. Ry 390, 
 
 '55 
 
 9< 
 
 100 
 
 193 
 407 
 
 70 
 
 38 
 421 
 
 384 
 366 
 425 
 148 
 
 311 
 128 
 
 358 
 88 
 
 384 
 217 
 267 
 388 
 249 
 
 19s 
 179 
 
 235 
 3«9 
 425 
 168 
 
 382 
 230 
 327 
 307 
 290 
 216 
 
 53 
 368 
 370 
 287 
 422 
 
 III 
 
 420 
 
 88 
 
 366 
 
 248 
 
 319 
 80 
 
 77 
 227 
 
 268 
 322 
 
 268 
 28 
 32 
 177 
 256 
 391 
 
1 
 
 xi: 
 
 The Railway Law of Canada. 
 
 II 
 
 lirunet r . Montreal &' Ottawa Ky . Co 
 
 Bruty T . Grand Trunk Uy 344, 346, 
 
 Urydges t'x parte 
 
 Uuccleugh, Duke of:'. Metiojiolitan Boaid of Works 168, 
 
 liuckraaster r', (ireat Eastern Ky 
 
 liuffalo, Uranlford d^ Goderich Ky. Co. v. Parke 
 
 BuUr'.UuU 
 
 Bunch 7'. Great Western Ry 
 
 Burgess ;'. Grey 
 
 Burke :■. Grand Trunk Ky 258, 
 
 Burkinshaw r. Nicholls 56, 69, 
 
 Burr 7'. Gamble 
 
 Burrows ;'. March 
 
 Bury 7'. Corriveau Silk Mills 27, 
 
 Bush in re 
 
 Butcher v. London d~= S. W. Ky 350, 
 
 Butler 7- Manchester, ShefTield i^-^ Lancashire Ky 
 
 Butterfield 7'. Forrester 
 
 Cadwallader r. Grnnd Trunk Ky 344, 
 
 Cahill 7'. London >5-= North Western Ky 344, 
 
 Caledonia Ky. Co. r. Walker's Trustees 82, 165, 178, 
 
 Cameron 7'. Wigle 
 
 Campion's Case 
 
 Campbell 7^. Grand Trunk Ry 261, 297, 
 
 7', Great Western Ky 402, 406, 
 
 7'. Jones 
 
 7'. McGrego" 
 
 -,\ St. Lawrence Sugar Kefininj; Co 
 
 . Ontario, Huron d-^ Simcoe Ry 239, 
 
 ' ' 7'. Nystrom 
 
 Canada Atlantic Ry . Co. '' ■ Stanton 
 
 T. City of Ottawa 
 
 7'. Norris 204, 
 
 7'. Mosely 
 
 ."'. Moxley 409, 
 
 T. Sauve 
 
 Murray 26, 27, 32, 220, 224, 
 
 riie Queen 
 
 Canada Car cr^ Manufaciurinj; Co. ?•. Harris 
 
 Canada Southern Ky, Co. 7. Cunningham 
 
 " " 7'. Clouse 256, 257, 
 
 " " 7'. Erwin ", 
 
 7'. Norval 156, 
 
 7'. Phelps 364, 409, 410, 
 
 7'. Jackson 367, 390, 
 
 7'. Hayes 
 
 7. Johnfon 329, 331, 
 
 7'. Landty 
 
 7'. Pichetle 
 
 7'. Northern Pac. iZ-^ Manitoba Ky 
 
 7'. Seminary of Ste. Th6rcse 190, 
 
 7 . Major 7, 
 
 7'. Goyette 
 
 7'. Pellant 
 
 7'. Lawson 367, 
 
 7'. Chateauvert 367, 
 
 « 
 « 
 
 X 
 
 Cameron 
 
 
 Canada Central Ry. ; 
 
 II 
 
 « 
 
 (1 
 
 (( 
 
 << 
 
 <| 
 
 Canadian Navigaiiim Co 
 
 Canadian Pacific Ky. Co 
 it 11 
 
 H 
 
 
 l< 
 
 
 l< 
 
 
 <( 
 
 
 II 
 
 
 «« 
 
 
 U 
 
 
 <t 
 
 
 •43 
 347 
 
 28 
 
 '71 
 .14' 
 
 64 
 201 
 
 3S» 
 
 32 
 
 259 
 
 88 
 201 
 366 
 
 33 
 205 
 
 353 
 285 
 368 
 348 
 346 
 
 '79 
 140 
 
 23 
 
 406 
 407 
 
 3'5 
 412 
 
 390 
 269 
 
 389 
 12 
 90 
 
 207 
 
 370 
 4«3 
 4«7 
 230 
 90 
 42 
 199 
 
 259 
 256 
 
 :os 
 
 413 
 
 39' 
 345 
 332 
 242 
 242 
 264 
 210 
 79 
 33^ 
 356 
 382 
 
 3S5 
 
Index to Cases. 
 
 3t^ 
 
 12 
 
 t 
 
 
 Canadian Pacific Ky. Co. r . Clialifoux 
 
 «« " ;•. Cadieux 374i 
 
 •« " ;. Fleming 3*^"» 
 
 « " f, Mcl-aicn 
 
 ft '• r'. Uobinson 
 
 Can.il Co. r . Archer 
 
 Canlin ?'. The Nortli Shore Ky 
 
 Cardinal r . La Cic. du I heniiu de Fer de lieauharnois 
 
 Carleton limnch Ky. : . tirand Souihern Co 
 
 Carling's Cise 
 
 tlarj-entcr r . N. Y , N. 11. ^-" 11. Ky. Co 357, 
 
 Carpue :•. 1,. C-= H. Ry 
 
 Carron :■. ( ireat Weslorn Ky 
 
 Casgraiii r . Atlantic ..'-^ Noi ill Western Ry 
 
 Casey :■. C. P. Ky 379. 384^ 
 
 Caston's Case 
 
 Carter r'. Molson 
 
 Cathedral of Holy 'ninity 7\ The W. ( ). P. Ky. Co 
 
 Cawihra r. 1 lamilton (St'L. K. Ky. Co = 
 
 '• T . llaniillon C- N- W. Ky 
 
 Central Vermont Ky. ?■. l.areau 
 
 <• " ?■. Moiii.nagny Insurance Co 
 
 Chalifou.x r. C. P. Ky 29s- ^97. 3'^, 3?3. 325. 370. 
 
 Chamberlain :■. West of Lon. e- Crystal Palace Ry. Co. 1 78, 180, 187, 
 
 Chapman : . 1 ladson 
 
 T . Great Western Ry 320,322, 
 
 Chappell's Case 
 
 Chaibonneau r . C. P. Ry 
 
 Charitable Corporation r . Sutton 
 
 Charleboisr. C. N. W. Cent. Ry. Co «oo, loi, 
 
 Chassniore r. Richards 
 
 Chartier r . (1. T. Ky 
 
 Chester:'. Man., Sheffield, etc., Ry- 
 
 Chewelt r . G. W. Ky 
 
 Chicago C-^ .\lton Ky. Co. r. Willard 
 
 " e-= N. W. Ky. :■. City of Chicago 
 
 Childs ?■. New Haven &^ Northampton Ky 
 
 Christie ;■. Griggs 323. 
 
 Christin '■. Union Navigation Co 
 
 City Bank r . Harrow 166, 
 
 " r . Cheney 
 
 City of Glasgow Union Ky. Co. r. Hunter 167, 168, 
 
 '• of Dublin Steam Packet Co. r. Midland, G. W. Ry 
 
 " of Montreal r. l.abelle 
 
 " of Three Rivers :■. l.essard .... . . 
 
 " of Toronto r . Leak 
 
 Clarke ?'. London School 15oard 
 
 " i.G.l.Ry 
 
 Clark T'. Chambers 
 
 Clayes :■. Darling 
 
 Cliff -'. Midland Ry 
 
 Cobban f.C. P. Ky 282, 297, 301, 
 
 Cockburn r . Starnes 
 
 ' ' 7-. Tuttle 
 
 " ?■. lieaudry 42, 
 
 Coggs ;'. Bernard 
 
 371 
 375 
 383 
 4'3 
 425 
 186 
 
 "39 
 176 
 
 233 
 88 
 
 359 
 370 
 243 
 
 25' 
 
 38s 
 
 SS 
 
 33 
 
 216 
 
 190 
 
 2'S 
 
 335 
 417 
 
 37' 
 238 
 148 
 
 355 
 
 44 
 
 306 
 
 2.5 
 
 102 
 
 183 
 300 
 
 323 
 213 
 286 
 257 
 '55 
 325 
 4' 
 
 275 
 110 
 171 
 279 
 
 425 
 82 
 200 
 185 
 213 
 366 
 
 65 
 
 407 
 
 310 
 
 55 
 
 55 
 
 59 
 
 295 
 

 XIV 
 
 The Railway T,aw ok Canada. 
 
 Cohen r. Wilkinson 87 
 
 Cole 7'. Ryan 44 
 
 Collard r. South Eastfrn Ky 4^' 
 
 Collins r. New York Central .fl- II. K. Ky 412 
 
 " 7\ M. L. Cuminissionurs 366 
 
 Colonial Hank ?■. Williams 50 
 
 Commercial IJank of Canada :: Gr N. W. Ky. Co 1 1 1 j"' 1 19 
 
 Comi)at;nie cluCh.de Fer Central r. Le(;enilre 139, '216 
 
 " (les Wagons- 1, its ."■. Epoux Harthelemy '360 
 
 * ' du Grand Tronc ?'. I luard 7 
 
 Conger ;'. G. T. Ky 267 
 
 Connecticut '•. Ohio, etc., Ky. Co ', 29 
 
 " 6^ I'assumpsic Ky. Co f. Comstock 40 
 
 '. Gre.tt Northern Ky 311 
 
 Connelly 
 Connors : 
 Conway : 
 C'ooley ~\ 
 Cooper 7' 
 Corner r'. 
 Cornnian 
 
 . G. 1'. Ky 402 
 
 . C. P. K\ 399 
 
 Grand 'I'runk Ky 405 
 
 Young 422 
 
 Bird 372 
 
 ". Eastern Counties Ky 334, 402 
 
 Corporation du Comte d'Otlawa :•. i^. M. O iSr' O. Ky. Co 15 
 
 " of Parish of St. I.ihoire r • G. T. Ky 245, 254 
 
 of Parkdale f. West 77, 82, 161, 178, 249, 216 
 
 of St. Joseph 7'. (Quebec Central Ky . . . . ! 5 
 
 of St. Valentin 7'. Comeau 245 
 
 of Tingwick t. G. T. Ky 244, 269 
 
 of Township of Pembroke 7'. Canada Central Ky 246 
 
 of County of Welland v. UulTalo vS-^ Lake Huron Ky 217 
 
 of Ottawa 7'. Montreal, Ottawa d-' Western Ky 423 
 
 City of St. Thomas 7'. Credit Valley Ky 91, 424 
 
 of Pontiac t. Hon. J, G. Koss 93 
 
 of Town of Harrie ~'. Northern Ky . Co 81 
 
 of Koxton Falls f. The South Eastern Ry. Co 164 
 
 of the City of (Quebec 7'. Quebec Central Ky. Co 96, n8 
 
 of County of Drummond 7'. South Eastern Ky. Co 102 
 
 of Lanark and Renfrew 7'. Cameron no 
 
 Londonderry, etc., Ky. Co 70 
 
 Leduc 392 
 
 Stadacona Insurance Co 39, 60 
 
 Couch 7'. Grand Trunk Ry 366 
 
 Craftcr r'. The Metropolitan Ky 334 
 
 Craig 7' , Great Western Ky 287 
 
 Crawford 7'. Cincinnati Ky 286 
 
 Credit Valley Ry. Co. 7. G. W. Ry 82, 264 
 
 Crcvier f. Ont.irio d-^ (Quebec Ry. Co 258 
 
 Crewson 7». G. T. Ry 187,238, 239 
 
 Crickmer's Case 88 
 
 Crocker ?;• Old Colony Ry . Co 46 
 
 << 
 (I 
 
 • t 
 ft 
 II 
 (I 
 <i 
 « 
 i( 
 (f 
 (I 
 
 M 
 «• 
 
 • I 
 
 Corry r. 
 Cossette 
 Cote 
 
 Croft 7'. London d-N. W.R. Co 187, 238, 
 
 Crofts 7'. Walerhouse 323, 
 
 Cross 7\ C. P. Ky 
 
 Crowe 7'. Steeper 
 
 Cunningham 7. G. T. Ry. Co 31, 287, 
 
 Cur6of St. Anne 7'. Ottawa d^ (Quebec Ry 198, 
 
 Curran f. Grand Trunk Ry 
 
 Currie 7', Couture 374 
 
 243 
 
 327 
 406 
 
 399 
 
 389 
 200 
 
 376 
 
Index to CAi,:L;s. 
 
 Wf 
 
 Annapolis Ry. Co. 
 
 i^ 
 
 ■'i 
 
 .283, 
 
 :'83. 
 
 Curryi. C. P. R 
 
 Curwin v. The Windsor 
 
 Curtis 7: G. T. Ry 
 
 CuttiiiB ■'• i^y. * " 
 
 Daly 7'. Cunningham 
 
 Daoust !■'. La verdure 
 
 Dancey 7'. G. T. Ry 
 
 Daniels 7'. Directors, etc., of Met. Ry. Co. 
 
 " :■. Potter 
 
 " V. Grand Trunk Ry 
 
 « ' 7'. Hart 
 
 Darlaston Local Board 7'. London or^ N. W. Ry 
 
 Darley Main Colliery Co. ;•. Mitchell 187, 
 
 Darn ley, Karl of 7'. L. C. «&• D. Ry. Co 
 
 Davuy 7'. London d-' S. W . Ry 
 
 " 7', London d-' North Western Ry 
 
 Davidson 7. Grange 
 
 " 7. Canadian Shipping Co 348, 
 
 Davis 7' . Gray 
 
 Davis 7'. The Railroad 
 
 " T/.G. W.Ry 
 
 « 7.0 i'. Ry 
 
 Davies 7. Mann 
 
 Dawson v. Mancliester, ShefBeUI, etc., Ry 
 
 '• 7'. Trotler 
 
 Day 7'. Town of Guelpli in n 82, 246, 
 
 DeBlois 7'. The Queen 
 
 Delano's Case 
 
 Delaware, Lack. &' West Ry. t. Erie Ry. Co 
 
 Deminf; 7 . Ry. Co ^ 
 
 Denaby Colliery Co. 7'. The Manchester, etc., Ry. Co 
 
 Denham &* Co. in rt; 25, 
 
 C. P. Ry 
 
 Leslie 
 
 The Great Northern Ry 
 
 r. M. P. 6- B. Ry.Co 95, 
 
 P. Ry 
 
 r'. Gauthier 377, 
 
 Desrousseau 7/. Boston d-^ Maine Ry 
 
 Deverill 7. G. T. Ry 
 
 Devlin 7'. G. T. Ry 
 
 DeWinton ?• Mayor of Brecon 
 
 Dionner. C. P. Ry 
 
 Evans 
 
 Richelieu Nav. Co 
 
 Richelieu &" Ontario Navigation Co 
 
 , Ontario Bank 
 
 . Windsor d-" Annapol is Ry 
 
 . Ont , Simcoe dr" Huron Ry 
 
 Dolsen re 
 
 Dominion Oil Cloth Co. i'. Coallier 377, 
 
 Dorani'. G. W. Ry 
 
 Douglas 7'. G. T. Ry 
 
 Dowes 7'. Ship 
 
 Dresser z' . Norwood 
 
 Drinkwater v. Deakin 
 
 Drummond 7', Holland 
 
 Delornie7'. 
 Denison 7' . 
 Denton t. 
 Desrosiers ; 
 Desy 7'. C. 
 Desroches '• 
 
 Dixon V, 
 Dixon '■. 
 
 Dobell 7.' 
 Dodge 7'. 
 Dolrey 
 
 337 
 336 
 426 
 421 
 
 •50 
 376 
 426 
 326 
 3O6 
 
 399 
 121 
 279 
 269 
 •SO 
 
 3«4 
 
 380 
 
 18 
 
 357 
 128 
 
 347 
 287 
 
 339 
 368 
 
 323 
 409 
 
 250 
 
 57 
 128 
 421 
 
 275 
 
 71 
 
 312 
 
 57 
 340 
 
 >i3 
 
 406 
 
 392 
 38s 
 389 
 3'-'7 
 127 
 306 
 
 55 
 362 
 
 345 
 225 
 422 
 
 399 
 140 
 
 390 
 223 
 
 399 
 58 
 33 
 18 
 
 129 
 
1 
 
 X!Vt 
 
 The Railway I-aw of Canada. 
 
 It 
 
 Dublin, Wicklow, eic, Ry. r. Midland G. W. Ky 279 
 
 Dublin, Wicklow. J-^ Waterfotil \<y. r. hlaltery 369, 370, 381 
 
 Dulnic r. Montreal ..- Sored Ky 259 
 
 Duff :■. Great Nortliei n Uy 342 
 
 Duffy ;'. Thompson 148 
 
 Duke;'. (1. \V. Uy 283 
 
 Duke of Hiiccliuch .. Mctrop. lio.itd of Works. .. .16S, 171, 178, 187, 195 
 
 Dumlilc :■. Tilt' l'eterl)orouj;li «S-^ l-ike Chumonjj Ky. Co 63 
 
 Dunalwij; C Willi isk Ky. r . Hopkins 227 
 
 Duncan r . ('. 1'. Ky .<o6, 407 
 
 l)unlup r . Canada Cent ml Ky . . . , 140 
 
 " 7'. 'lownsliip of \'ork 214 
 
 Dunsinn ;', Insp. Gas Cu 25 
 
 Du^-sault 7 . Niiilh Hh.ire Ky 415 
 
 Hddy riie 322 
 
 Lnple ,-■. Cliarinj; Cross Ky. Co 166, 185 
 
 Earl of Darnley r. London, Chailiam &^ Dover Ky 150, 198 
 
 East and West Inilia Dock kS"' Hirniin(>liain jet. Ky. .-■. Gattke 18S 
 
 Eastern 'I ownsiiipM Hank 7'. Municipality of Coniplon. 112 
 
 Eaton 7'. European 6^ Not th. Ky. Co 31 
 
 '• 7'. The Kailroad Co 331 
 
 Edjjar and Wife 7 . 'I'lie Northern Ky 334 
 
 Elbin^jer .\ctien ( icssellschaft 7'. Armslronj,' 422 
 
 Ellis 7. SliflVield Gas Consumers Co 32, 234 
 
 *' 7'. The Midland Ky 223, 225 
 
 Erbr.G. W. Rv .'. 29 
 
 Essex 7'. Local lioard of Acton , 168 
 
 Etherinnton 7. Wilson .. 18 
 
 Evans 7'. Atlantic d-^ N. W. Ry. So, 81, 154, 185 
 
 ** z*. Coventry 125 
 
 Evershed ;■. North West Ry 276 
 
 1' . Street iii n- 186 
 
 Fairbanks 7'. O'llalloran 17 
 
 " 7-. Great Western Ry 249, 253 
 
 Falconer 7'. The (^ueen 176 
 
 " T. European &^ North American Ky 369, 402 
 
 Farlinfjer »S~= The Village of Morrisburg in >v no 
 
 Faimer t\ McNeil 130 
 
 Faucher r. North Shore Ky 386 
 
 Faure Electric Accunudaior Co 24 
 
 Featherston 7. Cooke 1 26 
 
 Fellowes 7'. Ottawa Gas Co 1 15 
 
 Ferric 7'. Great Western Ky 289 
 
 Fero 7\ HuHalo, etc., Ky 412 
 
 Ferris 7'. Grand Trunk Ky 404 
 
 Field 7'. Galloway 62 
 
 Firth 7'. North Eastern Ky 353 
 
 F'itch 7'. Newberry 291 
 
 Fitzgerald 7'. Midland Ky 341 
 
 Fitzherbert 7'. Mather 33 
 
 Fitzpatrick 7'. Gieat Western Ky 305 
 
 Flannigan ?■. C. 1'. Ky 410 
 
 Fleckner 7'. U. S. Hank 222 
 
 Fleming and Wife r'. Newjiort Ry 82, 82, 165 
 
 Flitchcrofi'g CiK 25 
 
 Floiida 7'. I'ullmanCar Co 358 
 
w 
 
 Index to Cases. 
 
 XVII 
 
 279 
 
 3»i 
 259 
 
 342 
 -<48 
 283 
 •95 
 
 63 
 227 
 407 
 140 
 214 
 
 25 
 4>S 
 322 
 
 •85 
 198 
 18S 
 112 
 3' 
 33' 
 334 
 422 
 
 234 
 225 
 
 29 
 168 
 
 18 
 '85 
 
 'as 
 
 276 
 
 186 
 
 '7 
 
 253 
 176 
 402 
 no 
 150 
 386 
 
 24 
 126 
 
 "5 
 
 289 
 412 
 
 404 
 62 
 
 353 
 291 
 
 341 
 
 33 
 
 3fS 
 
 410 
 
 222 
 
 '65 
 25 
 
 35« 
 
 l'oil)» r . '.(o?! jn, etc., Ky 
 
 I'orcl r . Me'.iopolitan Ky. Co , 
 
 " • . London >!-^ South Western Ky . 
 
 I'ordvce : . Kiarn* 
 
 Kiiieit;n Cias Co. '<■ 
 
 Fosilick r'. Scliall 
 
 Ko'ter e~ (ireat Western Ky. in >r . . , , 
 
 !• ouclu-r : . Nonh .Sliore Uy 
 
 I'oiichon ; . Ontaiio ii;-- CJucIm-'c Ky 
 
 I'liui'tainc ; , ("ormaitlicn Uy. Co 
 
 Kiiwles ,-. Great Western Ky . 
 
 I'oy V, London, Itrij^liton J-^ S, C, Ky.. 
 
 I-'raiuis 7 . Cockerell 32f'» 
 
 ,211, 
 
 • 397. 
 
 420 
 
 iSs 
 
 325 
 409 
 88 
 '35 
 215 
 375 
 426 
 II I 
 308 
 326 
 
 327 
 
 l''ra^ 
 
 ;■. Koliertson ^7 
 
 !■ rederick r . Mar(iiiette .... 
 I'reeman t' O. iSr" Que. Ky 
 J'liller ;■. Ciiand 'I'runk Ky . 
 
 I'uliiin 7 . G. 1'. Ky 
 
 I'lirness 7\ Caterliam Ky . . . 
 Gagnon 7'. Korsytlie 
 
 286 
 201 
 3S8 
 283 
 '25 
 374 
 
 Gat-t; 7 . Vetter 386 
 
 Galbraiih:. Walker '50 
 
 Gallinr'. London J- N. W. Ky 342, 343 
 
 Gait :■. I rie, etc., Ky 101,130, 217 
 
 Galveston Ky. Co. 7'. Cowdrey '"S, '06 
 
 GaniWe 7 . ( ireat Western Ky 350» 352 
 
 Gardner 7'. London, Cliatham &> Dover Ky. Co loi, 127, 130 
 
 Gairttt 7. Salisbury v> 1 toisct Jet. Ky 226 
 
 Garside 7 . The Proprietors of the 'Irent C-' Mersey N.-iv. Co 320 
 
 Ciaskell 7. Chambers 24 
 
 Gautliier 7\ C. P. Ky 3^5 
 
 Geaiiyeau 7'. G. W. Ky 7^ 
 
 Gedd'es 7 . The loronto Street Ky. Co "', '12 
 
 Gee 7'. Metropolitan Ky 326, 368 
 
 Gei main 7', Montreal c-' New York Ky 267 
 
 Gibson 7'. Mu-kett. 
 
 Gilbert's Case 
 
 Gilley r. Miller 
 
 Gillies 7'. Great Western Ky . . . , 
 
 Gillinghani 7'. Dempsey 
 
 Gilnian 7'. 111. e,-' Miss. Tel. Co. 
 
 ,10; 
 
 426 
 
 44 
 149 
 
 399 
 420 
 106 
 '7 
 67 
 
 •' 7'. Kob.-rtson IS» 
 
 " 7: Kobertson (Sr» The Koyal Can. Ins. Co 15, 
 
 Ginyras 7'. 1 )esilets 425 
 
 Glasgow J-= London Ins. Co. 7. C. P. Ky 409 
 
 Glasier -■. Kolls 70 
 
 G'ass 7'. Hope 66 
 
 Glover -■. North Staffordshire Ry. Co 185 
 
 Golf 7 . Great Northern Ky 289 
 
 Good rhani ?■. Toronto er^ Nipissing Ky. Co 133, 135 
 
 (jood win 7'. O ttawa &• Prescott Ky 48 
 
 Gordon 7'. G. T. Ky 307 
 
 Gosselin 7 G. T. Ky 
 
 Government of Newfoundland z\ Newfoundland Ry. Co. . 
 
 Grace r . Adams 
 
 Graham ?■. Toronto, Grey d-^ Bruce Ry 3 ' , 
 
 • • • • t • 
 
 78 
 233 
 303 
 330 
 
T 
 
 XVIII 
 
 The Railway Law or Canada. 
 
 II 
 
 Graham ; . Hirkeiilitail Ry «7 
 
 7: (Jreal Western Ky 387 
 
 (iiatiil I unction Ky. C'u. ?'. Miillnnd Ky. Co 74 
 
 Grand Trunk Ky. Co. '■. Corp. of reterhnroiigh 92 
 
 •' " 7\ ,:t />,ir/i- 28 
 
 '* " 7\ Cr)rp. of i^vis 110 
 
 •• " r. Credit Valley Ky I3S 
 
 '* *' r. Kaslcrn Townships lliink I08 
 
 " " :■. I'it/^jerald 30 
 
 " " r. Mivillu 82. 83 
 
 " " r. Webster 46, 424 
 
 " " r. UoulnnKer 33f'> .?''7> .^7' 
 
 " " r . Fit/KcraUl 313 
 
 *' " ;. Go(llM)iU 249.3831 384 
 
 " " :■. Gutmnn .'. 318 
 
 " " :. lluard 255, 256 
 
 •' " ;. Huston 319 
 
 " " :. McMillan 305 
 
 " " :. Miville 242 
 
 *' " '.Mountain 313. 319 
 
 T.Sibl.al(l 245,366,382, -,8^ 
 
 «♦ r. Heckett 3<'7. 384. 4^5 
 
 " " r. KosenlHirger 364,360,367,382, 3S4 
 
 " r.Vonel 361 
 
 " " r. Tremayiie ^66 
 
 " " ;•. Wilson 370 
 
 " " r. Kichardson 4I2 
 
 " " r.MecKan 415, 416 
 
 " " r. Jennings 424 
 
 Grant r . Northern Pacific Ky 305 
 
 Great Laxey Gold Minini; Co. r. Clagis 174 
 
 Great Luxembourg Ky. Co. ;■. Magnan 24 
 
 Great Northern Ky. ?'. Harrison 332 
 
 '* " T'. Hawcrott 340 
 
 " " f. Shepherd 345 
 
 Great We.stcrn Ky. r'. Brown 387 
 
 " " r. Hunch 360, 350 
 
 " " r. Braid 370.323.326, 327 
 
 •* " r. Baby 193, 196 
 
 *' " f. Chauvin in re 196 
 
 " •' ZJ, Dddds I96 
 
 " " r. Hunt 194 
 
 ♦• " r'. Laderonte 192 
 
 *• " 7. Miller 190 
 
 '• " r.Kolph 193 
 
 •• *' -'. Crawfoid 290 
 
 «• " :■. G. T. Ky 279 
 
 •« " /'. Wdlis 314 
 
 *• " r. .Sutton 273 
 
 " " 7. McCarthy 300 
 
 Gray 7\ Johnston 49 
 
 Greenland ?'. Chaplin 364 
 
 Grebert Borjjius :■. Nugent 422 
 
 Greiiier t. City of Montical 269 
 
 Grimes t. Harrison 25 
 
 Giiflin 7\ Great West. Ky. Co 30, 314 
 
Index to Cases. 
 
 XIX 
 
 Urimihaw i'. (irnml Trunk Kv I90 
 
 (Jrote t. ChfMer &" Ilolylicail Ry 3^7 
 
 Groulx r. Wilson 39* 
 
 (;roiilx r . C. I'. Ky 4o6 
 
 lluilbiult 7. McCrecvy Ji6 
 
 (liinii's Cnsf 37 
 
 Cwatkin .-. Ilnrritun 53 
 
 Ilaikcti r. Ky. Co 42^ 
 
 Had Icy t. Hnxendalo 41^ 
 
 lliilcrow :'. I.cmcsiirier 3" 
 
 I laley r . Chicago c- North Western Ky 2S6 
 
 I laiilan ; . (ircat Western Ky 337 
 
 Halifax Sujjar Uetininj; Co. tr 08 
 
 Hall I'. McFa<Men 337- 36S 
 
 " f •. North Kasicrn Ky 342 
 
 " 7. (i. T. Ky 319. 35.1 
 
 " ?'. Can. Co|)|)er, etc., Co 388 
 
 Hallmark's Case 25 
 
 Hamilton &* I'ort Dover Ky. Co. :■. The Gore Hank 27, 33, 223 
 
 '• 7 . Hudson Bay Co .419, 420 
 
 " 7. K. K. Co • .»22 
 
 '< 7. McGill. 4" 
 
 " 7. Transit Co 126 
 
 " :•. Wilson 201 
 
 • vS- Hrook Road Co. ?■. Great Western Ky 255 
 
 " 7. Grand 1 runk Ky 307 
 
 Hamlin 7 . Great Northern Ry 339, 34 1 
 
 Hammersmith Ky. Co. ■■. Krand 170, 172 
 
 ] lammock 7'. White 402 
 
 Hampton 7'. rnllman Palace Car Co 35S 
 
 Hanlcn 7. S. H.of H. Ky 366 
 
 Harden 7'. rhillii)s 23 
 
 Hare 7'. London d-' N. W. Ry , 279 
 
 Harris' Case 37 
 
 Harris 7'. Dry Dock Co 60, 63, 66 
 
 " 7'. Kdmonston 297 
 
 " 7'. Great Western Ry 303 
 
 Harrison 7'. Mexican Ky. Co 89 
 
 Harrold 7 . Great Western Ry 334 
 
 Hart 7 .Jones 297, 314 
 
 " 7', I'enn. Ry. Co 301 
 
 Harvey 7', Harvey 59 
 
 " 7.C.P.Ry 333 
 
 Hatton7'. M. I'. iSf H. Ry. Co 16, 19, 20 
 
 Hawkins -'. Bourne 32 
 
 " 7. Great Western Ry 311 
 
 Hayes 7'. M. C. Ry 366 
 
 Heaven 7', Pender 363 
 
 Heazle t. Indianapolis Ry 32; 
 
 Hebb's Case 37 
 
 Hegeman 7'. The Railway Co 327 
 
 Henderson 7'. Stevenson 343 
 
 Hendrie 7'. Grand Trunk Ry 116 
 
 Henry 7, C. P. Ry 314 
 
 Heirick v, Ccntial Vt. Ry 226 
 
 Herring 7'. Napanee, etc., Ry. Co 194, 199, 2co 
 
XX 
 
 The Railway Law of Canada. 
 
 I 4 i ■ 
 
 Ileriing t\ Metiop. Hoard of Woiks l8o, 184 
 
 Hewitt r. Ontario, Simcoe &" Huron Ry 410 
 
 I libbard t. New York c" Erie Ky 286 
 
 Hill 7. M. S. Ky 29 
 
 <' -■. G. T. Ky 259 
 
 " ;•. Ontario, Simcoe o^ Huron Ry 413 
 
 Hillynrd 7. (;, T. Ry 262 
 
 Hirsclie 7'. Sims 68 
 
 Hitclinis 7'. Kilkenny Ry. Co 52 
 
 Hobbs 7'. Lond. (jr' S. W. Ry 365, 289, 339, 341 
 
 Hochel.Tf^a Hank 7'. M. P. iSr" H. Ry. Co 102 
 
 Hod{,'son :■. Tlie Karl of I'owJs 87 
 
 .lodkinson 7'. London u~= N. W. Ry 321, 353 
 
 HodLjes 7'. Tiie Railway Co 322 
 
 Hogan 7'. Dorion 29 
 
 " '■. G. T. Ry 3'9, 353. 354 
 
 Hole 7'. Sittintjboutnc, etc., Ry. Co 32 
 
 HoHinger 7'. 0. F. Ry 384 
 
 Holmes r. Moore 355 
 
 Hooper 7'. The Kiie &> Huron Ry. Co. in re 190 
 
 Hopkins r\ CJreat North Western Ry. Co 185 
 
 Home 7', Midland Ry. Co 418, 421, 422 
 
 Horseman 7'. G. T. Ry 313 
 
 Hotclikiss 7. Hall 201 
 
 Household Fire Ins. Co. f. Grant 37 
 
 Howard's Case 40 
 
 Howe 7'. The H. e- N. W. Ry 251, 367 
 
 Hoyt 7'. Quicksilver Miniiig Co 89 
 
 Hudson 7'. Midland Ry. Co 346, 348 
 
 «' r. I., e- N. Ry 383 
 
 Hughes 7'. C'anada I'ernianent Invest. Soc 221 
 
 " 7'. I'eici val 235 
 
 " 7. McFie 366 
 
 Huntsman 7\ G. W, Ry 426 
 
 Hurd 7', Grand Trunk Ry 401 
 
 Ilurdman 7'. Can. Atl. Ry 390, 393 
 
 Hutchinson 7'. (iuion 314 
 
 ■•^ l*l<y 323.329, 33' 
 
 Illidge 7'. Goodwin 3b6 
 
 Illinois Central Ry. 7'. Willenborg 257 
 
 " " 7'. Copeland 348 
 
 Imperial liybopnthic Hotel Co. 7'. Hampson 23 
 
 Inderwick 7'. Snell 23 
 
 Indianapolis Ry. Co. t. Ilorst 323, 325 
 
 Ingersoll c~= The Thaniesford Gravel Road Co. 7'. McCarthy 59 
 
 Ingledew 7'. Ry, Co 421 
 
 Inman 7'. HufTalo e-" Lake Huron Ry 319 
 
 Ingalls 7 . IHIIs ,. 323, 326 
 
 Ionic, The 348 
 
 Iron Ship Coating Co. 7'. Hlunt 22 
 
 Jack 7'. Ontario, Simcoe er= Heron Ry. Union Co 407 
 
 Jackson 7'. N. C. ^-^ St. L. Ry 364 
 
 " 7'. Metropolitan Ry 370 
 
 James v. The O. &^ (^. Ry. Co 76, 156, 160 
 
 Jame.son 7'. Midland Ry ... 4:8 
 
 Jasmin v.C. P. Ry 263 
 
 M 
 
Index to Cases. 
 
 XXI 
 
 . .180, 184 
 410 
 
 286 
 
 29 
 
 , 259 
 
 413 
 
 , 262 
 
 68 
 
 52 
 
 ), 339, 341 
 102 
 
 87 
 
 ..321, 353 
 
 322 
 
 29 
 
 ), 353. 354 
 
 32 
 
 3«4 
 
 355 
 
 1 90 
 
 >85 
 
 8,421, 422 
 
 3«3 
 
 201 
 
 37 
 
 40 
 
 ...251, 367 
 89 
 
 ...3^6, 348 
 
 383 
 
 221 
 
 23s 
 
 366 
 
 426 
 
 401 
 
 . • ■ 390, 393 
 
 314 
 
 .23, 329. 33' 
 
 5^6 
 
 257 
 
 348 
 
 23 
 
 23 
 
 .•..323. 325 
 
 59 
 
 421 
 
 3'9 
 
 ....323. 326 
 
 348 
 
 22 
 
 407 
 
 , 364 
 
 370 
 
 .76, 156, 160 
 
 ....... 4'8 
 
 263 
 
 O. >S- Q. Ry , . . . 
 Can. Shipping Co. 
 
 NVilcock 
 
 Central Ontario K 
 
 ■. G. T. Ry 
 
 Smith 
 
 Grand Trunk Ry . 
 South East Ry . . . 
 '. Toronto, Grey & 
 
 ;: Lafflin 
 
 r'. 1 indsay 
 
 7\ Montreal Jet. Ry 
 
 7'. Northern Ry 
 
 Joint Stock Discount Co. r. Brown 
 
 Jasmin t' 
 Jeffrey t', 
 "Jenkins r 
 
 Jennings 
 Jerome r' 
 Jessup ''. 
 Jodoin 7' 
 JohnHon 
 
 ..52, 
 .210, 
 
 Bruce Ry. 
 
 .38-^ 
 
 Joly 
 Jones 
 
 Moreau . 
 
 ■'. Eastern Townships Mutual Fire Ins. Co 21 , 
 
 .'. G. T. Rv 336. 366, 
 
 i< 7. The Queen •• 226,227, 
 
 " f. Boyce 
 
 " T'. Laurent 
 
 " 7'. Montreal Cotton Co 
 
 " -'. Municipality of County of Albert no, 
 
 " -'. I'rentice 
 
 " 7\ Stanstead Ry. Co 162, 164, 166, 167, 
 
 Judah 7'. ' 'Uy of Montreal 
 
 " 7'. Atlantic &^ North W es'.evn Ry 203 
 
 Kane 7: Montreal Tel. Co 
 
 Kansas City Ry. Co. z: Morrison 
 
 Karnes 7' Rochester, etc., Ry. Co 
 
 Kellog?'. Chicago iSf N. Ry 
 
 Kelleil?'. G. T. Ry 3«9, 353, 
 
 Kelly r. Ottawa Street Ry ■ 
 
 " Il.d- St. J. Ry 
 
 Kendall 7'. London i-^ S. W. Ry 
 
 K°vr 7'. Atlantic iS- N. W. Ry 236, 
 
 " 7'. Penn. Ry. Co 
 
 Keys 7'. Quebec Eire Ins. Co 
 
 Kingsley 7'. Lake Shore Ry 359> 
 
 Kimberly 7\ Dick • 
 
 Kingston d-^ I'enibroke Ry. Co. 7'. Murphy 77,80, 2 lO; 
 
 Kiiby's Case 
 
 Kiiljy 7'. Lewis 
 
 Kiikland 7\ Dinsnioie 
 
 Knapp 7'. Great Western Ry. Co 187, 238, 241, 
 
 Lake ^uperior Navigation Co. 7'. Morrison 
 
 Lambe 7'. Montreal er= Sorel Ry. Co 
 
 Lambert 7\ Corp. of Three Rivers 82, 
 
 " 7'. Neuchaiel Asphalt Co 
 
 " 7'. Grand Trunk Ry 
 
 Lambkin 7'. South East Ry 365, 371, 
 
 Lancashire d-^ Yorkshire Ry. i'. Evans 187, 
 
 « " " 7'. Mayor iS-^ Corporation of Bury. . .250, 
 
 Land Credit Co. of Ireland 7'. Lord Fernoy 
 
 Landry 7'. North Sliore Ry 
 
 Langdon 7'. Rohertson 289, 
 
 Langevin r. C . P. Ry 
 
 397 
 305 
 53 
 215 
 329 
 286 
 
 78 
 414 
 
 'IS 
 
 44 
 389 
 233 
 385 
 
 25 
 145 
 
 24 
 367 
 228 
 368 
 150 
 
 40 
 III 
 '50 
 '85 
 164 
 215 
 
 71 
 347 
 
 70 
 411 
 
 354 
 268 
 366 
 310 
 269 
 410 
 
 24 
 360 
 227 
 
 214 
 
 88 
 426 
 
 303 
 269 
 
 38 
 126 
 
 247 
 
 71 
 402 
 
 425 
 238 
 253 
 25 
 261 
 
 421 
 
 406 
 
T 
 
 III 
 
 XXII 
 
 The Railway Law of Canada. 
 
 >i 
 
 Lapointe r . C.lM<y 
 
 " r. G.T. Ky 
 
 Lavall6e r . Atlantic &' North Western Ry 
 
 Laviolette f. Thomas 
 
 L.'.vuie ;'. Drapeau 
 
 Lawrence f. Greenwich Fire In?. Co 
 
 " r. Great Noith Western Ry. Co 174, 187, 238, 
 
 Lawson :'. Hutchinson 
 
 Lean' 
 
 Leader ?•. The Nortliern Ry 
 
 Leaf 7'. Canadian Shipping Co 
 
 Le Barron ■:■■ E. B. F. Co 
 
 Le 15!anche ?■. The London iS;^ N- W. Ry 339, 
 
 Lee V. Victoria Ry. Co 131, 
 
 " ?'. Neuchatel Asphalt Co 
 
 " 7\ G. T. Ry 
 
 Leeds Estate Co. r'. Shepherd 
 
 Leeming '■ 
 Lefebvre 
 Legge f 
 Leigh :■ 
 LeSlny :■, 
 Lemoine 
 Leonard : 
 
 ■. Atlaniic d-= North Western Ry 
 
 ■'. City of Quebec 1^4, 
 
 . The LaurentianJij^ 
 
 Smith ^^B 30, 
 
 .C. P. Ry.....l^ 395, 
 
 . City of Montreal 
 
 C. 1'. Ry 
 
 Les]ierance r. Great Western Ry 
 
 Lever t. Land Securities Co 
 
 Levi ;'. Reed 
 
 Lewis 7\ Brady 
 
 " 7'. London, Chat. iSr' Dover Ry 
 
 " 7. G. W. R 238, 
 
 Lincoln Paper Mills Co. r', St. Catharines e?» Niagara Ry 
 
 Livingston ■:■. G. T. Ry 
 
 London, Brighton iS-^ S. C. Ry. v. Truman. 84, 85, 144, 165, 166, 168, 
 
 '• Celluloid Co. ;■<.■ 
 
 " Tilbury d-- South End Ry. Co. v. Gower's Walk Schools 
 
 Louden r'. Taxing District 
 
 Lord G.Tdid r; The Lond. i?-^ North Weste rn Ry 
 
 Lord Provost of Glasgow t. Varie 
 
 Lovell T. London, Chat . &= Dover Ry. Co 
 
 Louisville d-^ Nashville Ry. t. Fleming 
 
 " etc , Ry. Co. 7'. Spain 
 
 HofTnung 
 
 Fishmongers Co 178, 
 
 Nurdin 366, 
 
 . Peck 
 
 MacBeth v. Smart 
 
 MacDonald ;■. Presant ... 
 
 ' ' 7'. Montreal >5r» New York Ry. Co 
 
 " 7'. 'I he Mayor, etc., of St. John 288, 
 
 MacFarlane ?■. Corp. of St. C6saire 
 
 Macfarlane 7' Gilmour 
 
 MacLean 7'. The Niagara Falls Park 
 
 MacMuUen 7'. Cayley 
 
 MacMurrick 7'. Bond Head Harbor Co 21,4.2, 
 
 MacRas v. C. P. Ry 
 
 MacWillie7'. North Shore Ry 
 
 Lyons 7', 
 Lyon 7'. 
 Lynch 7 
 Lyman 
 
 .31 
 307 
 204 
 
 29 
 
 390 
 126 
 240 
 2or 
 212 
 
 3'9 
 291 
 326 
 341 
 13s 
 7« 
 346 
 
 25 
 
 188 
 248 
 224 
 314 
 396 
 204 
 416 
 187 
 71 
 
 42s 
 no 
 
 334 
 239 
 217 
 
 287 
 170 
 
 87 
 169 
 
 423 
 178 
 
 177 
 35' 
 286 
 
 403 
 316 
 
 183 
 369 
 184 
 
 61 
 200 
 
 47 
 334 
 112 
 
 389 
 205 
 201 
 
 47 
 272 
 166 
 
^ 
 
 '^ 
 
 Index to Cases. 
 
 XXIII 
 
 .3' 
 
 307 
 
 204 
 
 29 
 
 390 
 
 126 
 
 , 238, 240 
 
 201 
 
 212 
 
 J«9 
 
 291 
 
 326 
 
 .•339. 341 
 
 • 131. 13s 
 
 71 
 
 346 
 
 25 
 
 188 
 
 ..164, 248 
 
 224 
 
 ...30, 3H 
 
 ••39S. 396 
 
 ...... 204 
 
 416 
 
 187 
 
 7' 
 
 425 
 
 no 
 
 334 
 
 .■238, 239 
 
 217 
 
 287 
 
 6, 168, 170 
 
 87 
 
 Is 169 
 
 423 
 
 178 
 
 177 
 
 351 
 
 286 
 
 403 
 
 316 
 
 ...178. 183 
 
 . • • 366, 369 
 
 184 
 
 61 
 
 , 200 
 
 47 
 
 ...288, 334 
 112 
 
 389 
 
 205 
 
 201 
 
 ,21,42, 47 
 
 272 
 
 166 
 
 McAithurr. Northein &" Pacific Jet, Ry. &* Heiulri.. 81, 
 
 Mc('.ififrey 7 . C. P. Ry 344-348, 
 
 McCallum r . G. T. Ry 
 
 McCarron :■ McGreevy 226, 227, 
 
 McCarthy r. Dublin, etc., Ry 
 
 McCawley 7 . Kurness Ry. Co 
 
 McCracken f. Maclntyre 
 
 McCrossen r-. G. T. Ry 
 
 McUougall T. McGreevy 
 
 McKaddtn r. Missouri P. Ry 
 
 McFie 7. C. P. Ry 
 
 McGibbon v. Northern Ry 
 
 McGill7. G. T. Ry 
 
 " 7'. Grand Trunk Ry 
 
 McGilliviay f. Great Western Ry 187, 238, 239,243, 
 
 McGinney 7. C. P. Ry 333> 
 
 McGreevy 7' . Boomer 
 
 McGregor 7\ Currie • 
 
 Mcintosh 7'. Commissioners of Court House at Halifax, 
 
 «' 7'. fJrand Trunk Ry 
 
 " 7'. Great Western Ry 
 
 McKay i\ Lockhart 
 
 McKenna 7'. N. Y. Cent, i^-^ H . R. Ry 
 
 McKenzie 7. C. P. Ry 
 
 McKenz-ie r. Kittiidge 
 
 McLaien 7'. Can. Atl. Ry 
 
 McLauchlin 7'. G. T. Ry 260, 394, 
 
 McLellan 7'. Grand Trunk Ry 
 
 McManus 7'. Lancashire d~= Yorkshire Ry. 
 
 
 McMichael 7'. G. T. Ry . 
 
 262, 
 
 308, 
 
 .260, 
 
 Grand Trunk Ry 307, 
 
 '. Manitoba d-' N. W . Ry 
 
 ', Michigan South &^ North Indiana Ry 
 
 7 . New York Central Ry 
 
 Great Western Ry 344, 346, 
 
 Cox 
 
 36, 
 
 McMillan 
 " 7 
 
 McPadden 
 Macrow 7'. 
 Madden 7'. 
 Magog Textile er= Print Co. z'. Price 
 
 " " 7'. Dobell 
 
 Maguire 7'. City of Montreal 
 
 Malhiot V. Burroughs 
 
 Manchester Ry. 7'. Brown 
 
 Mangan 7'. Atterton 
 
 Manitoba Railway Crossings Case 
 
 Marcheterre v. O. i2r= Q. Ry 
 
 Margette r. Williams 
 
 Markham v. Great Western Ry 
 
 Marmora Foundry Co. 7'. Boswell 
 
 " 7'. Jackson 
 
 " V. Murray ; 
 
 Marshall 7'. Grand Trunk Ry 
 
 Mason v. South Norfolk Ry 
 
 •' V, Grand Trunk Ry , 307, 
 
 Masterton 7'. Mayor of Brooklyn 
 
 Massawippi Valley Ry. Co. v. Walker 
 
 Massey Manufacturing Co. , The m re 
 
 Mathews 7. Great Northern Ry 
 
 26S 
 
 353 
 268 
 228 
 
 28s 
 342 
 56 
 320 
 '!23 
 
 303 
 402 
 
 411 
 
 314 
 421 
 269 
 
 334 
 
 226 
 
 62 
 
 223 
 
 399 
 227 
 
 3'9 
 401 
 
 398 
 51 
 413 
 395 
 399 
 3'o 
 263 
 
 355 
 402 
 322 
 
 323 
 
 347 
 
 93 
 
 40 
 
 36 
 372 
 210 
 300 
 
 369 
 
 265 
 
 267 
 
 423 
 
 405 
 
 66 
 
 66 
 
 66 
 
 267 
 
 216 
 
 3'9 
 
 419 
 
 40 
 
 14 
 
 89 
 
i! 
 
 XXIV 
 
 The Railway Law of Canada. 
 
 i > 
 
 Mathieu v, Q. M.&' O.Ry 
 
 Mallhews :• Hamilton Powder Co 
 
 Mj>y 7'. Ont. ur^ Que. Ky 
 
 Mayer v. Grand 'Irunk Ry 30.;, 
 
 Mayor of Montreal r'. Drummond 163, 
 
 Mead ?'. Township of Etobicoke 
 
 Mechanics Society in /r 
 
 •' Whale Kishing Co. v. Kirby 
 
 Meek f. Penn. Ky. Co 
 
 Meier v. Penn. Ky. Co 
 
 Merchants Despatch Co. t, Halely 301, 
 
 Mersey Dock Trustees :■. Gibb 
 
 Mersey Docks t. Lucas 
 
 Merrill :■. Grinnell 
 
 Metropolitan Ky. Co. ?■. Jackson 364, 
 
 Metropolitan Board of Works 7'. McCartliy 179, 
 
 " District Ky. Co. ?■. Sharpe 
 
 Michigan Central Ky . v. Myrick 
 
 Midland Ry. Co. r'. Young 140, 
 
 " " r.Gribble 
 
 " ' ' 7'. Rev. Sir F. L. Robinson 
 
 Miller r\ Great Western Ry. Co 
 
 " ''. Grand Trunk Ry , 242, 384, 
 
 " 7\ Great Repub. Ins. Co 
 
 ' ' 7-. Hogg 
 
 «• 7\ Rutland df Wash. Ry. Co 
 
 Milligan i'. Grand Trunk Ky 
 
 Mills ; 
 
 150, 
 
 Milot t 
 Miner 
 
 Moffatt 
 Moffette 
 Moggy 
 Moisaii 
 
 Atlantic &» N. W. Ky. 
 Northern Ry. of Buenos Ayres 
 
 Stewart 
 
 Perrault 
 
 . Giimour 182, 
 
 Minnesota Co, r'. St. Paul Co 
 
 " Central Ry. 7\ McNamara 
 
 Mismer r. ^1ich. Cent. Ry 
 
 Mississippi Ky . Co. r. Kennedy 
 
 Mitchell V. Darley Main Colliery Co 
 
 '. Farquhar 
 
 ■. Grand Trunk Ry 368,^69,371,380, 
 
 C.P. Ry ." 385. 
 
 Great Western R y 
 
 Molson's Bank 7\ .Stoddait 
 
 Mongenais 7\ .\llan 
 
 Mo'itreal 6^ Ottawa Ky. Co. :■. Bertrand 
 
 " •' " r, Castonguay 
 
 Montreal City J-^ District Savings Bank :■. Geddes 
 
 '• City Pass. Ky . I'o. 7\ Dufresne 369, 
 
 Montreal iH-^ Sorel Ry. > o. :■. Vincent 
 
 O 6^0. Ry. Co. 7\ St. De-iis 
 
 V. e- O. Ky . i . St. Denis 199, 
 
 Portland &* Boston Ky, 7\ Banque d'Hochelaga 96, 
 
 Central Oiitario Ry 
 
 Kirkland 
 
 McLaren 44, 
 
 The Poit Uruce Harbor Co 
 
 The Great South &^ Western Ry. Co 
 
 « 
 
 (I 
 
 Moore 
 
 186 
 
 389 
 26S 
 
 3'9 
 181 
 249 
 12S 
 223 
 366 
 323 
 309 
 365 
 70 
 348 
 
 36s 
 
 180 
 
 21 
 
 304 
 142 
 
 258 
 177 
 193 
 385 
 44 
 'SO 
 120 
 
 313 
 
 •97 
 
 70 
 
 67 
 16 
 
 '83 
 
 108 
 
 '55 
 396 
 348 
 235 
 I 
 382 
 3S6 
 
 243 
 59 
 3fo 
 204 
 204 
 
 7' 
 
 377 
 210 
 
 '95 
 200 
 114 
 190 
 
 52 
 
 45 
 
 >S 
 
 179 
 
 I 
 
 3 
 
 -3 
 
Index to Cases. 
 
 XXV 
 
 
 186 
 
 , ^ 
 
 389 
 
 , , 
 
 268 
 
 ^'^, 
 
 3«9 
 
 63. 
 
 181 
 
 • • • 
 
 249 
 
 > • • 
 
 128 
 
 • • • 
 
 223 
 
 • • • 
 
 366 
 
 
 323 
 
 0";, 
 
 309 
 
 
 365 
 
 t • * 
 
 70 
 
 m 1 • 
 
 34S 
 
 64, 
 
 365 
 
 79. 
 
 180 
 
 • ■ • 
 
 21 
 
 
 304 
 
 40, 
 
 142 
 
 
 25» 
 
 
 177 
 
 
 193 
 
 84, 
 
 3«S 
 
 • • • 
 
 44 
 
 ... 
 
 150 
 
 . . . 
 
 120 
 
 • . ■ 
 
 313 
 
 50, 
 
 197 
 
 . • • 
 
 70 
 
 • • • 
 
 b7 
 
 
 16 
 
 82, 
 
 183 
 
 
 108 
 
 . . . 
 
 iSS 
 
 . . . 
 
 396 
 
 > . • 
 
 348 
 
 
 235 
 
 . . • 
 
 )■ 
 
 ^8o, 
 
 ^,82 
 
 $«5. 
 
 386 
 
 • • • 
 
 243 
 
 ■ • • 
 
 59 
 
 
 310 
 
 ... 
 
 204 
 
 
 204 
 
 . . . 
 
 7' 
 
 J69> 
 
 377 
 
 * • • 
 
 210 
 
 31- 
 
 .239, 242, 
 ..96, 102, 
 
 190 
 
 52 
 
 45 
 
 »5 
 
 179 
 
 204, 
 
 Bealty . 
 
 ,308, 
 
 37 
 
 344, 
 
 •53. 
 39. 
 
 Morin f. Atlantic vSr' N W. Ry. Co , 
 
 " 7'. Tlie Queen 
 
 Morrison v. G. T. Ry 
 
 " V. Rich. &' Ont. Nav. Co 
 
 " z;. rhillips ^Sr" Co 
 
 '< t;. City of Montreal 
 
 '< V. Mayor of Montreal 
 
 " 7\ Davis ... 
 
 Moulson V. Eyre 
 
 Moynaiigh r'. Anijus 
 
 Mudford's Claim 
 
 Muir J'. Caledonia Ry . Co 
 
 Municipal Corp. of Vestra and Sunnidale 
 
 Murdock r. Woodson 
 
 Murphy z\ La Cie. dei Remorqueurs ilu St. Laurent 
 
 " V. City of Ottawa 
 
 Murray v. Vanderbilt 
 
 " z\ Grand Trunk Ry 
 
 « I/. S. E, Ry 
 
 Muschamp r'. Lancashire c,-= Preston Ry 
 
 Musben f. Canada Atlantic Rv ■ 
 
 Myatt T'. Si. Helen ^Sr- R. G. Ry 
 
 Mytlon V. Midland Ry 
 
 Nashville &^ Decatur Ry. f. Jones 
 
 Nasniith i'. Dickey 
 
 " z'. Manning 35? 3^1 
 
 Natchez, etc., Ky. Co. z\ McNeil 
 
 National Funds Assurance Co. ut re 
 
 " Insurance Co. v. Chevrier 
 
 " " f. Hatton 
 
 ' ' Telephone Co. z\ liaker 
 
 Nehan v. St. Catharines Ry. Co 
 
 Nelson v. Hudson River Ry 
 
 New Urunswick Ry. Co. -■. Vanwart 
 
 " " -■. Armstrong 
 
 «' " J'. Robins 
 
 «« " t'. Robinson .....411, 
 
 New Chili Gold Mining Co 
 
 New Clydock Sheet &> Bar Iron Co. in rd 
 
 Newhaven Loc. Board v. Newhaven School Board 
 
 New Orleans Ry. Co. <■. Ealer 
 
 New York Elevated Ry. Co. in re 
 
 • ' Central Sleeping Co. z>. Donovan 
 
 Nichol z'. Canada Southern Ry 32, 187, 23S, 239, 
 
 Nichol's Case 
 
 " r'. Great Western Ry 
 
 Nitro Phosphate Co. f. L. &= St. K. Docks Co 365, 
 
 Nixon z'. Brownlow 
 
 " z'. Grand Trunk Ry 
 
 Nolton «'. Railroad Co 
 
 Norris v. Canada Atlantic Ry 206^ 
 
 North Shore Ry. Co. z: Beaudet 149, 192, 
 
 " " z'. Hdpital du Sacr6-Cceur 
 
 <*, " T'. Les Ursulines ue Quebec 153, 
 
 *• " t. Pion 162,163,166,179,182, 
 
 »» " r. McWillie 
 
 399 
 244 
 126 
 352 
 303 
 204 
 181 
 411 
 149 
 184 
 
 87 
 166 
 
 43 
 120 
 
 '7 
 236 
 126 
 292 
 328 
 
 304 
 2o5 
 
 103 
 
 348 
 
 327 
 62 
 
 56 
 326 
 
 25 
 40 
 41 
 
 85 
 191 
 310 
 
 367 
 402 
 402 
 412 
 88 
 
 105 
 
 20 
 326 
 
 74 
 288 
 241 
 
 88 
 
 385 
 366 
 
 59 
 406 
 
 329 
 
 2C7 
 
 193 
 193 
 
 192 
 
 184 
 416 
 
XXVI 
 
 Thk Railway I,a\v ok Canada. 
 
 Grant . 
 
 V. Beatty 
 
 - Maine^Ry 
 
 Halifax liaiikini; Co, 
 
 , 196, 199, 
 
 121, 
 
 Northern I'ac. Ry. Co. 
 
 Norton t'. Easttin Ry 
 
 North Wert Transporttition Co. 
 
 Norvall r, C. S. Ry 
 
 Norway F'lains Co. :•. lioston e-= 
 
 Nott 7: Nott 
 
 Nova Scotia Central Ry. Co. 7\ 
 
 O'lJrien f. Credit Valley Ry 
 
 O'Connell 7\ Krigon 
 
 O'Neill T'. Great Western Ry 
 
 O'Reagan 7 . Ciinard .S. S. Co 
 
 O'Rourke ?■. Great Western Ry 29, 
 
 O'Sullivan ;■. Vicloria Ry 
 
 Oakbank Oil Co. :■. Crum 
 
 Cakes ?■. Turquand 57, 
 
 Oaks I'. City of Halifax 
 
 Oldwrij^ht r'. (irand Trunk Ry 
 
 Oliver ?•. Great Wes-tern Ry 
 
 Ontario Maiine Insurance Co. '■. Ireland 
 
 " Car Co. :■. Farwell 
 
 " " r. Quebec Central Ry 
 
 Ontario J^' Quebec Ry. Co. t'. Cuids, etc , de Ste. Anne, etc i.jg, 
 
 " " T'. Latour 
 
 " " :■. Philbrick 
 
 •• " 7'. Taylor 
 
 Ontaiio u^' S.ault St. Marie Ry. Co. r'. C. P. Ry 9, 74, 
 
 Ontario Express c^ T>ans. Co. 7'. Grand Trunk Ry 
 
 " Co-operative Stone Cutters Association 7'. Clarke 
 
 Ooreguni Mining Co. 7'. Roper 
 
 Osier 7'. Toronto, Grey d-^ bruce Ry 
 
 Ostell 7'. Joseph 
 
 Ouimet 7'. Can. Express Co 
 
 " 7'. Henshaw 
 
 Overend, Gurney &^ Co. 7\ Gibb 
 
 Owen Sound S.S Co, r. C. P. Ry 
 
 Pacific Ry. Co. 7'. Thomas 
 
 Packard 7'. C. P. Ry 345, 
 
 Page 7'. Austin •4,53. 
 
 Paig-i 7', Smith 
 
 Paine 7'. Woods 
 
 Paint 7'. The Queen 15S, 175, 
 
 Palin 7'. Reed 
 
 Paradis7'. The Queen 212, 160, i66,"i77, 
 
 Parana, The 
 
 Parish of St. Liboire 7'. Grand Trunk Ry 
 
 Parish of St. C^saire 7'. MacFarlane 
 
 Parker 7'. Lewis , , 
 
 " 7'. McKenna 
 
 " 7'. Montreal Street Ry 
 
 " 7. S. E. Ry 303, 
 
 Parks 7\ City of Boston 
 
 Parsons 7'. Jackson 
 
 Partridge 7'. Great Western Ry 
 
 Patscheider ?■. Great Western Ry 
 
 Patterson 7'. Davidson 
 
 " 7. Great Western Ry 
 
 3'4 
 
 3^> 
 21 
 
 2tO 
 
 32' 
 201 
 122 
 
 3.^ 
 •5'J 
 3'9 
 303 
 303 
 389 
 69 
 5S' 
 '49 
 
 33.5 
 29 
 66 
 
 07 
 102 
 19S 
 '52 
 209 
 160 
 
 77 
 2S1 
 224 
 
 6S 
 114 
 
 •50 
 312 
 
 353 
 
 25 
 
 279 
 
 27 
 362 
 
 58 
 128 
 
 155 
 '77 
 355 
 184 
 419 
 
 245 
 92 
 25 
 24 
 
 252 
 
 344 
 1 86 
 
 244 
 
 353 
 292 
 269 
 
 
 vS 
 
^z 
 
 Index to Cases. 
 
 XXVII 
 
 . • ■ 
 
 3 '4 
 
 
 3^3 
 
 
 21 
 
 99. 
 
 2CO 
 
 
 321 
 
 
 201 
 
 21, 
 
 122 
 
 
 33 
 
 
 150 
 
 
 3'9 
 
 
 303 
 
 29. 
 
 303 
 
 
 3«9 
 
 . . . 
 
 69 
 
 •57t 
 
 5S' 
 
 . . . 
 
 149 
 
 . . . . 
 
 335 
 
 < . . 
 
 29 
 
 . . . 
 
 66 
 
 
 07 
 
 • > ■ • 
 
 102 
 
 •49. 
 
 1 98 
 
 
 '.52 
 
 . . • • 
 
 209 
 
 . . . • 
 
 160 
 
 74, 
 
 77 
 
 • • • • 
 
 281 
 
 ■ • • ■ 
 
 224 
 
 . •• . 
 
 68 
 
 .... 
 
 114 
 
 . . . > 
 
 150 
 
 . . . . 
 
 312 
 
 
 353 
 
 • ' • ' 
 
 . . . . 
 
 25 
 
 . . . . 
 
 279 
 
 . • > • 
 
 27 
 
 •34.S. 
 
 362 
 
 . 53. 
 
 5S 
 
 
 128 
 
 . • • > 
 
 155 
 
 «75. 
 
 '77 
 
 .... 
 
 355 
 
 ,'177, 
 
 184 
 
 
 419 
 
 
 245 
 
 
 92 
 
 
 25 
 
 
 24 
 
 
 252 
 
 • 303 
 
 344 
 
 
 186 
 
 
 '^3 
 
 
 244 
 
 
 353 
 
 • • • > 
 
 292 
 
 
 269 
 
 Patterson r: Buffalo C^- Lake Huron Ky, 
 
 I'eart r. Cirand Trunk Ky 
 
 Peck '■. Harris 
 
 " 7'. North StatTordshire Ry 
 
 reliant rv C. P. Ky 
 
 Pellati's Case.... 
 
 Pembrooke t'. Cin. Cent. Ky 
 
 I'endlebury r. Greenlagh . . . 
 Pennsylvania Ry. Co. 
 
 .383. 
 
 .298, 
 •355- 
 
 
 Ccnnell. 
 '. Kerr . . . 
 '. liainett 
 
 Pe 
 
 • •43. 
 •353, 
 
 ^283, 
 
 nny Ai' 
 
 Penny 1' v /ii I'tc 
 
 Penton ■'. Giand Trunk Ry 
 
 People r. N. Y. Central, etc., Ry 
 
 Periam -'. Dompierre 
 
 Perrault r. C. P. Ky 
 
 " r. Milot \ 
 
 Peterborough Ry. Co. r . Nashua vS-^ L. Ry. Co 
 
 Peters t'. Que. Harbour Commissioners 226. 227, 
 
 Peio V. Welland Canal Co ' 25, 1 2 ■, 
 
 Phelps r. Lyle 
 
 <« T . The St. C. cl-^ N. Ry. Co 
 
 Phil . ^:-" Sunbury Ry. Co. r. Lewis 
 
 Phillips r. t . P. Ry 
 
 " 7'. London &^ S. W. Ry 
 
 Philadelphia J- W. 13. Ry. Co. "'. Stinger 
 
 Phips r. London >:;-■ N. W. Ry ■• 
 
 Phelps r. London J- N. W. Ry 344- 346, 
 
 T. Great Eai^t. Ry ' 
 
 Philbrick r. Ont. C-" Que. Ry 
 
 I'ickard r. Sn 
 
 Pigeon '■. City of Montreal • 
 
 Pirn r . Municipal Council of County of Ontario 
 
 Pion r. North Shore Ry. Co 162, 163, 167, 178, 179, 182, 184, 
 
 Pittsburg ^^ Lake lirie Ry. Co. r. Robinson 
 
 « Cincinnati 0-= St. L. Ry. Co. r . Staley 
 
 " li-^ Southern Ry. r. Taylor 
 
 '• etc., Ky. Co. r. Thonips m 
 
 Plant r'. Grand Trunk Ry 
 
 Pollock r. Eastern Ky. Co 
 
 Pontbriand r . Granil Trunk Ry 
 
 Pontile &- Pacific Jet. Ry. r. Hrady 
 
 Pontus dil Clement ■:■. Rousseau 
 
 Poole I'. Middleton 
 
 Poll Dover v2~= Lake Huron Ry. Co. '■. Grey 40, 41. 64, 
 
 Porter '■. Hildebrand 
 
 Porter t. New York Central Ry . Co 
 
 Port Glasgow iS^ Newark Sailcloth Co. r. Caledonian Ry. Co.... 407, 
 
 Potts r. Warwick, etc., Canal Navigation to 
 
 Poudrette r. O. c-^ Q. Ry 
 
 Pratt T'. Grand Trunk Ry 
 
 Prehn •'. Royal Bank of Liverpool 
 
 Prescott r'. Eastern Ry. Co 
 
 Priestly r. Farrell 
 
 Provencher r. C. P. Ry 357, 
 
 217 
 
 384 
 1S4 
 
 303 
 
 356 
 
 37 
 
 251 
 
 32 
 2S8 
 411 
 
 383 
 184 
 184 
 
 355 
 386 
 
 372 
 284 
 
 14 
 
 68 
 228 
 129 
 
 20 
 
 lOI 
 
 III 
 
 406 
 425 
 383 
 277 
 3<8 
 402 
 212 
 
 235 
 267 
 
 220 
 
 216 
 
 '55 
 
 364 
 
 364 
 
 323 
 
 3«9 
 
 383 
 
 312 
 
 405 
 
 377 
 
 43 
 
 65 
 
 347 
 
 29 
 
 412 
 126 
 
 243 
 
 306 
 
 423 
 383 
 389 
 421 
 
P" 
 
 xxvni 
 
 TiiK Railway Law of Canada. 
 
 <i 
 (I 
 
 
 Provident Life As^^r. J-' InvostniciU Co. r . Wilson 
 
 Provincial Insuraice Co. 7 , Worts 
 
 Pryce t. Monmouihshire Ky 
 
 Pullman Car Co. ;■. Sise 357, 
 
 " " 7'. Ganlner 
 
 " " r. Lowe 357, 
 
 Pulbrook 7\ Richmond Consnl . Mining Co 
 
 Py m !■'. Great Northern Ky 
 
 Quebec Cent. Ky. r . Lortie 325, 375, 
 
 Quebec I'lre Assurance Co. ''. St. Louis 
 
 Quebec iS-= Richmond Ky. ( o. f. iJawsnn 58, 
 
 Quebec Warehouse Co. r-. Coiporation Town of Levis 
 
 Queen — Sec Kegina. 
 
 Rae V. (irand Trunk Rv 
 
 Kadley r. L. d- N. W.' Ky 
 
 Railroad Co. r'. Lockwood . , 
 
 " ■:■. Jones 
 
 Railway Publishing Co. re 
 
 " Sleepers Supply Association in >;• 
 
 " Company ?■. Sprague 
 
 " Co. 7. Hale 
 
 " " 7. Reynolds 
 
 ■'. Henry 
 
 ■'. Kennedy 
 
 " 7'. Ixhman 
 
 Commissioners of Manitoba J-" Kcd Kiver Valley Ry. Co. /;/ 
 
 re 
 
 Ralph V. Great Western Ry 
 
 Ramsden v, Boston &" Albany Ry. Co 
 
 Ramsgate, etc. , Co. v . Montefioie 
 
 Ranee's Case 
 
 Ranger 7'. Great Western Ky 226, 
 
 Raphael 7'. 'I hanies Valley Co 
 
 Rascony 7'. Union Navigation Co 
 
 " Woollen Co. 7'. Desniaiais 39, 
 
 Rastick 7 . Great Western Ky • 
 
 Ravary i' . Ontario c.-^ Quebec Ry 
 
 Ray V. Ulair 
 
 Reburn 7'. Ontario i!?^ (Quebec Ry 
 
 Rector li^ Churchwarden of St. George's Paii>h '•■. King 
 
 Redhead ?•. Midland Ry 323, 
 
 Redfieldr'. Corporation of Wickham 102, 103, 
 
 Redmayne 7'. Great Western Ry 
 
 Reedie 7'. Lon. &■ N. W. Ky 235, 
 
 Kegina v. Phaneuf 
 
 " 7'. Rrownell 
 
 " 7'. McLeod 
 
 " 7'. McGreevy 
 
 " 7'. Great Western Ky 
 
 " 7'. Grand Trunk Ky 246, 
 
 " f. Vezina 256, 
 
 " 7', Barry 
 
 " 7'. Cambrian Ry 
 
 <' 7'. Carrier 15S, 160, 
 
 " 7', Chester .'^ 85, 
 
 " i<. Coaks 
 
 ^5 
 
 2S2 
 
 360 
 
 3.S7 
 560 
 
 ■9 
 
 323 
 
 .^77 
 414 
 
 63 
 92 
 
 397 
 36S 
 
 343 
 
 33' 
 
 88 
 
 65 
 
 i'3 
 
 421 
 421 
 421 
 421 
 422 
 
 265 
 
 288 
 
 29 
 
 37 
 71 
 
 227 
 
 233 
 
 36 
 
 M 
 
 38s 
 
 75 
 54 
 
 212 
 2 to 
 326 
 122 
 418 
 366 
 287 
 386 
 
 329 
 228 
 
 255 
 251 
 257 
 179 
 1 85 
 176 
 166 
 18 
 
Index to Cases. 
 
 XXIX 
 
 f'5 
 
 ^5 
 
 2S2 
 
 360 
 
 3.S7 
 560 
 
 ' '9 
 
 323 
 
 377 
 414 
 
 63 
 92 
 
 397 
 36S 
 
 343 
 
 331 
 
 88 
 
 65 
 
 "3 
 
 421 
 421 
 421 
 421 
 422 
 
 265 
 
 288 
 
 29 
 
 37 
 71 
 
 227 
 
 233 
 36 
 (^i 
 
 38s 
 75 
 54 
 
 212 
 
 2 to 
 326 
 122 
 418 
 366 
 287 
 386 
 
 329 
 228 
 
 255 
 251 
 257 
 
 '79 
 185 
 
 , 176 
 
 166 
 
 18 
 
 (< 
 
 7' 
 
 « 
 
 V 
 
 l( 
 
 7' 
 
 <i 
 
 J. 
 
 1 1 
 
 7 
 
 (< 
 
 11 
 
 l< 
 
 V 
 
 li 
 
 , 
 
 KeiiinaT'. Ktistern Counties Ky. to 
 
 " 7. G.T.Ky 
 
 (iasharth • • • 
 
 Great Noith Western Ry 
 
 Hungeiforil Market 
 
 Lanibourne Valley Ky tS • 
 
 London Dock Co 
 
 Malcolm •. 
 
 McCiirdy • • 
 
 Paradis '^4' 
 
 '< 7\ I'oulter 
 
 " V. St. Luke's 
 
 " -', Tewkesbury 
 
 " 7'. Thames &^ Ibii Naviy.uiun Co 
 
 ' 7' . Train 
 
 " 7' . Vaughan 
 
 Reist 7'. Grand Tiunk Ky 
 
 Renaud v. City of Quebec 2.^ 7, 
 
 •' 7'. CJreat Wes'ern Ky 
 
 Rennie 7\ Northern Ky • ■ 
 
 Rex 7' . Pease '^5 > 
 
 Rhodes 7< . Starnes 
 
 Richards 7'. I.ond., Urighton e~ S. C. Ky 
 
 Richardson 7'. Can Pac. Ky 319, 
 
 " S])ence d-" Co. 7'. Kountree 
 
 Ricket 7'. Metropolitan Ry 82, 
 
 Rigby 7. Ilewilt 
 
 Richards 7'. London, Brig'.ilon iS-- S. C. Ky 350, 
 
 Richelieu d-^ Ont. Nav. Co. 7'. .^t. Jean 388. 390. 392. 
 
 Rimmer 7'. London d-" N. VV. Ky 
 
 Kishlon Local Board 7'. Lan. York. Ry 
 
 Roach 7'. Can. Pac. Ry 
 
 Roberts 7'. Great Western Ky 
 
 Roberge 7'. Noith Shore R) 
 
 Robertson 7'. Grand Trunk Ky 
 
 "■ 7'. ilalifa.x Coal Co 
 
 Robichaud 7'. Can. Pac. Ry 
 
 Robinson 7' . Chartered Bank 
 
 •' 7. C. P. Ry 
 
 " 7. N. B. Ry 
 
 Robson V, Hooker 
 
 " 7'.N.E.Ry 
 
 Rocheleau ?'. .St. Lawrence d-^ Atl. Ry 262, 
 
 Rock 7'. L^enis 289, 3O4, 
 
 Rogers 7'. Great Western Ry 
 
 Rogers 7'. Hersey 
 
 "..aurin sO, 
 
 320, 
 •344, 
 
 Roge 
 
 Root 7'. Sleeping Car Co 
 
 Rose 71 N. E. Ry 
 
 Rosevi or China Clay Co. Kx parte . ... 
 
 Ross 7', Can. Agricultural Insurance Co 39, 
 
 Converse, 
 Dusablon . 
 
 " V. Fiset. 
 " 7'. Langlc 
 
 16, 
 
 43. 
 •39c 
 
 Worthington 43, 
 
 179 
 
 Si 
 
 22 
 1S4 
 1S4 
 
 47 
 1 84 
 '79 
 
 '77 
 215 
 
 '79 
 
 47 
 
 I 
 
 184 
 
 259 
 269 
 
 406 
 
 3r>7 
 
 I' 6 
 
 26 
 
 350 
 
 3 -'2 
 
 3'" 
 
 1 84 
 
 411 
 
 353 
 393 
 411 
 
 277 
 3" 7 
 268 
 232 
 298 
 
 3«3 
 306 
 
 '43 
 
 365 
 416 
 
 344 
 334 
 403 
 
 ;vS3 
 
 307 
 3" 
 54 
 358 
 334 
 3 '6 
 
 54 
 64 
 
 56 
 
 56 
 
 392 
 
TT 
 
 XXX 
 
 TuF. Railway Law ok Canada. 
 
 Kuulx r. Grnn 1 iriink Ky 
 
 Kowe r'. McKwan 
 
 Roy r'. Champlain v!" St. Lawrence Ky 
 
 '• :■. g. M. v:;- C. Ry . 
 
 " 7-. Grand 'rnink Ky 368. 369. 
 
 Royal Insiimtion for tlie Advancement of Ix-arning 7\ DesrividiL-s .... 
 
 RiickT', Williams 
 
 Riishforlh r. I la.lfield 
 
 Rutlierfonl t". Gian<l Trunk Ry 
 
 Ruthven r\ Ruthvcn 
 
 Kyan r. M. J~ C. Ry 
 
 " T. Canada Soulhein Ry 
 
 •• 7'. N. V. ( entral Ry 
 
 Kyder t. Woombwell 335, 
 
 Kyland :'. Delisk- 60, 61, 62, 
 
 '' ' 7\ Fleiclicr 
 
 " 7- 0.,lell 54, 
 
 " 7\ Routh 
 
 Salter f. Utica c-^ 1>. Ry 
 
 Samson r'. Tlie (^)ueen 
 
 Sanche "■. Canadian I'acilic Ry >i4, 
 
 Sandys r.v /<iirU 
 
 Santa liaibara Mininf; Co rr /'.ir/c 
 
 Sarault ;'. Viau 
 
 Scarlett r. Great Western Ry 
 
 Scottish Anier. Invest. Co. 7'. I'rettie 
 
 Scndcal :. I latton 
 
 Senesic 7\ Central Vt. Ry 
 
 Seymour r\ Sinconnes 2y6, 
 
 Scott 7\ Railway Commissioners 
 
 •• r . L. C-^ St. R. Docks Co 
 
 " r. Midland Ry 
 
 " 7\ Grand Trunk Ry 
 
 Seminary of .Ste. Tiier6se r. C. 1'. Ry 
 
 Senior :■. Metropolitan Ry. Co 
 
 Seiandat 7-. Saisse 
 
 Shakleford's Cast; 
 
 Sharp 7\ San Paulo Ry ... 
 
 Shattuck 7-. Stoneham Hranch Ry 
 
 Shaver r. G. W, Ry 
 
 Shaw 7'. C. P. Ry 
 
 " 7'. Ry. Co 
 
 •■ 7'. JSoslon i2~= W. Ry 
 
 Sheffield v^-' Manchester Ry. Co. ?■. Woodcock 
 
 Sheernian 7'. T. G. J~= 13 31, 32c), 
 
 Shelfer 7'. City of London lilectfic Li^^ht Co 1 68, 
 
 Shclton 7'. Lake Shore iS-^ Micii. South Ry 
 
 Shephard 7'. liristol J-" Exeter Ry 
 
 Sherman 7'. Toronto, Grey C-^ Hruce Ry 
 
 Shoebrink 7'. Can. Atl. Ry 
 
 Shropshire Union Rys. c-' Canal Co. 7'. The Queen 
 
 Siner e~^ Wife 7'. Great Western Ry 334, 
 
 Singleton t. E. C . Ry 
 
 Sise 7'. Pullman Car Co 
 
 Simoneau 7'. The Queen 239, 242, 
 
 i^in'ipson 7' . MoUon's Bank 
 
 3')9 
 292 
 
 148 
 
 74 
 
 374 
 
 2[ 
 
 32« 
 
 292 
 
 ■29;. 
 
 28 
 
 393 
 410 
 
 370 
 63 
 «S 
 55 
 16 
 
 38* 
 176 
 iHo 
 88 
 49 
 374 
 32" 
 213 
 423 
 4'7 
 3' 2 
 '75 
 370 
 
 273 
 210 
 190 
 161 
 
 32 
 
 40 
 
 227 
 
 •55 
 
 361 
 422 
 
 383 
 22 
 
 330 
 170 
 286 
 320 
 
 31 
 
 382 
 
 47 
 368 
 
 369 
 
 357 
 244 
 
 49 
 
^ 
 
 Inuex to Casks. 
 
 XXXI 
 
 
 3<>9 
 
 
 292 
 
 ... 
 
 MS 
 
 
 74 
 
 ;69. 
 
 374 
 
 
 21 
 
 
 32« 
 
 ... 
 
 292 
 
 . . 
 
 ■29:^ 
 
 . . . 
 
 'SO 
 
 . . . 
 
 28 
 
 
 39,1 
 
 
 410 
 
 i.VS. 
 
 370 
 
 62, 
 
 6^ 
 
 
 «S 
 
 •54, 
 
 55 
 
 
 10 
 
 . . • 
 
 3S; 
 
 
 176 
 
 M. 
 
 ISO 
 
 . . . 
 
 88 
 
 
 49 
 
 
 374 
 
 
 321 
 
 
 ^'3 
 
 
 423 
 
 
 4 '7 
 
 2,j6, 
 
 3' 2 
 
 .... 
 
 '75 
 
 
 370 
 
 
 273 
 
 . . . * 
 
 210 
 
 . . . . 
 
 190 
 
 . ■ ■ ■ 
 
 161 
 
 
 32 
 
 
 40 
 
 . . * 
 
 227 
 
 
 '55 
 
 
 2s8 
 
 . . . 
 
 361 
 
 . * . 
 
 422 
 
 
 3S3 
 
 . . . . 
 
 22 
 
 32(), 
 
 330 
 
 16S, 
 
 170 
 
 
 286 
 
 
 320 
 
 . • • t 
 
 3' 
 
 . . . 
 
 382 
 
 
 47 
 
 S.M, 
 
 368 
 
 . . . . 
 
 369 
 
 ... 
 
 357 
 
 242, 
 
 244 
 
 . • • 
 
 49 
 
 Simpson 
 
 Sisson 
 Sinter : 
 Slim .- • C. 
 Snccsl))' 
 Smith ■• . 
 Smith ■■. 
 
 (Ircnt Western Ky 
 
 r . l.-.tuloiid- N. W. ky 
 
 r . Ottawa J IresccMt Ky . 
 
 . ky. Co 
 
 (.'nil. Cent. Ky .... 
 
 N. Ky. Co :-,o, 
 
 ■■. I.ant.Tshiie J-^ Vorkbhire Kv 
 
 Atl.c- N. W. Uy : 
 
 (an. Car Co 
 
 •• r. I., u- S. W. Ky V'^. 
 
 •• .-. N. Y. ^- 11. U. Ky 
 
 r . Baker ,',91. 392. 
 
 " ;■• 1 )arley 
 
 " r. Hall Glass ( o 
 
 ' ' -■. Lynn ; 59, 
 
 " r , I'ort Dover Z-^ Lake Huron ky 
 
 ••■ ;■. Spencer 
 
 Society (le Construction (rilochelaga .■. Soci^le ilc Const. Melroji. . 21 . 
 
 Somevvilli- Ky. Co. r. Doughty 
 
 Sohvay Jet. Ky. -•. Caledonian Ry 
 
 Soulo r . (Jiancl I'runk Ky 
 
 South of Ireland Co. r. Waddle 
 
 •■ ( aroliiie Ky. ( 'o. t, 'I'yson 
 
 •' Wales Ky. Co. r. Wythts 
 
 South Kastern Ky. Co. .'. (jouvrement 
 
 Soutliei n Lxpress Co. 7\ Louisville C-^ Nashua Ky . . . . , 
 
 Spettitjue ,- . Great Western Ky 
 
 St. Catharines v. Niagara Central Ky. :■. Harbeau 
 
 St. Denis ;■. NL e-^ O. Ky 190, 
 
 " 7. ^L ^2-^ O. Ky 195. 199, 
 
 St. John r. Erie Ky. Co 
 
 St. Lawrence Sugar Kef. Co. :■. C'ampbell 377. S'^^^. 
 
 cr" Ottawa Ky. Co. r. Lett 
 
 St. Louis, etc , Ky. Co. :■. Southern Express Co 
 
 St. Stephen's liranch Ky. Co. t, Ulack 
 
 Stapley r. L. H. >:- S. C. Ry 
 
 Standard Fire Ins. Co (Caston's Case) 
 
 Stanstead C-' Connecticut Ky. Co. 7\ lirigham 40, 
 
 Stanton r. Can. AtL Ry 
 
 Stranton Iron d-' Steel Co 
 
 Starke : '. IJurke 
 
 Starnes 7'. Molson 
 
 Steam r'. Pullman Car Co. . .. -^57, 
 
 Steel r. S. E. Ry ; .'... 
 
 Steinholi" r\ Corp. of Kent 
 
 Steinweg r . Erie Ry. Co 
 
 Stockpoit Case 
 
 Stebbing :■. Metropolitan Ry. Co 
 
 Stephen :■. Banque d'Hochelaga 
 
 " 7\ Chaussd 
 
 Steven r\ London Steel Works Co. (Delano's Case) 
 
 Stevens r , Davidson 
 
 Straits of Canso Mar. Ry. Co. v. The Queen 
 
 Stratford er» Moreton Ry. Co. !'. Stratton 
 
 Streetsville Plank Road Co. r'. Hamilton &^ Toronto Ry 
 
 Stimpson ?■. The New England o-^ Nova Scotia S.S. Co 
 
 404 
 422 
 '3'> 
 l-'i 
 210 
 
 3'4 
 
 410 
 3,Sh 
 
 22 
 
 32 
 
 "7 
 '32 
 
 3'.> 
 
 :->.\ 
 
 1 86 
 
 27'' 
 25s 
 -19 
 422 
 
 2J3 
 150 
 
 2 So 
 
 307 
 
 8 
 
 200 
 
 200 
 
 (.9 
 390 
 425 
 281 
 
 66 
 366 
 
 55 
 
 4' 
 
 226 
 
 43 
 128 
 
 '94 
 359 
 
 235 
 
 382 
 
 326 
 174 
 •75 
 '03 
 37' 
 57 
 128 
 
 174 
 
 64 
 
 255 
 
 352 
 
^ 
 
 XXXII 
 
 TiiK Railway Law of Canada. 
 
 Mokes 7', Kftstcrn Counties Ky 323 
 
 " r . Saltciiislall 323 
 
 Stoker ?■. Wtllaml Ky 332 
 
 Stubley :■■ London i."-^ N . W. Ky 380. 384 
 
 StudtT r'. HutValo e- l.akc Union Ky 26J 
 
 Siilpliur vi-' Cupper Co. r . McKlroy 228 
 
 Sutlicrland 7 . Cin-al West. Uy 342 
 
 'lalky r . Great Western Ky 349 
 
 'late .'. I'oit Mope Ky 233 
 
 Tattersall .', Nat. St. Co 314 
 
 Taylor :'. Chicliester iSr* Midland Ky. Co 79 
 
 'laylor ;■. Ont. C'-' Que. Ry 212 
 
 Tench :■. Great Western Ky 28 
 
 Tcskier 1'. Grand 'Irunk Ky , 352 
 
 Tiie New World ?■, Kmp 323 
 
 'I'licrrien :■. Morrice 374 
 
 'I'liihauduau <■- • ity Pass. Ky. Co 31 
 
 •' V. Moi.t, St. Ky 289 
 
 Tirol .". Ilendersen 421 
 
 Thomas :\ Geldert 283 
 
 Thompson •■, The Victoria Ky. Co 1 13, 1 14, 115 
 
 :■. Grnird Ti iinU Ky 404, 406 
 
 r. ( ircat Western Ky 252 
 
 " Midland Ky 341 
 
 '" Can. Central Ry 217 
 
 Toms :■. Corp. of Township of W'hilhy 289 
 
 ' ' :■. Township of Whitby 382 
 
 Thornton 7\ Wash. Savin;;s liank 125 
 
 Tinu' Tables Publishing Co. (Welton's l!ase) iJi re 68 
 
 Tivtrton &^ N. iJcvon Ry. Co. z', Luosemore 74 
 
 Toddr. Met. Dist. Ry. Co 187, 238 
 
 Toledo Ry. Co. t', Kodriyuez 27 
 
 " J-^ Can. Southern Ry. Co. r'. Elder 403 
 
 Tolton :. C. I', Ky 187, 238, 244 
 
 '1 ooniey :■. I ondon C-" Brighton Ry 402 
 
 'loronto IJelt Line Ry. Co. ;■. West. Can. L. d-* S. Co 143 
 
 " " V. Lauder 9 
 
 " " tit re 214 
 
 Toronto •St' Lake Huron Ry. t. Crookshank 64 
 
 " Gas Co. 7', Russell 64 
 
 Toronto Ry. Co. r'. Grinsted 289, 342, 365 
 
 Torpy r'. G.T.K 3'. 329, 33° 
 
 Torrance f. Allan 303 
 
 " :■. The Richelieu Co 351 
 
 Tower :■. The Utica &^ Shenectady Ry 35 1 
 
 '1 ownsend r . X. Y. Cent. Ky 286 
 
 Township of Brock 7'. Toronto iS-' Nipissing Ry in, 269 
 
 Trade Aux. Co. :'. Vickers 1 2O 
 
 Traversey ■:■. Gloucester 250 
 
 Treniblay f. Chicago c-^ St. Louis Ry 210 
 
 " f. Tiemblay 150 
 
 Tresler t. C. P. Ry 312 
 
 Trimble r . Hill 166, 275 
 
 Trottier f. Red River Transp. Co 29 1 
 
 Troy &' Boston Ry. Co. f. Lee 186 
 
 Trust d^ Lean Co. of U.C. v. City of Hamilton iii, 112 
 
Im)|;x To Casks. 
 
 XXXIII 
 
 
 323 
 
 .. 
 
 i'i 
 
 , , 
 
 ,V^2 
 
 Bo, 
 
 ,^84 
 
 
 263 
 
 , , 
 
 328 
 
 , . 
 
 342 
 
 
 349 
 
 
 23a 
 
 
 3'4 
 
 
 79 
 
 , , 
 
 212 
 
 , , 
 
 28 
 
 , , 
 
 352 
 
 
 323 
 
 .. 
 
 374 
 
 . . 
 
 3' 
 
 . , 
 
 289 
 
 • • » 
 
 421 
 
 . , 
 
 28,, 
 
 M» 
 
 •IS 
 
 04, 
 
 406 
 
 . . . 
 
 252 
 
 
 341 
 
 1 • • 
 
 217 
 
 . . . 
 
 2«9 
 
 • ■ • 
 
 3«2 
 
 * . . 
 
 '25 
 
 • • ■ 
 
 68 
 
 • > . 
 
 74 
 
 «7, 
 
 238 
 
 . . . 
 
 27 
 
 
 403 
 
 '■i», 
 
 244 
 
 
 402 
 
 
 •43 
 
 
 9 
 
 . . . 
 
 214 
 
 . . . 
 
 64 
 
 . . . 
 
 64 
 
 342, 
 
 365 
 
 329, 
 
 330 
 
 . • 
 
 303 
 
 
 351 
 
 . . ■ 
 
 351 
 
 • • . 
 
 286 
 
 Ill, 
 
 269 
 
 
 I 20 
 
 
 250 
 
 . . * 
 
 210 
 
 
 '50 
 
 ... . 
 
 312 
 
 1 66 
 
 275 
 
 • . • 
 
 291 
 
 
 186 
 
 III, 
 
 112 
 
 'riir|iin\ Ca^f 
 
 'l'iii<|iinii(l .'. Miiisli;i|l 
 
 TwdlKy r . CiiMt f-mitli J-* Wci-tcrn Ky. Co 
 
 Tyro f. Wilkis 53- 
 
 Tyson's Kcff. to, in ic 
 
 ♦• ;. U. T. Uy (06, 
 
 Union Nnv. Co. r. (ouillanl 
 
 I'nitfil States :■. New Dilcans Uy 106, 
 
 Utter r. (iicat Wcsltrn Uy 187, 
 
 Van Allan :■. ( Iraml Trunk Ky 
 
 Vanderweikcr .•■. Vt. Cent. Uy 
 
 Vanhorn r. G T. Uy 1.S7, 238, 243, 
 
 Vaii(;lian ?■. Tnii" Vale Ky 85, i"w), 40S. 
 
 7'.G.T.Ky 
 
 Vi ne/.uela Uy. Co. :■. Kiscli 
 
 Vernon -■. ( ;. T. Uy 
 
 Ve/ina r. The (>een 174, 175, 256, 
 
 Vickers Kxpress Co. 7. C. I'. Ky 2J<o, 
 
 Vicloiian Uy. Commrs, -'. Coultas 
 
 Victorian Ky. < onimissioncrs ''■ < 'oultas 
 
 Vinehery -■. (Irand Tiunk Uy i^l, 353. 
 
 Vital V. Telraiilt 
 
 V()t;el J'. (J. T. Uy 297, 
 
 Vulcan Iron Works /■(• 
 
 W.idor'. C. P. Uy 
 
 Wadhani 7. N. K. Uy 179, 
 
 Waite r . N. K. Ky 
 
 Wallace ''. ( Ireal Western U v. Co 
 
 " r, G. T. Ky .' 1S7, 238, 239, 
 
 Wallhridge 7'. Kartell 105, 106, 108, 122, 
 
 Walker 7'. Great Wei-tern Ky. Co 
 
 Walker v. Old Colony Ky 
 
 Walters 7. C. P. Ky 319, 
 
 Word's Case 
 
 Waul 7'. Great Western Uy 
 
 '• 7. ky.Co... 
 
 Ware '■, Carstey 
 
 Warner ?■. Mower 
 
 Warren '■■ Kake , 
 
 Warring 7'. Manchester, .Sheffield c-^ Lincoln Ry 
 
 Washbourne ?'. Canada Car Co 
 
 Wason Mnfg. Co, 7'. Levis v2-' Kennebec Ky 
 
 Washbuin r. Milwaukee Ky 
 
 Waleroiis l!n^ine Works 7'. t'orp. of Town of Palmersion 
 
 Watkins 7'. Great Noi lliern Uy. Co 
 
 Walling V '. Oasiter 
 
 Watson 7'. Northern Ky 332, 
 
 Webb 7'. Kome, Watertown C-' Ogdensburg Ky 
 
 Weed 7'. Panama Ky 
 
 Wettjen 7'. St. Paul er^ Pacific Ky 
 
 Weir-. C. P. Ky 384, 
 
 Welch V. Maker 12, 
 
 " 7'. Lond. d-' N. W. Ky 
 
 Welleans 7'. Can. Southern Ky 
 
 Wells 7.'. Kilpin 
 
 " 7'. Northern Ky. Co 
 
 ,S8 
 
 25 
 •79 
 
 54 
 III 
 
 407 
 
 36 
 107 
 238 
 
 2S3 
 228 
 
 269 
 414 
 
 187 
 
 5« 
 262 
 
 258 
 281 
 289 
 3*54 
 3.'i5 
 37'' 
 300 
 8S 
 112 
 181 
 
 93 
 244 
 
 27 
 
 239 
 321 
 
 37 
 25.S 
 421 
 372 
 
 22 
 126 
 227 
 222 
 102 
 
 ■55 
 222 
 
 188 
 
 366 
 
 425 
 410 
 
 3'5 
 120 
 
 38s 
 12 
 
 352 
 
 4'3 
 124 
 
 1S5 
 
NXXIV 
 
 The Raii.wav Law of Canada. 
 
 11 
 
 VVeslljourne Cattle Co. r. Tlic Man. ^1-= N. W. Ky 
 
 Weston's Case 43, 
 
 Western Cumberlnnil Iron Co 7. Winnipeg i:-' II. 15. Ry 1 17, 
 
 White 7\ City of Montre.il 
 
 Whilfield T\ A. d~= North Western Ry 197, 
 
 Whitman t. Weste'n Counties Ry 267, 
 
 Whitman 7\ W. o:^ A, Ry. Co 
 
 Whitney 7\ I'lillnian Car C'o 
 
 Wiiiiworth 7'. Gaugain 
 
 Wickham r . N. U. e- C. A. Ry 
 
 Widder ;■. Huffolo ":-" Lake Huron Ry 190, 196, 
 
 Wilcox ?'. Rome, W. d-^ O. Ry . .. , 
 
 Wilkes 7\ Gzowski 
 
 Williamson v . C.l'and Trunk Ry 
 
 Williams r. Rohlin 
 
 " 7'. Great Western Ry 
 
 Williamson's Administrators r. W. C. V. M. ;S~= G. ,S. Ry 
 
 Williamson t'. N. J. Souiliern Ry 
 
 Wilson ex parte 
 
 " V. Graham 
 
 " -'•' <:jiiiiy 36. 41 54, 
 
 « V. Wilion 
 
 " r. H.«S-0. Ry 
 
 * ' V. Newpoi t Dock <-'o 
 
 " r'. Giand Trunk Ry 
 
 " 7'. Northern Ry 
 
 " V. Lancashire ^^ Yoikshire Ry 418, 
 
 Wilton 7'. Northern Ry 
 
 Winf'sor Hotel '"0. ~,\ D.ite 
 
 ' ' '« 7'. Lewis 
 
 Winkler ?■. Gieat Western Ry 
 
 Winnipeg »i-^ Hudson Hay Ry, Co. 7'. Mann loo, 1 16| 
 
 Witliei ly 7'. Regent Canal Co 
 
 Wiihei s 7'. The North Kent Ry , 
 
 Wood 7'. .'-touibridge Ry 
 
 " 7'. Atlantic ^ Noith Western Ry.i66, 169, 171, 174, 185, 195, 
 
 " 7'. S. K. Ry 323, 
 
 " 7'. Atl d- N. W. Ry 185, 19s, 
 
 " V. .Stonrliridge Ry 
 
 " Ont. <£-^ (Jue Ry 223, 
 
 Wo( (lliill 7'. CJieat Western Ry 
 
 WoodiulT7'. Harris 
 
 '■ 7'. Corporation Town of I'ettrliorou^h 
 
 7.G. W.Ry 
 
 Woodward t'. All.nn 
 
 Worce-ter Corn Exch.inye /// /v 
 
 Wrij;hl 7', Midland Ry 323, 
 
 W)ali 7'. Senec.tl 96, 
 
 •' 7'. Daienth Valley Ky. Co 
 
 •' ;• Levis lL-' Kenneln-c Ry 
 
 Yeomans 7'. Corporation of Co. of Wellington 
 
 York e--' Midland Ry. Co. r'. I ludson 
 
 " C- Norih Midland Ry. t'o. 7'. The (^ueen 
 
 Young 7'. C. r. Ry. Co 
 
 Zahiiikie 7'. Cleveland, Coluinhiis c-^ Oliio Ry. Co 
 
 Zimmer 7'. Grand Trunk Ry 7, 
 
 Zimmer 7'. Grand Trunk Rv 
 
 •39> 
 
 •30. 
 
 260 
 
 44 
 118 
 
 377 
 ?49 
 
 3'3 
 406 
 
 358 
 126 
 
 •03 
 210 
 
 3«4 
 191 
 289 
 201 
 366 
 
 '35 
 
 106 
 
 88 
 
 140 
 
 5.'? 
 20 
 
 3S8 
 368 
 
 372 
 
 399 
 
 422 
 
 384 
 36 
 
 54 
 3«4 
 231 
 ^6S 
 328 
 '79 
 204 
 328 
 204 
 
 '79 
 224 
 
 3' 
 
 42 
 
 54 
 342 
 346 
 III 
 326 
 120 
 
 61 
 no 
 '65 
 
 24 
 259 
 3'4 
 no 
 8 
 268 
 
• • • • 
 
 260 
 
 ■•43. 
 
 44 
 
 "7. 
 
 118 
 
 
 377 
 
 •>97. 
 
 249 
 
 267, 
 
 3'3 
 
 1 ■ • > 
 
 406 
 
 .... 
 
 358 
 
 . * . . 
 
 126 
 
 .... 
 
 '03 
 
 196, 
 
 210 
 
 .... 
 
 3«4 
 
 .... 
 
 191 
 
 .... 
 
 289 
 
 .... 
 
 201 
 
 .... 
 
 366 
 
 * • ■ . 
 
 '35 
 
 .... 
 
 106 
 
 • . • . 
 
 88 
 
 .... 
 
 140 
 
 54, 
 
 55 
 
 • > • • 
 
 20 
 
 .... 
 
 358 
 
 . . . . 
 
 368 
 
 .... 
 
 372 
 
 .... 
 
 399 
 
 4'8. 
 
 422 
 
 .... 
 
 384 
 
 . . . . 
 
 36 
 
 •39, 
 
 54 
 
 
 384 
 
 116, 
 
 231 
 
 . . . . 
 
 36S 
 
 .... 
 
 328 
 
 . . . . 
 
 '79 
 
 '95, 
 
 204 
 
 323. 
 
 328 
 
 •95, 
 
 204 
 
 
 '79 
 
 223, 
 
 224 
 
 .... 
 
 3' 
 
 . . . . 
 
 42 
 
 
 54 
 
 . . . . 
 
 342 
 
 .... 
 
 346 
 
 .... 
 
 III 
 
 323, 
 
 326 
 
 .96, 
 
 120 
 
 
 61 
 
 .... 
 
 110 
 
 . . . . 
 
 '65 
 
 . . . . 
 
 24 
 
 . . . . 
 
 259 
 
 .30, 
 
 3'4 
 
 .... 
 
 no 
 
 ■•7. 
 
 8 
 
 
 268 
 
 A TREATISE 
 
 O.N ■IIIK 
 
 Raihvav Law of Canada. 
 
 CHAPTER I. 
 
 INTRODUCTORY, 
 
 1. 'I !>■' fraiuJiiiC. 
 
 2. I-cdi-ral ,iisd Pi criiicLil Acts , 
 
 3. Who may coit'tinct atid opuiitc 
 raikoays. 
 
 4. Qucsticns of jn>udictipn, 
 
 5. Special and general Acts, 
 
 6. Ci'intyiictcd or tc be cciistiKcled 
 under the authority of aiiv Act 
 pissed by the Parlianieut of 
 Canada . 
 
 7. P/o-iincial /eg/slat ion may if 
 confirmed. 
 
 S. /■■/feet of Sec. 306 of 'J he Rail- 
 way .id. 
 
 1. Raihvai's in this country exist exclusively in virtue of legii-Tlie fraii' 
 laiive authority, and arc invariably constructed and operated by^-^'i'se. 
 incorporated companies subject to statutory conditions and Hmit- 
 ations. 
 
 It is true that it has been held in England and the United 
 Slates that any individual may construct and operate a railway, 
 either upon his own land, or that of others with the owner's con- 
 sent; but he does so at his own risk, and is liable not only civilly 
 for all damages and annoyance caused to • 'S neighbors by the 
 construction and operation of the railway and the noise and 
 smoke of trains, etc., but criminally by indictment for creating a 
 public nui-ance. (i) We must therefore conclude in the Ian- » 
 
 guage of Crompton, 1,, in Rcgina v. Train, (2) that " the 
 legal carrying out of such a scheme can only be effected by auth- 
 ority of Parliament." In otlier words, the legislative authority is 
 requi-ed to protect railway companies from the consequences 
 
 (I) Rejjina v. Train, 3 F. &, F. 23. (2) 3 F. &. F. 22. 
 
Federal and 
 
 Provincial 
 
 Acts. 
 
 a The Railway Law of Canada. 
 
 of the doing of that which would otherwise amount to a pubhc 
 nuisance. 
 
 In this country then we may safely say that railways can be 
 legally constructed and operated only under the authority and 
 powers granted by the Legislature. 
 
 ^. It may bp convenient to point out here what railways come 
 under the jurisdiction of the Federal, and what under that of 
 the Provincial, Legislatures. 
 
 Companies wiiose authority to construct and operate a rail- 
 way is derived from the Parliament of the Dominion, with the 
 exception of government railways, are subject to the provisions 
 of the Dominion Railway Act, (i) and all railways which have 
 been declared by Act of Parliament to be works for the general 
 advantage of Canada, and r.ll railways crossing or connecting 
 therewith, are also subject to the provisions of that Act, (2) with 
 the exception of those provisions relating to the organization of 
 the company, meetings of shareholders, capital stock, payment of 
 dividends, etc., and internal economy generally. (3) The Act 
 at present in force is that passed in the month of AJay, 18SS, 
 known as "The Railway Act, 51 Vic, Chap. 29"; and the 
 provisions referred to are contained in s:"'ions 32 to 89 respec- 
 tively. These provisions may be made applicable to any rail- 
 way within the legislative authority of Canada, by order of the 
 Governor-in-Counci!, upon application after public notice in the 
 Canada Gazette. (4) Railways which are constructed and oper- 
 ated under authority granted by the Legislature of any of the Pro- 
 vinces, and which have not been declared by Act of the Federal 
 Parliament to be works for the general advantage of Canada, are 
 under the control of the Legislatures of the Provinces, and are 
 subject to the provisions of the Provincial Acts. It is unneces- 
 sary to specify the different railways which are subject to the 
 auihoriiy of the different Legislatures, but there might be men- 
 tioned as instances the Intercolonial Railway, tlte Grand Trunk 
 Railway, and the Canadian Pacific Railway, as having been de- 
 clared to be works for the general advantage of Canada, and being 
 subject to the legislative authority of the Dominion Parliament ; 
 
 (I) The Rciilwav Act, 51 Vic, c p. 2c), sees. 3 and 5. 
 
 (3) llie Railway Act, see. 306. (3) Ibid, sec. 5. 
 
 (4) The Railway Act, sec. 7. 
 
 ): ■ 
 
Introductory. 3 
 
 (i) while purely local roads, within the limits of any one Province, 
 and which do not connect with or cross such roads as those 
 ab(/ve mentioned, are subject to the authority ol" the Provinci U 
 Legislatures, It is provided in addition by sec. 4 of The Railway 
 Act that all provisions of the Act relating to any matter within 
 the legislative authority of Canada shall apply to all railways, 
 whether otherwise within the legislative authority of the Federal 
 Parliament or not. The section specifies as examples all provi- 
 sions relating to the crossing and junction of one railway with 
 another, offences, and penalties, and statistics. The Provincial 
 Riiilway Acts also contain provisions on these subjects, and there 
 would here appear to be a conllict of legislative jurisdiction. It 
 is not, however, within the scope of this work to consider at any 
 Icngih constitutional fiuestions, except in so far as they may 
 arise incidentally in connection with any i^articular ] oint that 
 may need to be discussed. For the present, therefore, it is pro- 
 i;os<.d to pass over such questions and to consider the Statutes 
 under which railways in this country exist and are carried on, 
 and where we find a clashing of Federal and Provincial logisla- 
 tion, to discuss the constitutional questions as they arise. 
 
 In so far as concerns the incorporation of railway comjjanies, 
 their subsequent organization, their powers, iheir operation and 
 their rights and liabilities, the references will be generally con- 
 fined to the Dominion Railway Act, which is the most impor' 
 tant, not only in that its provisions govern most of the railways 
 in tb.is country, but inasmuch as Provincial legislation has hither- 
 to been framed, generally speaking, on the lines of the Dominion 
 Act. References to the Provincial Acts will be limited to those 
 points on wliich they differ in some essential feature from the 
 Dominion Act. (2) The first questions to be considered areas 
 to who can construct and operate railways, and what the law 
 retinites should be done by them before they can commence 
 construction and operation. 
 
 3. First, as to who may construct or operate a railway. In Who may con- 
 
 this country, as a matter of practice, railways are entirely con- ^'''"" '.\ I-'^' 
 ^ ^ ' J J ^ rate railways. 
 
 structed and operated by incorporated companies. According 
 to the interpretation clause of The Railway Act, the word " com- 
 
 (i) TheRy. Act, sec. 306. (2) For further differences see Appendix. 
 
^fra" 
 
 The Railway Law ok Canada. 
 
 % 
 
 
 Questions of 
 jurisdiction. 
 
 HI 
 
 pany " includes any " person" having authority to construct or 
 operate a railway ; (i) but a perusal of the Act would lead one 
 to believe that the Legislature never intended that any natural 
 person should be authorized to construct and operate a railway 
 for public business ; though in certain parlictilar instances rail- 
 ways may be operated by persons not having corporate powers 
 nor special legislative authority, under certain restrictions and 
 for a limited period of lime. Fur instance, it is provided by the 
 Act that if a railway should be sold under any lawftd proceed- ^ 
 ing, and p irch.Tscd by miy person or corporation not havini; 
 legislative authority to hold and operate the railway, the pur- 
 chaser may operate such railway and collect tolls and fares lor 
 the carriage of goods and passengers, just as the company pre- 
 viously operating it could have done, subject to the restrictions 
 and conditions piovided by the Act. (2) \Viih this exception it 
 may be said that all railways in this country are constructed and 
 oiicrated by incorporated coin])anies. 
 
 4. In the Provinces, if the railway is for provincial ])ur|.oses 
 only, and is confined to the limits of the Province, the companies 
 are incorporated by Act of the Provincial Legislature, and liiev 
 are governed by the provisions of the special Act incorporating 
 them, and the general provi.->ions of the Provincial Railway Act, 
 in so far as they are not excepted by the special Act. On the 
 other hand, railways which connect one Province with any other 
 or others of the Provinces, or which e.\tend beyond the limits of 
 the Province, are subject to the e.\clusive jurisdiction of the Do- 
 minion Parliament and to the provisions of the Dominion Rail- 
 way Act, (3) except in so far as those provisions may b^ ex- 
 cepted by the special Act incorporating the company, and this 
 can be done by enacting in the special .\ct that the sections of 
 the general Act proposed to be excepted shall not be incor[)or- 
 ated in the special Act. Also all railways, which, though wholly 
 situate within the Province, are, before or after their construction, 
 declared to be for the general advantage of (-anada or for the 
 advantage of two or more of the Provinces, are subject to the 
 
 (1) Sec. 2 {m. 
 
 (2) Sees. 278-280. There is no sucli provision containeil, however, in th'j 
 Provincial Acts, anil tlie purchaser of a IoctI railway would have to apply 
 to the l.egisjatuie for authority before he could operate it. 
 
 (3) B. N. A. Act, sees, gi, 92, § 10 (n). 
 
Introductory. 
 
 exclusive jurisdiction of the Dominion Parliament, (i) but are 
 not subject to sees. 32 to 89 of The Railway Act, unless con- 
 structed under the authority of an Act of the Dominion Parlia- 
 ment, or unless these sections are made specially applicable to 
 the particular railway or company in the manner provided by 
 The Railway Act. (2) There here arises an apparent difficulty 
 as to the jurisdiction of the Local and Federal Legislatures in the 
 case of a local railway declared to be for the general advantage 
 of Canada, or crossing or connecting with a railway under the 
 Federal authority. Sub-section 10 (c) of section 92 of the 
 B. N. A. Act would se-jm to bring the two jurisdictions into 
 direct collision. A railway company incorporated under a locai 
 Act, and for a purely local purpose, is within the exclusive juris- 
 diction of the local Legislature; but as soon as the railway is 
 declared to be a work for the general advantage of Canada, it 
 comes under the Federal jurisdiction. What then becomes of 
 the special and general local legislation affecting such railway? 
 In the Dominion Act of 1883, (3) as amended, it was specially 
 provided that : " Nothing in this section shall in any way affect 
 or render inoperative the provisions of any Act of a local Legis- 
 lature heretofore passed, authorizing the construction and rim- 
 ningof any such railway or branch line " (/.i?., railways ot branch 
 lines crossing or connecting with railways under Dominion au- 
 thority), " or any act amending the same ; but hereafter the same 
 shall be subject to the legislative authority of the Parliament of 
 Canada." Even the Act containing this section was open to 
 some doubt on the subject, as seen in the case of CorJ>. 0/ St. 
 Joseph V. Quebec Central Kaihvay. (4) This was the case of 
 a local railway brought under Federal jurisdiction by crossing 
 the Intercolonial Railway ; and Ramsay, J., held that the provi- 
 sions of the local Act of 1880 (Que.) with regird to penalties 
 for obstructing highways were not abrogated in the case of this 
 railway by the Dominion Act, but remained in force, and ap- 
 I)lied to the railways for which it was framed and of whose char- 
 ter it was part. However, this holding may be said to be obiter, 
 inasmuch as the point decided by the Court was, that under 
 either the Dominion or the Quebec Act, a justice of the peace 
 
 (I) B. N. A. Act, sec. 92, § 10 {c), 
 (3) 46 Vic, ch. 24, sec. 6, ss. 2. 
 
 (2) Sees. 5, 7. 
 
 (4) II Q. L. R. 193. 
 
The Railway Law of Canada. 
 
 
 had jurisdiction to hear and decide a complaint against a railway 
 company for obstructing a highway. But in the Revised Statutes 
 of Canada and the present Act of 1888, the above subsection 
 was changed, and now reads as follows ; (i) 
 
 " Every such railway and branch line shall hereafter be sub- 
 ject to the legislative authority of the Parliament of Canada ; 
 but the provisions of any Act of the Legislature of any Province 
 of Canada, passed prior to the 25th May, 1883, relating to any 
 such railway or branch line, and in force at that date, siiall re- 
 main in force so far as they are consistent with any Act of the 
 Parliament of Canada passed after that date." 
 Special and 5. The effect of this clause in deciding as to wiiat statutory 
 general Acts, enactment would apply is open to some doubt in many instances, 
 and so far the jurisprudence has not thrown much light uj^on the 
 subject. For instance, it is customary to include in the .\ci of 
 incorporation the whole or a large part of the gener;(l Act by 
 which the railway will be governed, and unless excepted by the 
 special Act the general Act of the Province in which the line is 
 to be constructed (if a local work) is made to apply to tiic railway 
 company seeking incorporation, and is expressly declared to ibrm 
 part of the special Act and to be construed therewith as form- 
 ing one Act. (2) 
 
 Suppose the case of a local railway, incorporated by a Pro- 
 vincial Statute, and having the provisions of the Provincial 
 Railway Act nicorporated in its charter, being declared a rail- 
 way for the general advantage of Canada. The difficulty is to 
 decide whether and to what extent the provisions of the Provin- 
 cial Act would remain in force and apply to such railway. .Vc- 
 cording to sec. 307 of The Railway Act, such provisions as were 
 in force prior to 25th May, 1883, would remain in force so far as 
 they would be found to be consistent with any .Act of the Domi- 
 nion passed after that date. And it would be for the courts to 
 decide whether they were consistent or not. 
 
 Again, special provision is made by sec. 6 of The Railway Act, 
 that if in any special Act it is provided that any provision of any 
 general railway Act, in force at the time of the ])assiiig ol the 
 special Act, is excepted from incorporation therewith, or if the 
 
 (1) Sec. 307 Ry. Act, 1888. 
 
 (2) See Quebec Ry. Act, 1880, ch, 43, sec. 2, sub-sec. 2- 
 
 M 
 
 'i • 
 
 w 
 
Introductory. 
 
 a railway 
 1 Statutes 
 ibscction 
 
 r l)c sub- 
 Canada ; 
 Province 
 ig to any 
 , shall re- 
 let of the 
 
 statutory 
 instances, 
 upon the 
 he Act of 
 ■9.\ Act by 
 ;ed by the 
 the line is 
 he railway 
 eJ to tbrm 
 h as form- 
 by .1 Pro- 
 Provincial 
 ired a rail- 
 culiy is to 
 lie Provin- 
 Iway. Ac- 
 )ns as were 
 :c so far as 
 ' the Domi- 
 e courts to 
 
 ailway Act, 
 sion of any 
 ;siiig of the 
 h, or if the 
 
 application of any such provision is extended, limited, or quali- 
 tied, the corresponding provision of The Railway Act shall be 
 excepted, extended, limited, or qualified in like manner, (i) 
 
 It would seem from the language of this section that if there 
 were no provisions in the present Act corresponding to the thus 
 extended, limited, or qualified provisions of the former general 
 Act, the latter provisions would stand. But it is to be regretted 
 that the language of the statute is not more explicit. 
 
 Cases have arisen before our courts where these questions 
 have been discussed or touched upon, with the result that some 
 of the light of jurisprudence may be thrown upon the subject. 
 
 For instance, the question recently came before our courts as 
 to whether the Grand Trunk Railway Company was obliged to 
 construct a farm crossing for each subdivision of a lot of land, 
 and the point was raised as to whether the relevant clauses of 
 The Railway Clauses Consolidation Act (2) or those of the jire- 
 sent Act applied. 
 
 The Grand Trunk Railway Company was incorporated by 16 
 Vic. (1852), ch. 37. At that time The Railway Clauses Consolida- 
 tion Act (3) was in force, and by section 2 of the Grand Trunk 
 Railway Act of Incorporation, it was specially enacted that cer- 
 tain sections of The Railway Consolidation, Clauses Act should 
 be incorporated with the sjiecial Act. It was held that the 
 relevant sections of the Consolidation Act applied ; (4) but, as 
 Bosse, J., remarked, " as the charter required the company to con- 
 struct farm crossings, it is unnecessary to discuss the subsequent 
 general statutes." (5) 
 
 In Zimmer v. Grand Trunk Railway, (6) the question came 
 up in the Divisional Court as to whether, supposing for argument's 
 sake that the original " Railway Clauses Consolidation Act " 
 had been repealed, the Grand Trunk Railway Act, (7) not hav- 
 
 (1) liy the Act incorporating tlie Can. I'ac. Ry Co., 44 Vic , cli. i, 
 the provisions of tlie Conso'idated Ry. Act of 1879 are made applicable to tlie 
 building of the Can. I'ac. Ry. Co., in .«o far as tiiev are not inconsistent with 
 or contrary to the saitl Act of incorporation. C. I*. R. Co. 7', Major, 13 ,S, C. R. 
 233, 9 L. N. 410. 1887. 
 
 (2) 14 & 15 Vic, c. 51. (3) 14 ,S: 15 Vic, c. 51. 
 
 (4) Cie dn Grand Tronc r. Hnard, i R.J. (^. 501 (Q. B.). 
 
 (5) Ibid., p. 5cS. 
 
 (6) 21 O.I'i. C2S, oiifunied in appeal, but on ddTerent grounds l>y 19 
 Ont. App. C9V (7) 16 Vic, cap. 37. 
 
The Railway Law of Canada. 
 
 v;-:e 
 
 if i! 
 
 ing been repealed, those clauses of the Consolidation Act which 
 were incorjiorated in it were not thereby repealed. 
 
 Robertson, J., admitted that as a general rule this contention 
 could be upheld, but found in the particular Act a special pro- 
 vision whereby Parliament had reserved to itself the right to 
 amend or enlarge any of the clauses which by tlie special Act 
 incorporated therewith any of the clauses of the general Act. (i) 
 In apjieal this point was not decided, but Mr. McCarthy, Q.C., 
 and Mr. Nesbitt for the Grand Trunk Railway maintained that 
 the Consolidated Statutes of Canada (1859) did not rei)eal the 
 clauses of 14 and 15 Vic, c. 51, but re-enacted them. (2) . , ., 
 
 It is somewhat difficult to arrive at a conclusion from the 
 foregoing, but the following is suggested by the author : Section 
 307 of The Railway Act lays down a general principle, that all 
 Acts of Provincial Legislatures relating to the now Dominion 
 railways (as we may call tliem for convenience), enacted prior 
 to 1S83, are to remain in force so far as they are consistent with 
 any Dominion Act passed alter that date; but under sees. 5 
 and 6, even when the Provincial legislation prior to 1883 does 
 conflict with Dominion legislation passed after that date, if such 
 Provincial legislation is incorporated in the com] xny's charter, 
 the same must prevail as against the provisions of The Railway 
 Act. And where the provisions of the Provincial general Act 
 have been excepted, extended, limited or qualified by the .special 
 Act, the corresponding provisions of the Dominion Act shall be 
 excepted, extended, limited or qualified in like manner. 
 
 Finally, the whole is subject to any express provisions of the 
 special Act. (3) When a company is incorporated by a special 
 Act, and there are provisions in the special Act as well as in the 
 general Act on the same sul)ject wliich are inconsistent; if the 
 special Act gives in itself a complete rule on the subject, it 
 would seem that the expression of that rule amounts to an excep- 
 tion of the subject matter of the rule out of the general Act. But 
 when the rule given by the special Act applies only to a portion 
 
 (O 21 O. R. 632. 
 
 (2) See C. S. <-.., ch. 66, sec. {'.3 ; schedule B, p. 1227. In the revision of 
 1886, C. S. C, ch. 66, was preserved, nor was it repealed by the Act of 1888. 
 Zimmerr'. G. T. R., ig O. A. R. 695. 
 
 (3) Sec. 3, and see AV St. Catliiiines & Niagara Central Ry. Co. v. Bar- 
 beau, 15 O. R. 583. 
 
 'ft 
 
 
 M 
 
Introductory. 
 
 'niion 
 
 W 
 
 pro- 
 
 M 
 
 ht to 
 
 'h 
 
 il Act 
 
 ■■■■,--.^ 
 
 t. (I) 
 
 ■ '•^■'■i 
 
 Q.C., 
 
 
 1 til at 
 
 
 il the 
 
 
 of tlic subject, the special Act may apply to one portion and the 
 general Act to the other. And the probable intention of tlio 
 Legislature is important in considering such a question, (i) 
 
 (». Some doubt has arisen as to the interpretation of the phrase Constructed 
 " constructed or to be constructed under the authority of any "^.^^^J^ ^J^ 
 Act i)assed by the Parliament of Canada," used in sec. 5 ofthe authority 
 the Act. In an Ontario case, (2) a company was incorporated of ^^"^y ^ct 
 by the Ontario Legislature, and by an Act ofthe Dominion l*arii- Pariiamcni of 
 anient tlie Govern or-in-Council was authorized to grant a sub-t:anach. 
 sidy to tlic company ; and by another Act of the Dominion Par- 
 liament, the compan>'s railway was declared t5 be a work for 
 the general advantage of Canada, and the company was author- 
 ized to build a branch line. No further powers of any kind 
 were conferred upon the company by the Dominion Parliament. 
 It was held that the effect of the declaration, that the work was 
 a work for the general advantage of Canada, was to bring it 
 under the exclusive legislative authority of the Parliament of 
 Canada, but tliat the Acts of the Ontario Legislature previously 
 passed were in no way affected, that the railway in question was 
 not one " constructed or to be constructed under the authority of 
 any Act passed by the Parliament of Canada," (3) and therefore 
 the sees. 4 to 39 of R. S. C. 109 (corresponding to sees. 32 
 to S9 of the present .\ct) did not apply to it. (4) 
 
 t. As affecting the controversy as to the position of Provincial Provincial 
 
 legislation witii regard to railways subsequently coming under '^B'^^^^^'o" 
 ,,.,,..,.. • , , , , , , ■ • . may be con- 
 
 the lederal jurisdiction, it should be noted that provision is fu-med. 
 
 made in section 308, wliereby the Governor General may, by 
 
 proclamation, confirm such legislation in force before the passing 
 
 of Tlic Railway Act, which then becomes as valid as if it had 
 
 been enacted by the Parliament of Canada. 
 
 8. The practical effect of section 306, declaring the leading Effect ofSec. 
 
 lines of railway to be works for the general advantage of Canada r'V'^'^'a 
 
 as well as all other lines connecting with or crossing such lines, 
 
 is to bring, with few exceptions, most of the railways in Canada 
 
 (1) Ontario & Sault Ste. Marie Railway Co. v. The Can. Pac. Ry. Co., 14 
 O. R. 432, and cases there cited. 
 
 (2) /vVSt. Catharines & Niagara Central Ry. Co. v. Barbeau, 15 O. R. 
 583- 
 
 (3) R. S. C, cap. 109, s. 3. 
 
 (4) See also Toronto Belt Line f.Lauder,i90. R. 607, and cases there cited. 
 
r ']!, 
 
 
 f 1 1 
 
 ^Lh 
 
 to 
 
 The Railway Law of Canada. 
 
 under Federal jurisdiction, and, for financial reasons, it i^ now 
 found advisable to obtainj charters from the Dominion Parlu- 
 ment ratlier than from the Provincial Legislatures. 
 
CHAPTER II. 
 
 OKGANIZATION AND MANAGEMENT OF RAILWAY 
 COMPANIES. 
 
 iNcoRroRATioN— Offices of Com- 
 I'ANY— Provisional Dirkctors 
 ANiJ TiiKiK. I'owiiRs— Capital, 
 
 ETC. 
 
 1. Powers rested in corporations, 
 
 2. Limit oj ihareholders'' iiabilily- 
 
 3. Offuis of the company. 
 
 4. Provisional directors and their 
 powers . 
 
 5. Moneys deposited to be with- 
 drawn for certain purposes only. 
 
 6. Allocation of stock. 
 
 7. Capital stock and shares. 
 
 8. Application thereoj. 
 
 g. Pint meeting of shareholders, 
 10. Notice thereof. 
 ir. Predion of directors . 
 
 12. How capital may he increased. 
 
 13. Votes of shareholders. 
 
 14. Who may hold stock in a rail- 
 way company. 
 
 CORPORATE MEETINGS. 
 
 15. Annual meetin[;s and special 
 meetings. 
 
 16. Proof of proceedings at meetings. 
 
 17. Presumptions. 
 
 iS. Interference of Court. 
 
 1 9. Special and general meetings . 
 
 20. Adjourned meeting. 
 
 2 1 . Irregular meetings. 
 
 DIRECTORS. 
 
 Election op. 
 
 De facto directors. 
 
 Qualification. 
 
 Vacancies, 
 
 President. 
 
 Meetings of directoi s, notice of. 
 
 Voting. 
 
 Directors subject to shareholders 
 and by-laws. 
 , Disability of ofticers, contractors 
 
 and sureties. 
 . Powers of dii ectors. 
 Their poiition as tiustees. 
 
 . Liability of. 
 
 . Liability of company and 
 directors. 
 
 . Compensation of, 
 
 . Liability of company for re- 
 ports of directors. 
 
 OFFICERS AND AGENTS. 
 
 37. General manager or superin- 
 tendent and other officers. 
 
 38. Libel. 
 
 39. Manslaughter, 
 4-). Conductors. 
 
 4 1 . Station agents . 
 
 42. Contractors. 
 
 43. Agents generally, 
 
 44. Acquiescen ce. ratification, 
 
 45. Notice. 
 
 22. 
 
 23 ■ 
 24. 
 25. 
 26, 
 27, 
 28 
 29 
 
 31 
 
 32 
 
 33 
 34 
 
 35 
 36 
 
 1. Section 31 of The Railway Act pmviilos that every com- Powers vested 
 pany inciri)oraied under special Act shall he a body f^^'-pora^e, [?J°''P°'^'^' 
 vested with such cor|K)rate powers, privileges and immunities as 
 
^^ 
 
 Limit of 
 
 siiarcholders 
 liability. 
 
 Offices of the 
 company. 
 
 It The Railway Law of Canada. 
 
 arc necessary t/icarryinto effect tlu- inleiition and ohjecls of tlie 
 Act and the special Act, and \vliicl\ are incident to such corpora- 
 tion or arc expressed or included in The Interpretation Act. 
 
 According to Tiic Interpretation .Act, (i) corporations have 
 jjower to sue and be sued, contract and he contracted with by their 
 corporate name, to have a common seal, and to alter or ciiange the 
 same at their pleasure, and tp have per])etual succession and hold 
 personal property or moveableWwkl4y^viij)oses for whicli the 
 corporation is constituted, and to alienate the same at i)le\isurc ; 
 and tliere shall also rest in any majority o*" the members of the 
 corporation the power to bind the others ' leir acts, and the 
 individual members of the corporation; ^mpted from per- 
 
 sonal liability for its debts or obligations or acts, i)rovideil they 
 do not violate the provision of The Act incorporating ihcni. 
 
 Ji. The liability of a shareholder toward the creditors of tiie 
 company is limited by section 86 of the Act, to an amount equal 
 to the amount unpaid on the stock held by him, and uniil the 
 whole amount of his stock has been 'xaid up ; but such liability 
 does not arise until an action has first been taken by the credi- 
 tors against the company, and, execution having issued, is returned 
 unsatisfied in whole or in part. 
 
 3. The special Act incorporating a railway company speci- 
 fies where the head office (2) shall be situated ; but the lioard of 
 Directors may establish one or more offices in any other ])laces 
 in Canada or elsewhere, (3) but the doiricile or residence of the 
 company remains at the place fixed by its charter as the site of 
 its head office. (4) | 
 
 (1) R. S. C, ch. [, sec. 7, No. 43. 
 
 (Z^ Tn Welch :■. Baker (21 L. C. J. 97, 1S76). it was Iield that in nri action 
 ajjainst a shaielioliiir to recover tlie amount unpaid on liis shares, the cause 
 of action arose at Montreal, where the company had its principal office, and 
 where judi;nient was rendered for the debt due l)y tlie company, and execution 
 was also issued, .and not at BedTird, where the shareholder subscribed for 
 his shares. 
 
 (3) Sec. 32. ' .- 
 
 (4) A railway company being a corporation can only have one resilience, 
 and that its head office. A r£..ihvay company which has its head oftice out 
 of the Province of Quebec must give security for costs, Canada Atlantic Ky. 
 Co. 7: Stanton, 11 L. N. 388(1888), M. L. R.. 4 S.C. 160. 
 
 4 
 
iftlie 
 inra- 
 
 the 
 
 tlie 
 
 Organization and Management of Rv. Companies. 13 
 
 4. I'lic sjiccial Act names tlic jjersons who arc incorporated I'rovisional 
 as a ((iinpany. and appoints certain |of ihcm as I'rovisioiial IjiJ.*!!: '''^^"|"'_ 
 directors, of whom ilic majority form a tiiionim, and these pro- 
 visional .lireclurrt liold olfux- lUitii the liisl clci tion of directors, 
 
 aii'i they o; en stock-books and jirocurc sul)S(:riptions of stock 
 and receive payments on accoiuU of subscriptions. 
 
 5. Such pa>menls are deposited by them in a bank, ami Mi>n(<ys dcpo- 
 these monies cannot l)e withdrawn, except for the purjxjses ' ' tvm,(lraw'n for 
 the railway, or upon the dissolution of tiic company, for any CLiiain pur. 
 cause whatsoever. 'I liey also cause plans or surveys of the road ^'^^^'^ °"'y" 
 
 to lie made, and they allot and apportiuii the stock among the 
 subscribers, (i) 
 
 (!. If more than the whole stock has been subscribed, they Allocation of 
 allocate antl ajiportidu the authorized slock among the sul)-''''^'' ' 
 sciibers, a-^ liiey deem most advantageous and conducive to the 
 furtherance of the undertaking. (2) 
 
 T. '1 he capital stock of the company, the amount of which ^"■'>P't'il stock 
 shall be stated m the special Act, shall Ijc divided into shares of 
 one hundred dollars each ; 
 
 8. Anil the money so raised shall be applied, in the fust place. Application 
 to the payment of all fees, expenses and disbursements for pro-tln-'n-'of. 
 curing the passing of the special Act and for making the surveys, 
 
 plans and estimates of the works authorized by tlie special Act, 
 arid all the remainder of such money shall be ai)i)lied to the 
 making, equipjiing and completing and maintaining of the said 
 railway and other purposes of the undertaking. (3) 
 
 9. As soon as twenty-five per cent, of the cajjital has been First meei'ng 
 subscribed, and ten per cent, of the amount subscribed paid np^ ^^f ^l>^''i-'l>o"l- 
 thcy call a meeting of thj shareholders at the h.ead office of the 
 Company, 
 
 10. Giving four weeks notice of the meeting by advertisement Notice there- 
 in the Canada Gazette, and in a local newspaper at the jilacc '^^' 
 
 where the head office is situated. 
 
 11. At this first meeting, the shareholders who are qualified Election of 
 elect the number of directors fixed by the special Act. (4) 
 
 directors. 
 
 # 
 
 (I) Sec. 33. 
 
 (2) Sec. 34. 
 
 (3) Sec. 35. 
 
 (4' Sec. 36. 
 
14 
 
 Thk Railway Law of Canada. 
 
 How capital 
 may be 
 increased. 
 
 Votes of shai'c 
 holders. 
 
 If 
 
 I 'i ■■ 
 
 1^. The original stock of the conip;uiy may be increased, (i) 
 will) tiic approval of the Governor-in-Coiincil from lime to time, 
 lo ,my amount, provided that tiie increase is authorized by a 
 vote of the shareholders who hold at least two-thirds of the sub- 
 scribed stock, at a meeting called for the piu'imse after special 
 notice as rt(]uired by the Act. (2) 
 
 13. Each shareholder, as in other corporations, has a vote for 
 
 1 1) Where there is evidence thai the orifjinal noiiiinal capital was never 
 jiaiil in, the directors have no power lo increase liie stock of tlie company, 
 nnil as Ihe stock held by the defendant consisted wholly of new unauthorized 
 sKJk, the jjlainliffs, execution creditors of the company, whose writ had been 
 relinncd un.'^ati.'-litd, cculd ml recover by instituting procecdin_t;s by way of 
 scire facias against the defendant as Imlder of shares not fully jiaid up. Page 
 r. Austin, 10 S. C. R. 132. 
 
 The directors of an incorporated company, even when the Act aulhori/x;' an 
 increase of caj-.ital, have not the right lo order such increase, if it be proveil 
 thai there are ^u{^lcienl funds in hand, all debts i>ai(l, and if such increase be 
 orderid sini]ily to secure lo the direct(,rs the control of the ali'airs of the com- 
 pany. I'enaull v. Mdol, 12 Q. L. R. 248, (Ji. 1). 
 
 Held, affirming the decision ofC. 1'. Uiv., Huiton, j . A., diss : That the duly 
 of the Provincial .Scfrctary in Ontario in issuing the notice of the increase 
 of the capital slock in an incorporated company, required lo be riven under 27 
 Vic, c. 23, s. 5, ss. 18, is merely ministerial, and tl.at ihe requirements of 
 the Act being complied with, he has not any discretion in the matter, but must 
 issue Ihe notice. 
 
 Held, also, that the power conferred of increasing the capital stock by 
 sub.-secs. id, 17 and 18 of sec. 5, is a general [jower nol limited lo a single 
 occasion ; and Held, that there is nothing in the Act which niak"s a prior sub- 
 scription and payment of the new stock, or a part of it, a requisite lo the 
 right of the conqjany to have the notice published, /n re ihe Massy Mnlg. 
 Co., 13 O. A. R. 446 (Court of Appeals). A conqiany was incorporated under 
 27-28 Vic, cap. 23, with jiower to increase by by-law the capital stock of 
 the company so soon as, but nol l)efore, the capital was all allotted and paid 
 up. The j.lainliffs, execution creditors of the comiiany, whose writ had been 
 returned unsatisfied, intented proceedings by way of scire facias against the 
 defendant as holder of shares of the new increased ca])ital stock. 
 
 Held, revcising judgment of the Court below, that the by-law passed by 
 the company being ultra vires, the allege<l shares of the defendant had not 
 any existence in law, and therefore that the plaiutilfs failed to establish th.al 
 the defendant was a shareholder within the .Statute, and consequently they 
 were nol entitled to recover. Page el al. v. Austin, 7 O. A, R. I. 
 (2) Sec. 37. 
 
 I 
 
 1 
 
 L 
 
Okganization and Management ok Rv. Companies. 15 
 
 
 
 oa c 
 
 !. share hold by him, (1) upon wliich all calls or a'r.ovmts due 
 
 or 
 
 on the stock have been paid up, (2) and at least ten per cent. 
 
 must be p;iid uj) to (pialify him. (3) Shareholders may, as in 
 
 other corporations, vote, not only in person but by proxy— that 
 
 ii-, by an authority or power of attorney given in the form or to 
 
 the effect prescribed by the Act to any other jjcrson to vole for 
 
 him at any meeting of the shareholders. (4) The Act does not 
 
 require, as in the case of most corporations and as required by 
 
 some special Acts, that the i)erson representing the shareholder 
 
 should himself be a shareholder. 
 
 14. As to who may hold stock in a railway company, all ^^''"'"^y . 
 
 , , • • • I 1 1 - A "'^''' stock in 
 
 mdividuals of course may do so, and it is provided by tne Act^ lailvay 
 
 that municipal corporations, provided they arc empowered to c"»iP'''ny- 
 
 do so by the laws of their Province, may also hold stock. (5) 
 
 Under the statutory law of this country, corporations and 
 
 joint stock companies, generally, cannot hold stock in a rail- 
 
 w;iy ('()m])any, unless specially authorized to do so by their 
 
 cliiiiter ; (6) nor can any railway company, with certain named 
 
 (1) Where .111 L'lcclion of iliioolors in a joint stock company was clearly 
 illci;"!. the voters havini; been ahowed only one vote, whereas each siiare 
 bhoulii have piven a vole, hut the ))atties hail fur more th.m eit^hl months di.-i- 
 thniye<l the (liitle-. the Court iefii--e(l to interfere by iiiiiinldiniis fur anew 
 eleiticn. 
 
 Qiiaif, whether iiuaniainiif or ijiio warranto would be tlie jjroper remedy. 
 Mooicr. I'oit liruce H;','.boin Co., 14 U. C. i). li. 365. 
 
 In d..terniiniiit^ an applicnticjn of a sliareholder for an injunction, the Court 
 will hick to the circunistanci s cjf the caw, and adopt the course which is most 
 to the advantage of the whole body of shareholders. So where a shareholder 
 asked for an interim order to restrain ))erson< from voting on certain shares, and 
 it .nppcnred that the shares had been held by the defendants fur more than a 
 year, the injunction was refused, more especially so as the petitioner had a 
 \(imi:A\ \iy i/iiP warranto if he wore \\T(Mif;cd by an illei^al vote. Oilman?', 
 Kol.ertson el <ii. 7 I,. N, 60, 
 
 (2) Sec, 43. (3) Sec. 5G, 
 (4) .Sec. 44. 
 
 Ti.e powerF of .-iltorney in the hands of the sliareholders wcie deposited 
 hefi le tile meetint; with the secretary, who vcrilicd iheni and L;ranted certifi- 
 cates. Held sufficient without verification of \i oxics durin;; the meetinfr. 
 Ciilman r. Robertson and Koynl (.Canadian Ins. Co., M, I,, R.. I S. ('. 5, 
 
 (,S) Sec. 3<S. — The obligation of a municipality to issue debentures in iiaymcnt 
 of a ^l■:bscrlptionofsharcsisnol to be regarded as equivalent to a mere oblii^'ntion 
 to jiay money ; in which case, by C. C, 1077, the damage resulting from delay 
 would consist only of inteiest !"roni the day of default. La Corp de la Cie' 
 d'Ottawn r. The Q. M. O. &. O. Ry.Co., 26 L. C.J, 14S, S. C; M. I-, R., i 
 (J I!. 46; confirmed in Supreme Court, 14S.C. K. 193. 
 
 (6; Tlie Companies Act, 1886, 2 R. S. C, cli. 119, sec. 93. 
 
i6 
 
 The Railway Lvw ok Canada, 
 
 exceptions, purchase its own stock or acquire of the stock, bonds 
 or securities of any other railway company in Canada, unless 
 specially authorized to do so by its special Act. (i) And the 
 direclora are subject to heavy penalties for knowingly permitting 
 the funds of the company to be applied in violation of this pro- 
 hibition. (2) 
 
 Corporate Meetings. 
 Anniwl meet- jp- ^j-]^^, ^ ^ provides for an annual meeting for the election 
 ciai meetings, of directors and the transaction of general business, also special 
 meetings to be called by the directors, or upon their failure for 
 21 days after request to do so, by shareholders representing at 
 least one-fourth iri value of the subscribed sti ck. (3) And all 
 general meetings, whether annual or special, shall be held ai the 
 head office of the company. (4) Four weeks notice is n.'([uircd 
 to be given of all meetings by advertisements published weekly 
 in the Canada Gazette and a local newspaper. ('5) 
 
 No special meeting can enter upon any business not set forth 
 in the notice upon which it is convened. (^6) At annual meeti.igs 
 any business incident to the u..dertaking may be transacted, 
 provided it is not such business as is required by the Act or the 
 conijiany's charter to be transacted at asjjecial meeting. (7) 
 
 IG. By sectifui 45, it is enacted that all mailers or things 
 proposed or considered at nny meeting ot the shareholders shall 
 be determined by the majority of votes and proxies then present 
 and given ; and all decisions and acts of any such majority 
 bind the cOiUpany and are deemed the decisions and acts of the 
 company. Also by section 54, the acts of the majority of a. 
 
 Proof of pio 
 ceeilings .nt 
 meetuiiis. 
 
 (l) Sec. 276, i^ee Ross-'. I'iset. S Q. L. R 251. (2) Sec. 277. 
 
 (3) Tie c.illing of all annunl meeting of a laihvay company is not a iluty 
 specially apin-ilaining to tlie office of p|■e^i^lent, Tlie Raihvay Act, 42 Vic , 
 cap. 9, making it the duty o( tlie cliiectois to call such meeting to be held ; 
 and Held, tiiat when diiectois neglect or omit to iieiform such duty of calling 
 tlie meeting, I'le condemnalicjn under C. C. P. 125, for failure to comply, 
 will lie agiiins; the cor|ioration and not against the directors personallv. 
 Hatton t'.'M. T. ,;c li. Ry. Co., M. I.. R., i -S, C. 69(1884). 
 
 (4) Sec. 40. (5) Sec. 41. Milot r'. I'eirault, 12 Q. L. R. 193. 
 
 (6) An individual shareholder in a railway comjjany will noi be entitled 
 to an injunction forbidding a special meeting of the company for the purpose 
 of sanctioning a lease of the road to another railway, until a meeting has been 
 called at which i^ie accounts of the eom|iany have been submitted, unlo vs 
 fraud by the m.ijority, or corrupt influence have been proved, (Angus :■. M. 
 P. & H. Ry. Co., 2 L. N. 203, 23 L. C. J. 161 (1S78). 
 
 (7) Sec. 42. 
 
m 
 
 Organization AND Management OF Ry. Companies. 17 
 
 quorum of directors are binding, (i) The power of a majuriiy 
 of the shareholders of a company incorporated by Act of Parlia- 
 ment is limited only by that act, unless the powers of the major- 
 ity are specially restricted in some other way. (2) By section 212. 
 copies of minutes of proceedings and resolutions at any such meet- 
 ings shall be evidence of such proceedings and resolutions in any 
 court, when certified to by the secretary as being true copies 
 extracted from the minute book. (3) 
 
 17. It is well settled that when a board of directors of a cor- l'ie>"mptions. 
 poraiion, formed for pecuniary profit, orders an act to be done, 
 
 and the act is subsequently performed, its legality cannot after- 
 wards be questioned by any stockholder or director, on account 
 of the irregularity of the meeting, if he made no objection at the 
 time, or afterwards when he had an opportunity to do so. (4) 
 
 18. The Court is very reluctant to interfere with the Holding Inierference 
 of meetings of shareholders, especially when ; hey are called for " ^""'t- 
 tl>e purpose of investigating and controlling the conduct of the 
 managing body ; and the Court will not interfere to restrain such 
 
 a meeting simply because the notice convening it is badly framed, 
 and invites the meeting infer alia to i^ass resolutions which 
 would be invalid if passed ; for the meeting might take some 
 other legal course, e.g., pass some amended resolution which 
 would be valid. (5) 
 
 11). Apart from the business which is required, by The Railway Special am! 
 Act or the special Act, to be transacted at a special meeting, one .i;'-'"<-''''il ""^et- 
 and the same meeting may be both general and special : general " 
 for the purpose of transacting the usual business of the company, 
 and special for the transaction of some particular business, of 
 which special notice may have been given. (6) 
 
 (i) Where the quoium of directors of a railway company was fixed at three, 
 by a special statutory provision, and tlie company was subsequently amalgnma- 
 ted with another company, and it was provided by tlie Act of amalganiaiion that 
 the board of directors of the amalgamated company should not be less than five 
 nor more than seven directors (without expressly changing or regulating the 
 quorum), the original provision making three directors a quorum continued in 
 force. Fairbanksu. O'Halloran, M. L. R., 4 Q. B. 163 (:88S). 
 
 (2) Lindley Comp. 315. 
 
 3) As to proof of calls, see page 64 infra , Mote 7. 
 
 4) Wood Railway Law, 341. 
 
 (5; Lindley Comp. 304. See also Angus v. M. P. & 15. Ry. Co., 2 L. X. 
 203 ; 23 L. C. J. 161 (1878) ; Oilman v. Robertson et al., 7 L.N. Go ; page 
 l^sufia; iMurphy y. La Cie.,etc,, 16 L.C.R. 300. 
 
 (6) Lindley Comp. 308. 
 
i8 
 
 The Railway Law of Canada. 
 
 Adjounici 
 meelini;. 
 
 liT(.'i;iil;ir 
 iiKL'liiiiJ^. 
 
 Klociinn (if. 
 
 30. It is ;i general rule that corporate meetings may be ad- 
 journed ; and if a corporate me'Jting is regularly called, any busi- 
 ness that might have been lawfully transacted at the original 
 meeting may also be done at the adjourned meeting. But no 
 ot.er l)usiness can legally be done at an adjourned meeting with- 
 out special notice, (i) 
 
 3i. When by the general or special Act provision is made for 
 the holding of annual meetings at a particular time, as the first 
 Monday in January, etc., it is treated as directory merely; and if 
 heldat any another lime, although irregular, it does not render the 
 elections void, and the directors elected at such meeting can 
 bind the corporation by their acts. (2) 
 
 If votes aie cast for a candidate who is ineligible for the office 
 of director, they will not be thrown away, so as to elect a can- 
 didate having a minority of votes, unless tiie electors casting such 
 votes had knowledge of the fact on which the disqualification of 
 the candidate for wiiom they voted rested, and also knew that 
 the latter was for that reason disabled by law from holding the 
 office. (3) 
 
 Directors. 
 
 *^*/i. .Section 36 provides for the first election of directors ; sec- 
 tion 46, for the annual election. A day is mentioned in the spe- 
 cial Act, for the election of directors ; but if such election is not 
 held on the day appointed therefor, the directors shall cause 
 such election to be held at a special meeting duly called for that 
 purpose, within as short a delay as possible after the day so ap- 
 pointed. (4) No person shall vote on such subsequent day except 
 those who would have been entitled to vote if the meeting had 
 been held on the day when it should have been held. (5) 
 
 When the annual meeting did not take place on the day ap- 
 
 (1) Wood Railway Law ■^41, and note 6 Lindley Comp. 341 . 
 
 (2) Wood Railway I>aw 349. 
 
 (3) '■^eg- f ■ Coaks, 3 E. iS- 15. 248 ; Regina n. Tewkesbuiy, L. R , 3 Q, Fi. 
 628; Drinkwater v- Deakin, L.R.,9 C.P. 626; Etherington t'. Wilson, 
 L.R., 20 Eq. 606. (4) Sec. 46. 
 
 (5) Sec. 47. The Court of Chancery h.is jurisdiction to set aside an election of 
 directors by persons who are subscril)ers nominally and not honafide. David- 
 son 1) Grange, 4 Grant's Chy. 377. 
 
 A suit to set aside an election of directors of a corporation, on the alleged 
 ground of fraud, may be brought by some of the shareholders on behalf of all, 
 and need not be in the name of the corporation itself. lb. 
 
Organizatidn anu Management ok Ry. Companies. 19 
 
 5)ointed, in conseciuence of an injunction suspending tlie liolding 
 of such meeting, tiie i'Munction being subsequently dissolved, it 
 was held, that service of notice upon the president and secretary 
 that the injunction had been dissolved, together with a copy of the 
 judgment dissolving the injunction, was sufficient to put the com- 
 pany into default to call the meeting, and a mandamus might issue 
 in the name of a shareholder under article 1022 of the Quebec 
 Code of Civil Procedure to compel the company to call the 
 meeting, (i) 
 
 I2;5. A i)erson who is ineligible to the office of director, orDe facto 
 whose elcciion was irregular, cannot be a director dcjurc, yet ''''■'^^'^'"''■'^• 
 he does by his election become a director dc facto, if he enters 
 upon the discharge of his duties. Persons dealing with direc- 
 tors irregularly elected, without notice of irregularity, and in 
 good faith, are entitled lO treat them as the agents of the com- 
 pany, and to hold the company bound by their acts, as if they 
 were duly appointed directors. (2) But as between such direc- 
 tors and tl e shareholoers, the irregularity is of greater impor- 
 tance, and it has bten held that persons dcfcicto, but not de Jure, 
 directors cannot all n shares, make valid calls or forfeit shares. (3) 
 
 24. No jierson shall be a director unless he is a shareholder Qualificition. 
 owning twenty shares of stock absolutely in his own right, and 
 has paid all calls due thereon, and is qualified to vote for direc- 
 tors a' the election at which he is chosen. (4) 
 
 It was held in an Knglisii case where the qualification shares 
 were to be held by the directors in their own right, that benefi- 
 cial ownershij) was not necessary for such qualification, as where 
 the shares were mortgaged. (5J But the emphatic word *' a/)SO' 
 lutcly " used in the above section would seem to exclude an 
 interpretation in the sense of this case under our Act. 
 
 In addition to the directors elected by the shareholders, the 
 mayor, reeve, or chief officer, etc., of any municipal corporation, 
 liolding $20,000 of stock in the company, is ex officio a director, 
 unless special provision for the representation of such corpora- 
 tion is made by special Act. (6) 
 
 (1) Hatton D.Montreal, Torlland & Boston Ry. Co.,M. L. R., i S.C. 69, 
 
 (2) Lindley Comp. 300. (3) Ibid. (4) Sec. 49. 
 
 (5) Tulbrook y. Richmond Consol. Mining Co., 9 Ch. I). 610. 
 
 (6) Sec. 38 ; vide also R. S. Q. 5138, and Appendix, sec. 38. 
 
20 
 
 The Railway Law ok Canada. 
 
 Vacancies. 25. In case of death, absence or resignalion of any of the 
 
 directors; otiiers may, unless otherwise prescribed by the by- 
 laws, be appointed in their stead by the surviving directors ; but 
 if such appointment is not made, such death, absence or resig- 
 nation shall not invalidate the acts of the remaining directors. 
 
 (0 
 
 A director who becomes bankrupt or ceases to attend to his 
 duties dees not thereby necessarily vacate his office. (2) But if 
 the number of continuing members is less tliaii a quorum, which 
 section 53 renders requisite for the transaction of any business, 
 they cannot fill up a vacancy, which must remain until the next 
 annual meeting, (^) as provided by section 40. Tlie by-laws may, 
 however, prescribe the manner in wliicli vacancies in the direc- 
 torate sliall be filled, but the by-laws will have no force until 
 sanctioned by the Governor-in Council. (4) The directors ap- 
 pointed remain in office till the next ensuing election. (5) 
 Piesiiknt. 3G. The directors shall, at their first or at some other meet- 
 
 ing after the election, elect one of their members to be president 
 of the company, who shall always, when present, be the chairman 
 of and preside at ail meetings of the directors, and shall hold his 
 office until he ceases to be a director, or until another president 
 has been elected in his stead ; and they may, in like manner, 
 elect a vice-president, who shall act as chairman in the absence 
 of the president. (6) 
 
 Without special authority the president possesses such powers 
 as, by usage and necessity, are incident to his office and the 
 usual course of business. (7) Section 60 of The Railway Act 
 enumerates some of his powers, such as the signmg of notes, 
 bills and debentures, and other instruments, and the performing 
 of all acts which, by the regulations and by-laws of the company, 
 or by the s])ecial Act, are required to be signed, [jerformed 
 and done by the president. In the case of his absence, these 
 
 (1) Sec. 51. 
 
 (2) Phelps r. I.yle, 10 A. & E. 113; nnc' see Wilson v. Wilson, 6 Scott 
 540. 
 
 (3) Newhaven Local Board i\ Newliaven School IJoard, 30 Ch. D. 350. 
 
 (4) Sees. 48 & 217. (5) Sec. 50. 
 
 (6) Sec. 52. 
 
 (7) See Hauon v. M. T. & li. Ry. Co., M. L- R., i S. C. 69. 
 
Organmzatiov and Managemknt of Rv. Companies. 21 
 
 acis can be performed by the vice-president, (i) But unless 
 the charier, by-laws, or the board of directors, by resolution, con- 
 fer such authority upon him, he has, as president, no more 
 auiliority to bind the corporation by contracts than any other 
 director has. (2) Where the president or other officer of a 
 corporation assumes to do certain acts for it, for which there is 
 no express authority, if the corporation ratifies such acts either 
 expressly or impliedly, and tliey are within tlie scope of its 
 authority, it is bound thereby. (3) 
 
 *^T. When directors have stated meetings, either by virtue of Meitiu^s of 
 the charter, by-laws or resolution of the Board — as on the fit'st ^gj'j!:|."'^f 
 Monday in each month, etc., no notice of such meetings is re- 
 
 (i) Sec. 60. 
 
 (2) WixHl Rys.,436. 437. 
 
 The president, or other principal ofTieer of a c jrpoi'ation, taking; a 
 mortgage for and in the name of the corporation, does not act as its aj^ent, liut 
 as principal in the exercise of its corporate power, and may therelbre make 
 the aft"idavit oi I'oita files under C. S. U. C, cap. 45, without authority in 
 >\ rilinf,'. liank of Toronto c. McOougall, 15 U. C. C. I'. 475; and see MacMur- 
 rick V. Homl Head Harbour Co.,9 U. C. (). li. 333. 
 
 (;) Sa wii'^re J. 11.15., a director of def-'ndant's company, personally 
 owned a vessel, '• The United limpire," valued by him at $150,000, and wa.s 
 po'i'-essed of a majority of the shares of the company, some of which he had 
 ns-^ii^ned to olhersofliio defendants in such numl.jrs as qualified them for the 
 ]io.itionof directors of the company. Upon a proposed sale and jmrchase by 
 thecomjiany of the vessel, the board of directors, including J. 11. 15., adopted 
 rosiJiution approving of the purchase ; and subsequently at a general meeting 
 of the shareholders, including J. II. L>., and those to whom he liad transferred 
 jioi lions <if his slock, a like resolution was passed, the plaintil'f alone dissenting ; 
 it was IIeld> reversing the decision of the Ontario Court of Appeals (11 Ont. 
 A . R. 205), tliat such by law was illegal, and co ild not be ratified by a resolu- 
 tion of the sharelioldeis of the conpaiiy at a meeting sub-iequeiitly called for 
 the purpose of such ratification, whicii resolution was passed l»y a small major- 
 ity obtained liy the votes of the interested director. The N. \V. Transportation 
 Co. 11. Heatty, 12 S.C. K. 598. I5ut in the I'rivy Council it was iield that 
 where a voidable contract, fiir in its termsand within the powers of the com- 
 pany, had been entered into by one of the directors with one of their number 
 as ^ole vendor, such director was entitled to exercise his voting jiower as a f 
 
 shareholder in gneial meeting to ratify such contract. I lis doing so could 
 not be deemed oppressive by reason of his individually possessing a majority 
 of votes acquired in a manner authorized by the constitution of the coiii|)any. 
 The N. W. Transportation Co «. ISeaity, 12 App. Cas. 58^. 
 
 The head of a corporation may bind the corporation l)y any contract Irom 
 which it may derive a Ijenefit. Royal Instn. for Adv. of Learning i\ IJesriviferes, 
 Stuart's Rep. 224, K. J5. 
 
 Where a corporation has a knowledge of an act of its president and secre- 
 tary which they h.ad not sufficient authority to transact, and it does not repu 
 <li;ne such act, the corporation will be bound by it. Soci^t^ de Constr. d'H. 
 7'. .Soc. de Const. Metropolitaine, 4 Dorion Q. 15. Rep. 199. 
 
 .See also Jones v. E. T. Mut. Ins. Co., M. L. R., 3 S.C. 413 ; 1 1 L. N. 132. 
 
22 
 
 The Railway Law of Canada. 
 
 ■ii! 
 
 Voliii" 
 
 Disability of 
 officers, Con- 
 tractors and 
 sureties. 
 
 i 
 
 if 
 
 quired, as they are all bound to take notice of the time and place 
 of the j-.olding thereof in the mode piovided by the Act. (i) 
 
 38. Kath director has but one vote excepting the chairman, 
 who in case of an equal division has a casting vote. (2) 
 Directors .Mib- 29. 'I'he directors are subject to ihe examination and control 
 i"lders^ a n'c r °^ ^^^^ shareholders at iheir annual meetings, anrl are also 
 bylaws. subject to all by-laws of the company, and to the orders and 
 
 directions from time to time made or given at the annual or spe- 
 cial meetings, but such orders and directions must not be contrary 
 to any express directions or provisions of the general or of the 
 special Act. (3) 
 
 30. No person who holds any office, [ilace or employmeiu 
 in, or who is concerned or interested in any contract under or 
 with the com])any, or is surety for any contractor, is caj^ablc 
 of being chosen a director, or of holding the office of director; 
 nor may any person who is a director of tiie company entti- 
 into or be directly or indirectly, for his own use and benefit, 
 interested in any contract with the company, other than a contract 
 which relates to the purchase of land necessary for the railwa) , 
 or be or become a partner of or surety for any contractor with 
 the company. (,\) 
 
 A. had been appointed secretary at a salary, and whilst sec- 
 retary he was elected a director, and appointed uj.on a com- 
 mittee to exercise certain powers of the directors ; from the time 
 of his election lie received salary as a commitiee man, but ceased 
 to receive salary as secretary, though he continued to perform all 
 the duties of the office. It was held that A. did not hold an 
 ojice un lt the com])any, so as to disqualify him from being party 
 as a director to the making of a call. (5) 
 
 With regard to the nature of the contracts which disqualify 
 a person interested in them from being a director, it has been 
 held that they must be contracts made with the company in the 
 prosecution of its undertaking, and that there is nothing to pre- 
 vent a banker of a company from being one of its directors, (6) 
 
 (1) Warner y. Mower, II Vt. 385; Smith v. Darley, 2 H. L. Cas. 789. 
 Jh re Bnt. Sugar Kef. Co., 3 K. & J. 408. 
 
 (2) Sec. 55 ; as to quorum, see supia p. 20. 
 
 (3) Sec. 50. (4) Sec. 57. 
 
 (5) Iron Ship Coating Co. v. Blunt, L. R., 3 C. P. 485. 
 
 (6) Lindley Comp. 328; Sheffield & Manchester Ry. Co. v. Woodcock, 
 7 M. & W. 574; and see Regina 0. Gasharth, 5 Q. 15. D. 321. 
 
 
 ■■;$ 
 
ace 
 
 Organization and Managemkni- ov Ry. L'ompanif.s. 23 
 
 It has not yet been decided, when there is no express power 
 granted tlie shareholders in the general or special Act to remove 
 directors, whether there is an implied power to do so by resolu- 
 tion duly passed at a meeting properly convened for the pur 
 pose; but the better opinion seems to be that there is. (i) It has 
 been held, liowevcr, that if a director is appointed for a dclinite 
 period, he cannot be removed before that period has expired, 
 without some special provision in the charter or by-laws. (2) 
 Where the shareholders have power to remove a director for 
 " any reasonable cause," the shareholders are themselves the 
 judges as to what is, and what is not, a reasonable cause for re- 
 moval ; and their decision will not be interfered with if they act 
 fairly and in good faith. (3) Jhit when there had been a meet- 
 ing where some who were not legally directors were present, and 
 some who were legally directors were excluded, the Court inter- 
 fered only to the extent of deciding that it was not a meeting 
 which could discharge the duties of a board. (4) 
 
 iJl. The directors are required by section 5S ot the Act to Powers of 
 make by-laws for the stock, property, business and affixirs of the ''''"'°'^'^" 
 company, and for the appointment of all officers and servants. 
 
 Where the managing director of a railway company had 
 issued a large luiniber of debentures to other directors at a dis- 
 count of 25 per cent., in satisfaction of their claims against tiie 
 company, the plaintiffs, wlio had subsequently obtained deben- 
 tures of the saiue class, contended that the saitl directors could 
 only claim the amount actually advanced by them, and that they 
 could not, as directors, sell the debentures to themselves at a 
 discount ; it was held that inasmuch, as the company did not 
 complain of the transaction, nor any shareholders, and inasmuch 
 as the transaction was not ////ra vires, it was not competent for 
 the holders of the debentures, such as the plaintiff, were, to im- 
 pugn the position of the said directors. (5) Where the directors 
 
 (1) Lindley Conip. 302. 
 
 (2) Lindley Comp. 302. Imperiiil Hydropathic Hotel Co. w. Hampson, 
 23Ch. U. I. 
 
 (3) Inderwick «. Snell,2 McN. & G. 216. 
 
 (4) Harden v. Philipps, 23 Ch. D. 14. 
 
 (5) Bank of Toronto 0. Cobourg, etc., Ry.Co., 10 Out. R. 376. Sec Cam 
 bell's case, 4 Ch. D. 470. 
 
•« 
 :% 
 
 24 
 
 '1'hk Railway I,\\v ok Canada. 
 
 if 
 
 of a company al)use their position so as to get an advantage at 
 the expense of the company, it is for the corporation or its cor- 
 porators to complain, (i) J5iit it has been iield tlial a stockholder 
 can bring an action of account against a corporation, and lliereby 
 contest the validity of a bylaw made by its board of directors. 
 (2) The by-laws of a mutual insurance company gave the 
 president the management of its concerns and funds, with power 
 to act in his own discretion and judgment, in the absence of 
 special directions from the directors ; and it was also his duty to 
 sign all notes authorized by the board or by virtue of tlie by- 
 laws ; and was also to act as secretary. Held, liiat the plaintiff, 
 who was the transferee for value given before maturity of a note 
 signed on behalf of the company, by the president as |)resident 
 and treasurer, and given to the payee in settlement of a valid 
 ( iaim against the company, was entitled to recover the amount 
 of said note from the company. (3) 
 licii- posiiieii JJti. Directors are not only agents, but loa certain extent irus- 
 ices. (.f) It is their duty so to conduct tiie business of the com|)any 
 as to obtain for the benefit ot the siiareholders the greatest bene- 
 lits that can be obtained consistently with the trust reposed in ihem 
 by the shareholders, and with honesty to other ])c-oj)le. (5) 'I'hey 
 are bound to aceouni to the company tor all profits made by them- 
 selves, by their employment of the assets of the comjiany, and for 
 all profits made by them at the expense of the company, unless 
 they can show that the company, with a full knowie Igc of the 
 facts, h is agreed to allow them to retain such profits for their 
 t)wn benefit. (6) 
 
 151$. Directors are responsible for the loss of the company's 
 assets, if that loss is attributable to the employment of the assets 
 in a manner and for purposes not warranted by the ('OMsiIiution 
 
 •IS trustees. 
 
 laahiliiv "f. 
 
 (1) ll.id. 
 
 (2) Keys w. Quel>ec Fiie Ins. (Jo., Suiart's Rc)i., 425 K. H. 
 
 (3) Jones V. V..'V. Miitiml Ins. Co., M, L. R., 3 S.C. 413 ; ill.. \. 132. 
 
 (4) Faurc Electric Accumulator Co., 40 Cliy. D. 141 ; Kay, J. 
 
 (5) Lindley Comp. 364; and see Faure Electric Accumulator Co,, 40 Ch. 
 D. 141 ; York & Midland Ry. Co. i-. Hudson, 16 13eav. 485 ; Great Luxem- 
 bouig Ry. Co. V. Magnan, 25 Beav. 586. 
 
 (6) Lindley Comp. 365 ; see also 16 Beav. 485 sn/ira ; Parker v. Mc- 
 Kenna. 10 L. R. Ch. 96 ; Gaskell c. Chambers, 26 Beav. 360. 
 
 
 ■I 
 
 4 
 
 M 
 
OkGANI/ATI )N AND MANAGEMENT OK Ry. COMPANIES. 25 
 
 ;it 
 lor- 
 It-r 
 by 
 rs. 
 the 
 Wer 
 of 
 to 
 by- 
 tiff, 
 lote 
 lent 
 alid 
 
 )UIlt 
 
 of the company, (i) Generally sjjeaking, direriors have a wide 
 di-'cretion ;aiid although in the absence of iiroof oi tnaia fides, it 
 ni.iy be difficnU to establish a case of culpable negligence, or 
 wilful default, yel if such a case be proveii, an<l loss liy the com- 
 pany attributable thereto be also jtroved, the directors will be 
 liable to make good such loss. (2) 
 
 Hut directors are not liable for errors of judgment or honest 
 mistakes, when acting witiiin their powers. (3) so much so that 
 tliey have Ixcn held not liable for losses occasioned by i>urchas- 
 ing a business which they knew to be insolvent at the time of the 
 purchase. (4) 
 
 Directors must, however, attend to their duties, and not place 
 uiidue reliance on other servants of the company. (5) 
 
 IJ4. Directors who are actually implicateil in misapi)lying the I.iiiliility of 
 cdinpany's money are jointly antl severally liable for the 'o^ses^j"''^^|'^"J 
 arising therefrom, and to entail such liability it is not always 
 necessary thai they should have taken an active part in such mis- 
 aiiplicalion. {(>) 
 
 As to how fir thj knowled;4e of his co-directors is the knowledge 
 of a director, so as to render him liable for a breach of trust, is a 
 (juestion ilial can scarcely bj considered as settled. (7) Mere 
 constructive notice, however, is not enough 10 impose liability. (8) 
 
 35. 1 )ir( cto;s of comp mies aregeneially allowed comi)en>a- Compensation 
 lidii for their time and attention to the cnnipany's business by °'"' 
 express agreement; but where there is no such agreement, they 
 cannot, without tha sanctif)n of the slnreholders, charge the 
 (■(impany anything for their services, (9) 
 
 (I) St-e i.and Ciedii Co. of Iix-laiid r. \.'>v 
 
 .'inoy, 
 
 L 
 
 S Va 
 
 V 7; 
 
 lis 
 
 L's r. Iluiiisdn, 2') lieav. 455 ; /// ;v. N.it. Fuiuis Assur. Co., 10 CI1. 1). 
 Fliiclicidfi's case, 21 Cli. D. 519; /n re. Denlmni iS: C).. 25 Cli. 1). 
 
 75.2 ; L»L\ls I'Aiale etc. Co v. .Slif])Iienl. 36 Ch. D. 787 
 
 (2) LiiullL-v ( 
 
 ■2; t hariti>l)Ii' Corp. c. .Sutton, 2 .^ik. 400; Ovi-r- 
 
 end.G unL-y & Co. r. Gihl), L. k., 5 H. L. 480 ; Kvans v. Coventry, 2 fii 
 K..S. 5;y ; 'l'iii(|iiand r. Marshall, 4 Ch. 376. 
 
 (• (3) London Financial Associ.uion c. Kelk, 26 Ch. D. 107 and 144. 
 r4) Uveiend, Cmney ^t Co. r. Gilil), L. R., 5 II. !,. 4S0 ; and see Par- 
 
 lier r. Lewis, 8 Ch. iq-!!; 
 
 35, as to compiomisuifi claims 
 
 (5) Leeds LstateCo.c. .Shepherd, 56 Ch. 1). 787. 
 
 ('()) Land Credit Co. r. Loid Fernoy, L. R., 8 liq. 7 ; L. K., 5 Ch. 763. 
 
 (7) Joint Stock Discount Co v Urown, L R., S Eq. 381 ; Ashurst ?'. Mason, 
 L.K , 20 Fq. 225 ; Land Credit Co. y. Lord Fernoy, 8 F.q. 7; Turquand 
 r. Marshall, 4 Ch. 385. 
 
 (S) Hallmark's case, 9 Ch. D. 329, 
 
 (9) Dunstan i\ Imperial Gas Co., 3 U. & Ad. 125; LindleyCr 
 
 ;8S. 
 
"^ 
 
 it 
 
 16 
 
 'I'liK Kailwav I, aw ok Canada. 
 
 Liability fn 
 leporls (if 
 (llrect'M's. 
 
 liii. Section 62 provides liial directors shall c.uiscamiiial slnfc- 
 iiuiils to l)c prcparL-ii, showing monies received by the ('ompany or 
 by tile directors or managers, lor the use of the com|)any, and all 
 charges and expenses attending the erecting, making, supporting, 
 maintaining and carrying on of the imdertaking and all other 
 receipts and ex|)enditiires of liie company or ilie directors. 
 
 'I'he reports made and accounts rendered i)y tlie directors in 
 the course of their duty, tliough made and issued to the share- 
 holders only, as to tlie state of the affairs of the company, are 
 considered the representations of the com|)any, not only to the 
 shareholders, but to the i)ublic. if tiiey are pu!)lished and circu- 
 lated by the aiiliiority of tiie directors or a general meeting, (i) 
 
 Directors of a company are personally liable for injury 
 caused to third parties by the f.iise lepresentatioiis contnintd in 
 a report of the directors to the sliareholders ; but the injury 
 must i)e the immediate and nf)t the remote consequence of the 
 representation, and it must appear that the false representation 
 was made with the intent that it should be acted upon by siitli 
 tliird person. (2) A shareholder cannot claim damages against 
 directors for having been induced to purcliase shares, by mis- 
 representation, if he has continued to hold them witiiout objec- 
 tion long afier he had knowledge, or full means of knowledge, of 
 the untruth of the representations on which he bought them. (3) 
 
 Olli^'crs and » «' »t9. 
 
 General man- liTl. Where the jiowcrs an niesofa genera, manager or 
 agernr super- j-^jp^.^ j,jjg,^jjgj^^ ,^j.g j^^^j defined, 1,1 auth' itv is to be measured 
 intendent an'' ' ' • ' , , 
 
 other officers, by usage, and what he has been permu d to do by the corpo- 
 ration, and the incidents thereof. (4) if it is shown that upo'i 
 several occasions, as well before as after the act with which it is 
 sought to charge the corporation, he performed similar acts with 
 the approval of the corporation, it is sufficient to establi--ii his 
 authority to do the act in question ; and both his appoiniment 
 
 (1) Khodes .?. Starnes, 22 L.C.J. II3. 
 
 (2) 11). (3) lb. 
 
 (4) Wood Ry. Law 440. As to managing director, see Canada Central. 
 Ry. Co. V. Murray, 8 S. C. R. 314. 
 
 •ii: 
 
 l:tfi 
 
■^ 
 
 '.',B 
 
 late- 
 ly or 
 all 
 
 >«. 
 Ilhcr 
 
 OkOANIZATION AND MaNACEMKNI OK Rv. COMPANIES. 37 
 
 and authority may be inferred from his ojjen and approved acts. 
 (1) I'lic powers of a general siiperinlendeni ol a railway 
 company are necessarily extensive; and may be said generally, 
 in the absence of express liniitalion, to clothe him with autliority 
 to act fur the company in all ordinary matters connected with 
 the n)anagement and operation (>( the road, in each particular 
 his ])owers must be deternined by the facts proven, applying 
 the te^is above mentioned. (2) A tew instances may, however, 
 be given in lUiistration. (3) 
 
 In Kngland it has been held that the general n)anager or 
 superintendent of a railway iias, as incident to his emiiloyment. 
 auihority lo bind the company to pay lor surgical attendance 
 bestoweil at his recpiest upun a servant of the coinp.iiiy, injured 
 by an accident upon its railway. (4) 
 
 It is not competent for the officers of a company, in order to 
 avert a seizure of a quantity of iron rails, to sign a letter to a 
 bank making the seizuie, agreeing that the bank, out of monies 
 coming to their hands fioni certain garnishee proceedings taken 
 by tiie bank, against debtors of the company, might retain •' an 
 amount sufficient to fully cover all your solicitor's costs, charges, 
 and expenses against you, or against you and us, as between 
 attorney and client, or otherwise ; as well as the costs, charges 
 and expenses of your bank, of what nature or kind soever, and 
 after the |)ayment of such, in tiie second place, to hold the sur- 
 plus, if any, to apply on your executions against us." (5) But it 
 is comi)etent for the officers of a company to arrange that such 
 bank should proceed to garnish certain debts due the company, 
 the costs of which as between atiurney and client the railway 
 company were to pay. (6 ) The secretary and accountant have 
 no power to accept drafts on behalf of the company, and conse- 
 
 (1) Wood Ry. Law 441. 
 
 ^2^ CinaiLa Central Ky. Co. y. Murray, 8 .S. C R. 313. 
 
 (3) Unlawful acts of the managing director of a company destined to 
 bring about the ruin of a co-partnership firm do not bind the company or 
 make it responsible for damages unless approved or ratified by the com 
 pany. Bury c. Corriveau Silk Mills, M. L. K., 3 S. C. 218. 
 
 (4) Walker u. Great Western Ry. Co., L. R., 2 Exch. 228; also in 
 United States, Toledo, etc., Ry. Co. 0. Rodrigues, 47 111. 188 ; I'acific 
 R.R. Co. V. Thomas, 19 Kan. 256. 
 
 (5) Hamilton & Port Dover Ry Co. u. The Gore Bank, 20 Grant Chy. 
 190. (6) lb. 
 
28 
 
 The Railwav Law ok Canada. 
 
 II 
 
 quently the monies covered by such drafts may be legally 
 attaclied by garnisliment, nolwithstandhig such acceptance by 
 such unauthorized officers, (i) 
 
 'i''!"^^'. 38. Railway companies are lial)ie for libels i)ublished by 
 
 their general niinagers. (2) Hut where the general manager of 
 a railway dismissed a conductor, and caused i)lacards, describ- 
 ing his offence and dismissal, to be posted up in the com- 
 pany's private offices (in some of whicii they were seen by 
 strangers), and entered in the circular books of tlie conductors, 
 for the information and warning of the company's employees, 
 .'ooo in number, the communication to the employees was 
 lield to be privileged. (3) 
 
 M.insl;uii;liitr. 39. Where the company's chatter ortlie general Act obliges 
 il to i)erform some duly requisite for ihe safe working of 
 the road, and the general manager, having been warned of 
 danger whicii might arise at a certain point, promises to carry 
 out the requirements of tlie law, liut neglects to do so, whereljy 
 an accident occurs at that point, he could l)e indicted for man- 
 shiughter ; but wiiere lie promised tc» do that which was not 
 required b^" the cliarter or general Act, ;ind neglected to carry 
 out iiis ]iromise, in the e\ent of a death resulting from his negli- 
 gence, he could not be .so indicted. (4) 
 
 There can be no doubt that ;in engine driver may be indicted 
 for manslnugliier for causing the death of anyone by omitiing to 
 lake any ofilie usu.il iirccnutions in driving his engine. (5) 
 
 Couductois 40. As a conductor is invested wi;h authority to control 
 
 and employees ill ^j^^. niovements of tne train, and is bound to look out for the 
 -afely and reasonable comfort of the '^assengers, exigencies may 
 .irise, in which, by virtue of his position, he may make conUacts 
 which would be binding upcn tin; c()ri)oralion, where they 
 become indispensably necessa;-}- foi- the performance •i'hi.s 
 duties. (6) 
 
 As to the iiabilitv of raihvav comiianies tor the acts of their 
 
 (1) Ryan c M. ^S: C Kv. Co., 4 I.. C.J. 38, Q. U., iS,s9. 
 
 (2) Tench r. Great AWstcrn Ky. Co., 33 U. C. Q. J!. ,S ; Ijiuwn r. Ls Maiie, 
 etc, de Munti6il. 17 I.. C.J. ,;() ; Art. 356 c. C. 
 
 (3) Tencli !■■ Great Western Uy. Co., 33 U- C. (J. H . S. 
 
 (4) Axfiiifr G.'V [<., i:.\p.i>,'e Hrydges, iS I,. C, J. 141, <J. 1!., JS74. 
 
 (5) lb., p. 147. (6) Wood Rys. 449. 
 
 :l 
 
;ally 
 |e by 
 
 by 
 
 ter of 
 
 ciib- 
 
 [com- 
 
 P l)y 
 
 'tors, 
 
 ivees, 
 
 was 
 
 Organizaiion and Maxagemeni' ok Ry. Companiks. 29 
 
 employees, th.-re is a strong tendency, especially in the United 
 States, to re-itrict the theory ihat masters are not liable tor the 
 tortious acts of their servants done beyond the scope of their 
 authority ; and railway companies have been held liable, where 
 a conductor exacts illej^al fare from a passenger, (i) or gives a 
 passenger, who pays his fare to him, counterfeit, illegal or 
 worthless money in making change, (2) or for an assault upon 
 a ])assenger. (3) And the Quebec courts seem to hold tlie 
 same view of liie question. (4) 
 
 41. It has been held, however, by the Supreme Court (5) th.ii Staijor., 
 the act of a station agent in issuing a false and fraudulent receipt "E^"'^- 
 for goods never delivered to the company was not an act doiie 
 within the scope of his authority, and the company were, there- 
 fore, not liable for the money adv.mccd thereon. And it was 
 so held in a previous Ontario case. (6) But it has been held 
 in New York State in the case of Armour v. j]//c///gii/i Ry. Co., 
 (7) over-ruling a prior decision, that if a station agent gives a bill 
 of lading of goods befcjre they are received, the company is liable 
 for money advanced thereon. In a Maryland case, however, it 
 was held that the company might show that the agent signed 
 the bill fraudulently, and that the goods were never received by 
 it. (8) In this country, however, it may be said that the ques- 
 tion is determined by the recent statute, 52 Vic. cap. 30, which, 
 in providing for the lial)ility of the agent in such cases, would 
 appear to imiiliedly exclude the liability of the company. 
 
 In an action in trover for conversion of cattle killed in an 
 accident and sold by the station master, it was held that the 
 com[)any were not liable, the sale not being the ordinary duty 
 of the station master. (9) 
 
 The company will not be held resi)onsi!)le for freight delivered 
 
 (1) Toittr f. Xcw York Central R.R. Co., ^4 IJ.irl-). (N.Y.) le-? 
 
 (2) Conn. '• '">'"" "*- '•' '•' '■■■ ■ '"-.•".^.•-■'', . ,1. . •'■'•' 
 
 (3) 
 
 , 01 
 
 , etc., R.R. ( 
 
 I Grant's C 
 
 Kanisik'n 
 
 :^s, (l\nii.) py. 
 
 (4) Hill c. M. .S. Ry. Co., S 
 see (Iog;in c. Doiion, 2 O. \\. 
 
 r. Boston iS: .Albany R.R. Co., 104 Mas<. 117. 
 
 in Review, Montreal 30 June, l,Sgl ; and 
 
 R. 2 ;S ; Li 
 
 aviolette r. 
 
 197 ; Ciifinette v. City of Montreal, M. L 
 
 Th,: 
 
 C. f. 
 
 4 S. C. 69. 
 
 (5) Krb r. I'lie Creat Western Railway Co., 5 S. C. R. 179. 
 (0) Oliver r. The Great Western Ry. Co., 28 U. C. C. \\ l n. 
 (7) (-15 X. V. in. -'-^ 
 
 (S) ifahinuire, etc., R.R. Co. /•. Wilkens, 44 Md. II. 
 (9) O'Rorke (,-. The Great Western Ry. Co., 23 U. C. O. B. 427. 
 
The Railway Law ok Canada. 
 
 '"ire 
 
 Oji U'.icloi> 
 
 to one in tlieir employ, hut who was not their authorized agent 
 for receiving fieight. Tims in Griffin v. The Great Western Rail- 
 way Co., {\) where a witness swore tlial lie had taken tlie plain- 
 tiffs mare to the station, wlicre a man assisted iiim to put it into a 
 car, in doing which the accident iiappened, it was lieldthat there 
 was no proof of deHvcry to defendants. And in a Manit">ba 
 case, (2) plaintiff sent by another person, S., a box of uoo Is to 
 defendant's station to be carried. S. saw several men working 
 at defendant's freight shed, and told one of them he had biought 
 a box for plaintiff; the man told him "to bring it in and put it 
 there," and S. put ii where he was told. He got no receipt. The 
 box was lost. Plaintiff then went to the station at \V., and saw 
 the man already referred to, who admiited that he got the box, 
 but could not say what he had done with it ; held, that the 
 admission of the man whom plainii ff saw was not admissible as 
 evidence against the defendants, and as it was the only evidence 
 of delivery, the pi. untiff should be non-suited. (3) 
 
 Station agents must, l"i om necessity, and from the usual course 
 of business, be treated as the representatives of the corporation 
 at their res])cctive stations, in the absence of notice to the pub- 
 lic of any i^])ecial limitations upon their authority, lieing 
 authorized to receive, receipt for, and l)ill goods for shipmeni, 
 the public has a right to presume that they have authority to 
 bind tlic corporation by contracts relating thereto. 
 
 Thus an agent can by verbal contract agree to carry petroleum 
 in covered cars, with despatch, although he had jjrivate instruc- 
 tions not to do so. (4) 
 
 4!i. The principle is now well established, both in En'^land 
 and the United States, allhoug!. after a long course of conflicting 
 decisions in both countries, that the employer of a " contractor " 
 is not responsible for the negligence of the contractor or his 
 servants, where the work contracted to be done is not of itself 
 wrongful or dangerous, or there is no duty incumbent on the 
 employer to do the thing himself. (5) 
 
 f 15 U. C. y. 15. 507. (2) Young « C. P. R., I M.in. 205. 
 
 ^^ See aUo l.eigh r. Smitli, I C. & P . 638 ; Slim v. The Great Northern 
 RyT Co., 14 C. li. 647. 
 
 (4) Grand Trunk Ry. r . Fi'zgerald, 5 S. C. R. 204. 
 
 (5) Smitli on Negligence (Amer. Edit, by Whittaker, 1888), p. 171-2 ; 
 Wood, Ry. I,a\v. p. ioo8, sec. 284. 
 
 ?« 
 
 
 
Organization and Management of Ry. Companies. 31 
 
 And the rule is the same in the civil law. (i) But this rule 
 becomes difficult of application, where the employer of the con- 
 tractor interferes with or exercises control over the latter in the 
 manner of performing the work. 
 
 Where a railway acted as bankers for the contractors, and 
 ]jaid the wages of the workmen, cost of transport to the place 
 where they were engaged, etc., it was held tiiat the company were 
 the real principals. (2) Plaintiff was a servant in the employ- 
 ment of one K., a contractor with defendants for keeping their 
 road i •. repair. In performing these repairs, certain carriages and 
 engines, under the management of tiie defendant's servants, 
 were used to transport materials and convey workmen employed 
 by K. The plaintiff being one of such workmen, became a 
 passenger in one of these carriages to be carried from his place 
 of work to his residence, and in this capacity was injured by a 
 collision. Held, that defendants were liable. (3) This decision 
 would appear at first sight to be contrary to later decisions ; (4) 
 l)ut as pointed out in Graham v. Toronto, Grey & Bruce Ry, 
 Co., (5) that case differed very materially from these, for there 
 it was admitted that in prejjaring the work necessary for the 
 repairs, certain carriages and engines, under the guidance and 
 managcmentof defendant's servants, were used for the transport 
 of materials and (onveyance of the workmen employed by the 
 contractor. In the latter cases it was found that the contract 
 was to carry materials only, and not passengers, and the con- 
 ductor, in permitting the plaintiffs to get upon the train, was 
 not acting as defendant's agent. 
 
 A railway company is not responsible for damages occasioned 
 by the negli^^ence of contractors in making the road, where such 
 damage was occasioned by doing acts which they were not 
 required by their contract to do. (6) Nor for iliegnl acts of 
 contractors, such as trespass or damage upon adjoining lands. (7) 
 
 (i) Sounl.at, vol.2, No. 892 et .seq. ; Morin r. Atlantic 6t No rtli- West 
 Ky. Co., 12 I,. N. 89 ; Thibodeau v. City Pass. Ry. Co., 4 K. L. 654. 
 
 (2) Lapointe r. C. 1'. R., 7 L. N. 29. 
 
 (3) T.irpy V. The G. T. R,, 20 U. C Q. 13. 446. 
 
 (4) .Sherman v. Toronto, Grey 6t lirnce Uy. Co., .^4 U.C Q. I!. 451 j 
 Graham v. I'oronto, Grey & Bruce Ry. Co., 23 U.C. CI*. 5' I ; Cunninphara 
 0. G. T. R., -^i U. C.Q. H. 350. 
 
 (5) 23 U.C. C. P. 548. 
 
 (6) NVoodhil. y. The Great Western Ry. Co., 4 U. C C. P. 449. 
 
 (7) Eaton (> European & Northern Ry. Co., 59 Me. 520 ; 8 Rev. Rep. 430. 
 
33 
 
 The Railway Law of Canada. 
 
 It 
 
 Agents 
 generally. 
 
 In Nichol v. The Canada Southern, (i) plaintiff's fences 
 were thrown down by the defendants' contractor, and plaintilT 
 requested defendants under the statute to fence off their 
 line from his land ; tlieie thus arose in tins case a statutory duty 
 to perform it, and there could be no doubt as to the defendants' 
 liability for non performance, whatever their recourse against 
 tlie contractor might be. 
 
 Where the company, by their engineers and other ofticiaN, 
 constantly superintend, direct, and control the work while it is 
 in i)rogress, they would be responsible for all that the work- 
 men did in the course of that work, although they were not tiie 
 workmen of the comijany. (2) Where a person is authorized by 
 Act of Parliament or bound by contract to do particular work, 
 he cannot avoid responsibility by contracting with another per- 
 son to do that work. (3) The employer would not be responsi- 
 ble where a contractor was doing work dangerous if not care- 
 fully done, when he had no reason to believe the contractor 
 would not be duly careful. (4) Where the contractor does the 
 very thing he was engaged to do, and it causes an injury, the 
 emi)loyer may be made liable. (5) 
 
 43. Where persons are in fact employed by directors to transact 
 business for a company, the authority of those persons to bind a 
 company within the scope of their employment cannot be denied 
 by the company, unless : r. their employment was altogether 
 beyond the power of the directors ; or imless : 2, the persons 
 employed have been appointed irregularly. (6) But where the 
 power to appoint an agent for a given purpose exists, Irregularity 
 in its exercise is immaterial to a person dealing with him 
 bona fide, and without notice of the irregularity in his appoint- 
 ment. (7) And Maule, J., in Siiiit/i v. Hail Glass Co., (8) ex- 
 
 (1) 40 U. C. Q. H. 583. 
 
 (2) Burgess !•• C,\:\, i (.'. 15. 578 ; Seiandat c. Saisse, L. R., I P 
 Pcntllebury v. Gifenlngli, 1 (^. H. I). 36- See also Browne i". The 
 i\: ISrockville Uy. Co., 20 U. C <J. I!. 202. 
 
 (;,) Hole v. MliinghoiiMie, etc., \<y. Co., 6 II. & N. 4S8. 
 
 (4) Daniel f. llic Directois, etc. of ilie Metropolitan R. \V. Co., 
 H.L.45. 
 
 (5) LIlis V. Sheffield Gas Consumers Co., 2 K. & 15. 767. 
 
 (6) Hawkin v. Bourne, 8 M. &. W. 703 ; Lindley Conip 
 Central Ry. Co. v. Murr.ay, S S. C. R. 313. 
 
 (7) Lindley Comp. 159. (8) S C. 1!. 6C.S. 
 
 '59; 
 
 C.152; 
 Ottawa 
 
 L. R., S 
 
 Canada 
 
 1 
 
 i 
 
Organization and Management of Ry. Companies. 33, 
 
 pressed the view which has been adopted by later authorities,, 
 that a company is bound by the acts of persons who take 
 upon themselves, with the knowledge of the directors, to act 
 within the limits of their apparent authority ; and that strangers 
 dealing bona fide with such persons have a right to assume 
 that they have been duly appointed, (i) 
 
 44. A ratification, to be imputable to a company, must be Acquiescence, 
 made directly by its shareholders, or indirectly through their '■**'"<=^'i°"- 
 agents acting within the limits of their real or apparent authority ; 
 
 and in order to establish ratification by the shareholders or their 
 agents, it must be shown: i. That the parties alleged to have 
 ratified the contract knew whnt it was ; or having their attention 
 drawn to it, did not choose to inquire into it. (2) 2, That they 
 have in some way recognized and adopted it. (3) 
 
 If these two essential points are established, there will still 
 remain for consideration the question whether the recognition and 
 adoption have been in proper form. (4) 
 
 45. Since the case of Fitzherhert v. Mather, (5) it has been Notice. 
 an undoubted rule of law that notice to an agent is notice to his 
 principal ; but what shall be deemed sufficient, in the case of 
 constructive notice to a principal, in order to bind him through 
 
 his agent, has been the source of considerable litigation. 
 
 In England the rule is now that tlie knowledge of an agent is 
 the knowledge of his principal, and his principal is affected 
 thereby, whether such knowledge be acquired by the agent in the 
 course of his employment or otherwise. (6) 
 
 (i) See Lindley Comp. 160. 
 
 (2) La Banque Jacques Cartier z*. La Banqiie, etc, de Montreal, 13 App. 
 Cas. III. 
 
 (3) O'Brien i". Credit Valley Ry. Co., 25 U. C. C. P. 275 ; Baby v. Tlie 
 Great Western Ry. Co , 13 U. C Q. B. 29 ; Bury v. Corriveau Silk Mills, 
 M. L. R., 3 S. C. 21S ; Soc. de Construct. d'Hochelaga v. Soc. de Construe, 
 etc., 4 Q. B. R. 199 ; Hamilton & P. D. Ry. Co. v. The Gore Bank, 20 Chy. 
 190. 
 
 (4) Lindley Comp. p. 178. (5) i T.R. 15. 
 
 (6) Dresser -'. Norwood, 17 C.B., N.S. 466 ; and see Carter v. Mohon, 
 10 App. Cases, at pp. 68-711. 
 
 3 
 
il:: ! 
 
 CHAPTER III. 
 
 SHARES AND SHAREHOLDERS. 
 
 1. Capita/ stoci. 
 
 2. Itierease. 
 
 SUBSCRIPTION. 
 
 3. Effort incorporation and or- 
 ganization. 
 
 4. After organitation . 
 
 5. Conditional. 
 
 6. Payment in supplies, services, 
 etc. 
 
 7. Repudiation. 
 
 8. Special subscriptions . 
 
 9. Other cases. 
 
 10. Effect of statutory change . 
 
 TRANSFER. 
 
 11. .Shares maybe transferred. 
 
 12. }\'hen complete. 
 
 13. Form of. 
 
 14. Right to. 
 
 15. Liability of company for frau- 
 dulent transfer. 
 
 16. Measure of datnages for neglect 
 to transfer. 
 
 17. Afandamus to compel. 
 
 18. Transmission othertoise than 
 by transfer. 
 
 19. Company not bound to see to 
 trusts, etc. 
 
 20. Shares " in trust." 
 
 21. IVant of authority or power in 
 iiie transferor . 
 
 i Succession duty unpaid. 
 
 23. Interest on sums paid in ad- 
 7ance. 
 
 ACTIONS BY CREDITORS AGAINST 
 SHAREHOLDERS . 
 
 24. Liabtlitv of shareholders . 
 
 25. Execution against the company. 
 
 26. Cause of action in such cases. 
 
 27. //ow action against shareholder 
 should be commenced, 
 
 28. Defences. — Payment. 
 
 29. " Cessation of com- 
 
 pany. 
 
 30. Defences.— 
 
 -Non-performance oj 
 
 
 
 conditions. 
 
 31- 
 
 (( 
 
 Irregularities. 
 
 32- 
 
 (( 
 
 Shares remitted to 
 company. 
 
 33- 
 
 (( 
 
 Shares acquired as 
 paid up. 
 
 34- 
 
 (( 
 
 No notice of allot- 
 ment. 
 
 35- 
 
 (( 
 
 Never a shareholder. 
 
 36- 
 
 (( 
 
 Change of capital. 
 
 37. 
 
 <( 
 
 Difference between 
 memo, of associa- 
 tion and prospec- 
 tus. 
 
 38- 
 
 (( 
 
 Ultra vires. 
 
 39- 
 
 <( 
 
 Fraudulent misre- 
 presentations. 
 
 40. 
 
 i( 
 
 Forfeiture. 
 
 41- 
 
 << 
 
 Agency. 
 
 42. 
 
 (( 
 
 Transfer. 
 
 43 • 
 
 >( 
 
 (( 
 
 44. 
 
 tc 
 
 Defective service. 
 
 45- 
 
 *( 
 
 No contract. 
 
 46. 
 
 l( 
 
 Set-off. 
 
 CALLS. 
 
 47- 
 
 Directors 
 
 may make. 
 
 48. 
 
 Notices. 
 
 
 49- 
 
 Payment 
 
 
 SO. 
 
 Payment 
 
 by note. 
 
 51- 
 
 Forfeiiut 
 
 V for non-payment of 
 
 calls. 
 
 UNISSUED SHARES. 
 
 52. Sale of. 
 
 PAID UP STOCK. 
 
 53. Issue of. 
 
 DIVIDENDS AND INTEREST. 
 
 54. Dividends. 
 
 55. Net profits, what are. 
 
 56. Liability of directors for pay- 
 ment of dividends out of capital. 
 
 57. Preference shares. 
 
 •B 
 
 i 
 
 I 
 
 ■ 'A 
 
Shares and Shareholders. 
 
 35 
 
 eoj 
 
 r to 
 
 i as 
 
 'llot- 
 
 Ider. 
 'al. 
 
 ween 
 ocia- 
 ispec- 
 
 nisre- 
 
 I 
 
 ent of 
 
 1. The stock of the company is declared by sec. 75 of the Act Capital stock, 
 to be personal property ; and is subscribed for in the first instance 
 upon the books of the company opened for that purpose by the 
 l)rovisional directors under the provisions of sec. ^z. The 
 amount of the capital stock is fixed by the special Act, and 
 must be divided into shares of $100 each, (i) 
 
 *i. The original capital stock may be increased from time to Increase, 
 time, to any amount, by vote of the holders of two-thirds in value 
 of the subscribed stock, at a meeting expressly called by the 
 directors for that purpose after 20 days special notice in writing 
 to each shareholder. The increase issubject to the approval of 
 the Governor-in-Council. (2) 
 
 Subscription. 
 
 3. It has been strongly contended that there is a difference Subscription 
 between subscriptions before the company is in existence and ^^^ stock 
 afterwards. The argument may be stated as follows. Before a potation or 
 company is incorporated, there is an offer on the part of those organization 
 wishing to become stock-holders to take shares. It is only, at° ny^ '^°'"" 
 tlie most, a mere proposition to take stock, and not a binding 
 promise to take and pay, (3) and certainly does not constitute 
 a contract which could be enforced by the party subscribing. 
 He could not by his offer oblige the provisional directors to 
 allot Hnyof tlie sliares toliim. Even after incorporation a larger 
 amount of stock than required might be subscribed for; iind 
 the power of the provisional directors to reject such applications, 
 as they please, is not doubtful. (4) But the question is whether 
 this offer, wlien accepted by the allotment of the stock, would 
 become a binding contract upon notice of the allotment to the 
 subscriber in proper time. It has been held in Quebec that a 
 subscriber to a company to be incorporated, but who never 
 subscribed after incorporation, nor received notice of allotment, 
 
 '' fay- 
 apital. 
 
 (1) Sec. 35. 
 
 (2) Sec. 37 ; i(bi supra p. 14. 
 
 (3) Tessier, J., in Arless r . Behnont Mfj;. Co., M. L. I\., I Q. H. 340. 
 Henry, J., in Nasniitli c. Manning, 5 S. C- K. 441. 
 
 (4) Sec. 34, ttlii supra, ■p. 13. , 
 
i 
 
 3« 
 
 The Raiiavay Law of Canada. 
 
 (', * 
 
 nor paid calls, is not liable for the stock, (i) And this view has 
 been sustained by the Supreme Court. (2) 
 Nasmith v. The question arose in Nasmith v. Manning (3) in this way : 
 Manning, banning made an application to the provisional directors of 
 the T. G. & B. Ry. Co., for shares, and signed the stock book, 
 which was headed by an agreement by the subscribers to 
 become shareholders for the amount set opposile their names, 
 and upon allotment by the company tliey covenanted to pay 
 ten per centum of the amount of the said shares and all future 
 calls. The company, on the ist July, passed a resolution instruct- 
 ing their secretary to issue allotment certificates to each share- 
 holder for the amount uf shares held by him. The secretary 
 prepared them, including one for Manning, and handed them to 
 the company's broker to deliver to the shareholders. Tiie 
 brokers published a notice, signed by the secretary, in a 
 daily paper, notifying subscribers to the capital stock of the 
 T. G. & B. Ry. Co., that the first call of ten per cent, on the 
 stock was required to be paid immediately to them. The res- 
 pondent never called for or received his certificate of allot- 
 ment, and never paid the ten per cent., and swore tha^ ne had 
 
 (r) Union Nav. Co. p. CoiiiIlar(l,2i L. C.J 71 (Q. li.1877) ;ArIess :■. l!el 
 mont Mfg. Co., M. L. R., I Q.B. 340 (1885) ; Rascony v. Union Navigation 
 Co., 24L.C. J. 133 (1878) ; but see Windsor Hotel Co. v. D.ite, 27 L.C.J. 7 
 (S. C. 1881). 
 
 (2) Nasmith v. Manning 5 .'^. C. R. 417 ; Mngog Textile .S: Print Co. z>. 
 Price, 14 S. C. R. 664 (10 L. N. 33 1). 'the same f. Dobell, ib., affirmin;,' 
 9 L. N. 348, Q. B. ; 12 Q. L. R. 204, Q. B. ; 14 R. L. 600, <^. B. 
 
 A sub.scription of shares in a company proposed to be incorporated is a 
 mere proposition to take stock therein, anr' is not binding; but where the 
 subscriber's name has been mserted in the letters patent, even without his 
 knowledge or consent, he is liable as regards third parties. Banque d'Hoclielaga 
 r. Garth, M. L. R , 2 S.C. 201. The latter part of this decision was re- 
 versed in the Privy Council, and the letters pcitent annulled. 15 App. (as. j 14. 
 
 In an action by a judgment creditor of a railway company against the de- 
 fendantto recover the amount of the shares which it was allegeil " he had sub- 
 scribed for," to become a member of the company to the extent of said shares, 
 plaintiff produced stock book of company.but failed to pr,)ve defendant's signa- 
 ture there appearing. Held : — that the fact of defendant's name appearing in 
 the act incorporating company as one of the provisional directors will not be 
 considered as authorizing the court to presume he ever became a subscriber 
 of .shares, more especially when there is no proof of his having acted as a pro- 
 visional director, or that he had attended any of the meetings of the company. 
 Rogers u. Hersey, 15 L. C. R. 141 (1S64 ) .See Wilson (,\ Ginty, 3 O. A. R. 
 124. 
 
 (3) 5 S. C. R. 417- 
 
ay: 
 
 s of 
 
 ook, 
 
 s to 
 
 mes, 
 
 pay 
 
 luture 
 
 [truct- 
 
 haro- 
 
 etary 
 
 m to 
 
 T!ic 
 
 in a 
 
 )f the 
 
 n tlic 
 
 f res- 
 
 allo:- 
 
 e hail 
 
 .l!el- 
 t'igation 
 
 '"•J. 7 
 
 Shares and Shareholders. 
 
 37 
 
 5,1f 
 
 never had any notice of the allotment having been made to liim. 
 The Supreme Court held, affirming the Ontario Court of Appeal, 
 that the document signed by Manning was only an ap|)licalion 
 for shares, and that it was necessary for the appellant to have 
 shown notice within a reasonable time of the allotment of shares to 
 respondent, and no notice whatever of such allotment had been 
 jiroved. From this judgment, Ritchie, C.J. , and Gwynne, J., 
 dissented, Strong, J., was absent, and Taschereau, J., stated that 
 he felt great embarrassment in coining to a conclusion, and had 
 vacillated a good deal about it. Unfortunately, for the sake of 
 precedents, aitliough leave was granted to appeal to the Privy 
 Council, thecise was settled before coming on for argument. 
 
 4. It is to be noted that ihc decision in A'asifu/Zi v. Jf 'i/iH//ig Aher organu- 
 only relates to sul)scri])tions before organization of tiie company, ''*''°"" 
 As ])ointedout liy Henry, I. , who delivered the principal judgment 
 in that case : (i) " We must look at this document from a stand- 
 point very different from that we should occupy in the case ofa 
 subscription to the stock book ofa comjiany already in existence. 
 A ])arly in the litter case would, after liis application for stock 
 had been urceiMcd, be called upon to sign tiie stock list in the 
 book of the coniixmy kept for tiiat purpose." And further on he 
 says : (2) '' If the signature of the respondent was to the regular 
 stock book of the company after being organized, no allotment 
 would require to be shown." 
 
 There is no doubt that in England, the contract for subscription 
 of shares is entered into in a somewhat more technical or formal 
 manner. An application, in the first instance, is made in 
 writing for a specified number of shares, which application is 
 held to be a mere offer, and is generally open for acceptance by 
 the corporation for only a limited time. (3) If the application be 
 accepted, the corporation formally allots to the applicant the 
 desired number of shares, and gives him a notice of allotment 
 within the time limited, The notice is of the essence of the con- 
 
 -^ 
 
 n) At page 441, vol. 5, S. C. K 
 (3) Ramsgate, etc., 
 
 (2) At page 443. 
 
 (3) Ramsgate, etc.,;^'. Montefiore, L. R., i Excli. 109 ; Hebb's case, L. R., 
 4 Lcj. 9; Gunn's case I,. U., 3 Ch. 40 ; Pellatt's case. L. R., 2 Ch. 527 ; 
 Household, etc., Co. r. Giant, L. R., 4 Ex. Div. 216; Ward's Case, I,. R., 
 10 1" |. 659 ; Harris' Case, L. R,, 7 Ch. 587. 
 
I 
 
 ^ 
 
 38 
 
 Thk Railway I -aw ok Canada. 
 
 tract. So it is well settled in England, that, in order to make 
 the contract to take up shares binding, there must he the applic- 
 ation in writing, the allotment of the shares to the applicant, 
 and a communication to him of the notice of allotment, (i) 
 
 But the reasoning of the English holdings upon tin's point [jro- 
 ceeds entirely from llie method of acquiring stock .subscriptions 
 in vogue in that country. As remarked by Lindley, in his work 
 on companies: (2) "Allotment and notice are, in truth, only 
 material where there is no agreement without them. In the 
 ordinary case of an application for shares, there is no agreement 
 in the absence of allotment and notice of it ; but there may well 
 be a binding agreement without either of them." 
 
 This is well shown in tlie English case of B/'n/, (3) cited by 
 Lindley, where the holding reads : " A director of a company 
 applied for and subscribed an agreement to lake additional 
 shares. He was entered upon the register in respect of the addi- 
 tional shares, but none were L\er actually allotted to him. 'I he 
 company being wound up, Ji/M : that his name was properly on 
 the register, and ought also to be placed upon the list of contri- 
 bntaries for such additional shares." 
 
 The difference between the English system and that in vogue 
 in this country is clearly pointed out in Za/a Superior Nav. Co. 
 V. Morrison, by Ciiief Justice Hagarty, (4) as follows : " If 
 there had been applications to the directors for shares, offering 
 to take stock, and, as often happened, to an amount exceeding 
 the number to be taken, we can easily see how important the 
 question of allotment would be. A man may signify his readiness 
 to take stock, and desire to have a certain number of shares, and 
 unless some shares were allotted to him, it coulu not l)e said 
 that he was the holder of any shares. In the case before us the 
 proceeding was of a totally different character. Parties were can- 
 vassed to take stock, and by the act of subscription they actually 
 subscribed for a specified number of shares, and expressly bound 
 themselves to make payments thereon, as might be required by 
 the board of directors. Little over half the capital stock was 
 subscribed for, and no question did or could arise from the 
 
 "i 
 
 (I) Cook, Stockholder?, sec. 56. (2) p. 761. 
 
 (3) 4 De G. J. & Sni. 200. (4) 22 U. C. C. 1'., p. 220. 
 
 a. 
 
Shares and Shareholders. 
 
 i9 
 
 course adopted, as to any act to be doiu' by the directors to alioi 
 any number of shares." Again, in Smif/i v. S/>e/ner (i) it w.is 
 held that the subscription to the stock book of a company w.is 
 sufficient evidence of the party subscribing being a shareholder 
 under the definition of that term in the Raihvay Clauses Con- 
 solidation Act, and that it was not necessary that scrip should 
 be issued for the stock to constitute sucli subscriber a shaic- 
 holder. 
 
 This was also the view held by ourCourt of Review in Rascony 
 V. Woollen Co. (2) It was there stated by Loranger, J., that 
 allotment is not usual in this country as it is in England. Tiie 
 subscription in this case was subsequent to incorporation, and 
 Nasmilh v. Manning (3) was quoted to show that allotment is 
 not essential to constitute a person a subscriber to a company 
 already formed. (4) 
 
 The question would seem to depend upon the form of the 
 subscription. It is difficult to understand upon what principle 
 a binding agreement may not be made to take shares in a com- 
 pany, whether organized or not, provided it be clear, precise and 
 unequivocal, and contains the usual essentials of a contract. 
 
 (I) 12 U. C. C. P. 277. 
 
 (2; M. L. R., 2 S. C. 382 ; and Alley v. Trenholme, 3 Q. R. (S.C ) 169. 
 
 (3) 5 S. C. R. 417- 
 
 (4) Where a person has subscribed for shares in the capital stock of the 
 company which is being organized and has assumed the position of shareholder, 
 and has paid a portion of the calls made from time to time on the stock, he 
 cannot set up alleged irregularities in the organization of the company as a 
 valid reason for avoiding payment of the remainder of the calls. Windsor 
 Hotel Co. & Lewis et al., 4 L. N. 331 ; 26 L. C. J. 29 (Q. I!. 1881) 
 
 Illegal acts on the part of the directors cannot be set up in defence to an 
 action for calls by liquidators or assigns representing the creditors of the 
 company. Ross et al. p. (Jan. Agr. Ins. Co., 5 L. N. 23, 1.SS2. 
 
 Appellant was solicited to subscribe for shares, and paid $500, and signed 
 his name to a subs-cripiion book, the columns ofamount of subscription and num- 
 ber of shares being at the time left in blank. These columns were afterwards 
 filled up for 50 shares by an agent of the company in appellant's presence, 
 but without his consent. Appellant then tried to be relieved from the surplus 
 shares without success, and later on received a dividend on the paid up capital 
 and gave a receipt. 
 
 Upon an action to recover calls on 50 shares at $100, alleged to have been 
 subscribed. 
 
 Held (reversing Q. B. decision, 6 Q. L. R. 147 (Q. B.) : That the evidence 
 showed that the appellant never contracted to take 50 shares, and that the 
 receipt given (or the diviilend on amount paid in was not an admissii>n of the 
 liability for a larger sum, and he was not estopped but he was never in fact 
 holder of 50 shares. Cote y. The Stadacona Ins. Co., 6 S. C. K. 193. 
 
40 
 
 The Railway I.wv ok Canaha. 
 
 
 '1 ho question should be determined in each case on the prin- 
 cipks which govern or.linary contracts, (i) 
 
 It WDuld be advisab'e to have siiI)S(:riplioi> forms drawn in 
 luecisc and unequivocal terms. 
 
 Conditional. •*• Subscription to slo :k in a railway company may be condi- 
 tional, (2) but the conditions must be performed before calls can 
 be made tliereon, (3) although it is not necessary that they 
 should be accurately fulfilled ; it is sufllcicnt if tiiey be materially 
 carried out. (4) Thus, where defendant subscribed on condition 
 that the road be constructed to within -);j! of a mile of his 
 tannery, it was held that defendant would be liable for calls if 
 the road ran so near to his tannery as to substantially fulfill the 
 condition, (5) An American railroad company were induced 
 to extend their line to the Canadian boundary, on the condition 
 that the inhabitants of the neighborhood would contribute their 
 subscriptions to a certain quantity of shares in the road. The 
 company's part of the condition was held to have been [)roperly 
 ]>crformcd by bringing their line to the boundary in the neigh- 
 borhood asked to contribute. And one of the subscribers could 
 not escape his liability because the company had not brought 
 tlicir terminus to a point where he believed it was to be. The 
 company were at liberty to select any convenient spot on the 
 lioundary line. (6) If an offer is made to take shares condi- 
 tionally or upon unusual terms, a clear acceptance of these 
 conditions or terms must be proved in order to constitute a bind- 
 ing agreement; and the mere fact that the shares have been 
 I)laced in the applicant's name is not sufficient to bind him, (7) 
 'I'hc conditions must be assented to by those who are com- 
 petent to bind the company; (8) they must be expressed in the 
 subscription, (9) and must not be a secret qualification. (10) 
 
 (1) Per Ritchie C. J. in Magog Textile Co. v. Price 14 S. C. R. at p. 671. 
 
 (2) Rogers V. Laurin, 13 L. C. J. 175, Q. B. 1863. 
 
 (3) Massawippi Railway Co. v. Wallter,3 R. L. 450 ; Rogers v. Laurin, 13 
 L.C.J,i75(Q.H. 1863). 
 
 (4) Stanslead Ry. Co. v. Brigham, 17 L. C. R. 54 (S. C. 1866). 
 
 (5) Ibid. 
 
 (6) Conn. & Passunipsic Ry. Co. v. Comstock, i R. L. 589 (Q. B. 1870.) 
 
 (7) Lindley Conip. 17. Shack leford's Case, L. R., i Ch. 567. 
 
 (S) Howard's Case, I Ch. 561 ; National Ins. Co. v. Chevrier, i L. N.591 
 (9) Jones :■. Montreal CoUon Co., i L.N. 450, and 24 L. C.J. io8. 
 (10) Pon Dover & Lake Huron Ry. Co. v. Grey, 36 U. C. Q. B. 426. 
 
 
Shares and Shareholdkrs. 
 
 4« 
 
 11 • 
 
 lin 
 
 6. The company arc not bound by an agreement lictwecn a I'nyment in 
 subscriber and lliose who sohcited him to become a shareliolder,*"^^^'"'^ Z*"^" 
 that he would pay for liis stock in supplies to the company, (i) 
 
 Nor where the agreement is to pay for stock in services ; (2) or 
 where the agreement is made with a provisional director, a chief 
 j)romotcr of the company, on the condition tliat the subscriber 
 shall receive the contract for building the road. (3) 
 
 7. It is too late for a subscriber to repudiate his subscription Repudiaiion. 
 wiien he has paid the first instalment and taken an active part, 
 
 liolli as solicitor and shareholder, in promoting the affairs of the 
 (ompany, he being at the time in possession of the facts which 
 gave rise to his repudiation. (4) 
 
 H, Shares subscribed to in a special subscription list, and made Special suIj- 
 jiayable upon the performance of a certain condition, are payable -"'?'""'• 
 without the making of regular calls. (5) 
 
 J). All Act of incorporation maybe for two purposes, e.g. : the other cases, 
 construction of tlie line from one point to another, and giving 
 tlie company power to extend the line to another point. In 
 such case it is quite competent for the company to receive sub- 
 scriptions for stock to be applied to the m-iin line, and the ex. 
 tension separately. (6) It is also competent for the parties res- 
 pectively subscribing for these stocks to contract with the 
 provisional directors, that beyond the usual ten per centum paid 
 upon subscription, no other money whatever shall be called 
 for, nor any calls be made, until a particular sum shall be sub- 
 scribed for the main line, or for the extension line, as the case 
 may be. (7) 
 
 10, Where a jjcrson subscribes for shares in a company incor- Effect of sta- 
 porated for certain specified purposes, and not otherwise, yet if the '"'°''y change, 
 shareholders apply to Parliament for extended powers, whereby 
 the nature of the business is varied and extended, and, in the 
 
 (1) Christin z: Union Nav. Co., Ram. Dig. 391 (Q. B. 1882). 
 
 (2) Nat. Ins. Co. v. Halton,24 L. C. J. 26 (Q. H. 1879), 2 L. N. 238. 
 
 (3) Wilson :•. Ginty, 3 O. A. k. 124. 
 
 (4) Nat. Ins. Co., r. llaiton, 24 L. C. J. 26 (Q. H. 1879), 2 L. N. 238. 
 
 (5) Stanstead 6t Connecticut Ky. Co. v. Brigham, 17 L. C. R. 54 (S.C. 
 
 'l8b6; 
 
 (6) Tort Uovei ,S: r.ike Huron Ry. Co. r- Grey, -16 U. C O. H., n. 4J8. 
 
 (7) Ibid. •* c . 1 '»J 
 
 J 
 
42 
 
 Thk Railway Law oi-' Canada. 
 
 Shares may 
 be transferred. 
 
 When com- 
 plelc. 
 
 Form of. 
 
 Right to. 
 
 ii i 
 
 W' 
 
 opinion of the subscriber, rendered more hazardous tlian when 
 he first became a member, sucli Act of Parliamont is binding 
 upon all sliareholders, whether assenting or not to the applica- 
 tion to Parliament, (i) 
 
 Traifsfev. 
 
 1.1. Shares in the company may, by the holders thereof, be sold 
 and transferred by instrument in writing, (2) made in dupli- 
 cate, — one part of which shall be delivered to the directors, to 
 be filed and kept for the use of the company, and an entry 
 whereof shall be made in a book to be kept lor that purpose ; 
 and no interest^or dividend on the shares trans! -red shall be paid 
 to the purciiaser until sucii duplicate is so deh -ed, filed and 
 entered. (3) 
 
 IJJ. The transfer is compi'-.te when entered in the stock led^'er 
 in the name of the transferee, altliough the acceptance has not 
 been signed. .Vnd when so entered, a seizure of the shares under 
 an execution against the transferor will not be upheld. (4) 
 
 Hi, Transfers are made in the form provided by sec. 74, except 
 in the case of paid-uj; shares, which may be made in such form 
 as the by-lawfc prescribe, (5) " but no shares shall be transferable 
 until all previous calls thereon have been fully paid up, or umii 
 the said sliares have been declared forfei:ed for the non-payment 
 of calls thereon , .aid no transfer of less than a wii )le share 
 shall be valid." (6) 
 
 14. Where shares ii.re transferable. (7) and no restriction 
 
 (1) Cannil.-i Car & Mamifacturing Co. r' Harris, 24 U. '." C. V. 380, .iml 
 cases tliere cited. 
 
 (2) The verbal testimony of the secretary of a railway comp.iny. t > the 
 effect that it appeared by the books of the company that the shares Dri^'inally 
 in tlie name of the defendant had been tvansferred before the inslitution of 
 plaintifl's action, who .sues as a creditor of the comiiany, to lecover tiie 
 amount unpaid on such shares, is insufficient to establish the fact of such 
 transfer. Cockburn v. Beaudry, 2 L. C. J. 2S3 
 
 (3) .Sec.73. (4) Woodruff I'. Harris, 11 U. C o. U. 490. 
 (5) .'^ec. 74. (6) Sec. 75. 
 
 (7) Where a company are asked by a transferee to register stock transferred 
 to him by another person, the company are justified in refusing to do so in 
 respect 01 such shares .as appear only in an entry of credit to tlie transferor 
 of the sh.ares in the ledfjer, but wliich are not standin<^ in his name in the 
 stock book. MacMurrick v. I5ond Head Harbour Co., 9 U. C. i^'. B. 3-13, 
 and see Cockburn c lieaudry, 2 !,. C.J. 2S3, wi/ra- 
 
Shares and Shareholders. 
 
 43 
 
 l3 
 
 |l- 
 
 i 
 
 on the right to transfer them is imposed by the by-laws of 
 the company, or by the statute or charter by whicli it is 
 governed, the right to transfer is absolute, and the directors 
 cannot prevent a transfer, even if they are bona fide of opinion 
 that it is for the interest of the company that tliey should do so. 
 (i). So under the section of a special Act incorporating a 
 railway, which section is similar to sec. 73 of the present Rail- 
 way Act, it was held that the clerk could not refuse to register a 
 transfer of stock from one municipal corporation to another, on 
 the ground that no by law had been passed sanctioning such 
 transfer. (2) Even a transfer to a pauper, in order to escape 
 from liab lity, is valid, and cannot be prevented. (3) 
 
 But notwithstanding the length the courts have gone in hold- 
 ing the right to transfer to be free from all implied restriction, a 
 transfer which is fraudulent in the sense of not being a real 
 transfer out and out, or a transfer made for fraudulent purposes, 
 (4) can be lawfully objected to by tlie directors. (5) liut a 
 transfer to avoid future liability or to multiply votes is held not 
 to be fraudulent. (6) 
 
 Where, by the Act of incorporation, certain definite restrictions 
 are placed on the right to transfer shares, the directors are 
 bound strictly by the terms of those restrictions. (7) And 
 where the Act requires the consent of the directors to a transfer, 
 such power of assenting or dissenting to a transfer is rejio:;ed 
 in them as trustees, and they must exercise that ])ower accord- 
 ingly- (8)_ 
 
 (1) t.indley Comp. 464. Moffatt r. Faiqubar, 7 Ch. D. sgi ; Stranton 
 Iron Co., 16 Eq. 559 ; Weston's Case, 4 Ch. 20. ,-\ comj)any iucorpuiated 
 27-28 Vic, cap. 23, ha.s nor power to refuse to alluw a transfer of sliar,;s of 
 its s' V. wuliout assigning a sutncient reason. Smith :•. ("an. Car Co. 6 
 P. R. lo; 
 
 (2) Miin.Corp.of Vespra & Siinn/lile \\ iJeatty, 17 U. C. <J. 1!. 540. 
 (31 Lindley Comp. 464. 
 
 (4) A transfer of shares by a stockholrler in a j(Mnt stocic company, which 
 is made witli the object and lias the effect of leducin;; the capital stock 
 of the company, is void, .and all vesojutions of the directors authorizing such 
 transfer are illegal and ultra riiy.^. Ross /•- Worlhington, 5 1,. .\. 140." J'ide 
 also Ross c. iMset, S Q. L. R. 251, p 56, infni. 
 
 (5) Lindley Comp. 465 ; Weston's case, 4 Ch. 20. - 
 
 (6) Lindley Comp. 465. (7) Weston's Cise, 4 Ch. 20. 
 
 (8) Exparte I'enney, 8 Ch. 446; I'oole 1: .Middleton, 29 Deav. 046; 
 Robinson c. Chartered ]3ank, I Eij. 32. 
 
■I 
 
 44 
 
 The Railway Law ok Canada. 
 
 Section 58 of the Act gives the directors I'yw-r . make 
 by-laws for the disposition of the stock, etc. 
 
 In the absence of any provision of the special Act and of any 
 by-law regiilaiing this matter, the general law on the subji^ct 
 seems to be clear, that ihe powers of directors to refi. 
 l>erniit a transfer of stock can be derived only from express 
 aiiihorily, and cannot be extended by implication, (i) "Such a 
 power," says Judge Dillon \\\ Johnson v. Laflin, (2) "is so 
 c.ipabic of abuse, and so foreign to all received notin..^ aid the 
 universal practice and mode of dealing in these stc ck'\ t'ut it 
 cannot, in the absence of legislative expression, be heiJ to 
 exist." 
 
 In the United States, a transfer of shares in a failing concern, 
 made by the transferor with the intention and for the purpose of 
 escaping liability as a shareholder, to a person who for any 
 cause is incapable of responding in respect of surh liability, is 
 void both as to creditors of the company and as to other share- 
 holders. (3) But, on the other hand, it has been held that if 
 the transfer is bona fide, nnd the transferor is ignorant of the 
 insolvency of the transferee, and 'he company is not insolvent, 
 the transfer is effectual, and the transferor is released from liabil- 
 ity- (4) 
 
 The English rule goes further, as stated above, and a share- 
 holder may tr-iMsfer his shares to a man of straw for i nominal 
 >-<jnsideration, even although the sole purpose of such a transfer 
 be to escape liability. But the transfer must b',- out and out, 
 iind not merely colorable and collusive. {5) 
 
 In this country the English rule has been fully adopted. (6) 
 In a recent New Brunswick case, (7) it was Held: "that 
 where a director or other stockholder of the soci^ity had, prior 
 
 (1) Weston's Case, 4 Ch. App. 20; Gilbert's Case, 5 Ch. App. 559; 
 Chappell's Case, 6 Ch. App. go2 ; Stranton Iron & Steel Co., i6 Kq. 559 ; 
 Moffatt V- Farquhar, 7 Ch. D. 591. Johnson v. Laflin, 103 U. S. 800. 
 
 (2) 103 U. S. 800. (3) Cook, .Stotkholders, S 263. 
 
 * (4) Miller c- Great Repub. Ins. Co., 50 Mo- 55 j Cole t". Ryan, 52 Barb. 
 "i68. 
 
 (5) Cook, .Stockholders, § 266, and numerous cases there citfd. 
 
 (6) Held : that the insolvency of the assignee was no objection to tiie trans- 
 fer, the only condition to a valid transfer being the payment of all calls. 
 Moore et al. v- McLaren, ti U. C. C. 1'. 534 ; see also extract from rei'ort 
 of same case, iii/m p. 45. 
 
 (7) 30 N. 13. 628. 
 
Shares and Shareholders. 
 
 45 
 
 Ike 
 
 ny 
 
 M 
 
 ^ct 
 
 vl 
 
 
 f^ 
 
 
 ■il 
 
 ess 
 
 « 
 
 h a 
 
 '1 
 
 so 
 
 ■^ 
 
 the 
 
 1 
 
 ^t it 
 
 . ,f 
 
 to 
 
 
 IS 
 
 to the application for winding up, transferred shares in the 
 society bona fide, such transfer was valid, and the transferor was 
 not liable to be placed on the list of contributories, even thoiigli 
 the transfer was made for the jjurpose of avoiding his liability 
 for calls, with the knowledge that the society was in insolvent 
 circumstances, and thai the transferee was unable to meet any 
 calls that migiil be made upon iiim, and although the considera- 
 tion for the transfer was merely nominal , or even although he 
 paid the transferee money to induce him to accept the transfer." 
 
 'llicre is every reason to suppose that the Supreme Court 
 would adopt this view, as the transfer of shares is a subject 
 relating to ciie trade policy of the country, which is very dis- 
 tinctly in favor of freedom from restraint. And in a very recent 
 House of Lords case, (i) Lord Herschell, qiioli.ig Blackburn. 
 J., in /;/ re Bahia & San Francisco Ry, Co., (2) said "that 
 when joint stock companies were established, it was a great 
 object that the shares should be capable of being easily trans- 
 ferred." 
 
 'I'he fact that The Railway Act does not provide for sucli a 
 contingency as we are now debating, excepting in so far as po.vcr 
 is given to the directors to make by-laws regulating the matter, 
 must lead us to the same conclusion as that arrived at by the Su- 
 preme Court of New Brunswick in the above case, where it was 
 said : '* The liability of shareholders is the entire creation of the 
 Legislature, anJ cannot be any more or less. If it was intended 
 that there should be any restriction on tlie right to transfer, or of 
 ceasing to become a stockholder, the Legislature could have im- 
 posed it, and they must have known that this could be done, and 
 they did not provide for such a case, and it would be simply an 
 act of legislation for the Court to attempt to do it." 
 
 Again in Ontario it has been held that the insolvency of the 
 assignee of the stock is no ground for vitiating the assigimient, 
 the only condition precedent for the valid assignment of stock 
 being the payment of calls. (3) This case came under The Rail- 
 way Clauses Consolidation Act, 14 &: 15 Vic.,r. 51, the relevant 
 
 (1) Tlie Halkis Consolidated Co. & Tomkinson, 1893, App. Cas. 396. 
 
 (2) L. R, 3Q. B. 584. 
 
 (3) Moore f. McLaren, i[ U. C. C. P. 534 ; and see Reg. i-. Lamhouin 
 Valley Ry. Co., 22 Q. li. D. 463 (1S88.) 
 
46 
 
 The Railway Law of Canada. 
 
 Liability of 
 company for 
 frauduleiu 
 transfer. 
 
 Pleasure of 
 ilaniages for 
 •neg'ect to 
 transfer. 
 
 clauses of whicli have been re-enacted almost verbatim in the 
 ]) resent Railway Act. 
 
 Finally, Mr, Wood, in his work on Railways, says : " Directors 
 liave no right to refuse a transfer because, in their judgment, the 
 motives and purposes of the parties are improper, or because the 
 transfei may injuriously affect the company, (i) 
 
 15. P., the owner uf numbered shan°s in a joint stock company, 
 transferred them to persons who were registered in the company's 
 books as proprietors of shares. P. afterwards fraudulently ex- 
 ecuted a transfer of the shares for value to T.,who sent the trans- 
 fer to the company, and received from them a certificate under 
 their common seal, stating that he was the proprietor of the 
 shares. T., acting bonafi,ue on the faith of the certificate, sold the 
 shares, but the company refused to register the purchaser as 
 the proprietor, on the ground that after granting the certificate 
 to T. they had discovered that he was not the real owner of the 
 shares. It was held that the company were estopped by their cer- 
 tificate from denying that T. was the proprietor of the shares, and 
 tlial he was entitled to recover from the company the damages 
 wliich he had in fact sustained owing to their refusal to register 
 the purchaser. (2) 
 
 16. An action was brought against a railway company for ne- 
 glecting to register a transfer of shares in the books of the company 
 wliich had been transferred by the plaintiff to a creditor as col- 
 lateral security, the arrangement being that the creditor should 
 sell the shares at the best rate, and after deducting the amount of 
 claim, pay ov:'r the balance to the plaintiff; and after repeated 
 demands on the company to register such shares, tliey were finally 
 registered and sold ; but in the interim a great depreciation had 
 taken place in their value, and plainl'ff brought action by way of 
 damages for the difference. 
 
 'i'he court held, that the plaintiff was entitled to such action, 
 and that the measure of damage was the difference between the 
 price of the stock at the time of refusal and the price at the time 
 of the subsequent registration of stock. (3) 
 
 (1) Ed. 1885, p. 253 ; and see Moreton, J., in Crocker r. Old Colony 
 llailroail Co., 30 Alb. L.J. 495 ; and Cook, .Stockholders, § 385,395. 
 
 (2) The Balkis Consolidated Co. y. Tonikinson (.1893), App. Cas. 396. 
 
 (3) Grand Trunk Ry. Co. v. Webster ; 6 L. C.J. 178 (Q. B. 1861). 
 
Shares and Shareholders. 
 
 47 
 
 ■4 
 
 17. It has been held in a recent English case, (i) that where Mandamus to 
 an action for mandamus will lie, the prerogative writ will not be '^"""^'^ " 
 allowed to issue to compel transfer of shares. (2) This case seems 
 to mark a new departure in this respect, and it will now be seldom 
 necessary or proper to apply for a prerogative writ to settle 
 disputes between companies and their members. (3) 
 
 In order that a mandamus may He to compel a company to 
 transfer shares, there must be a distinct refusal on the part of the 
 company to do so. A refusal in effect, though not in direct 
 terms, would be suliicient to give rise to such an action. But no 
 rule can be laid down for determining whether there has been a 
 refusal or not. (4) 
 
 (1) The l^iieen r. Lambuurn Valley Ry. Co-, 22 Q. 15. 1). 463. 
 
 (2) \Vheif a petition for a rnandanuis was demanded against a railway 
 comjiany, to comiicl it to make the necessary entries in their books of the sale 
 to the petitioner of a number of shares in the capital stock of the company : 
 
 //iAj' to be the lUity of a clerk or secretary to enter the names and places 
 of residence of Ihs owners of stock in the company, and that the Superior Court 
 h.iil jurisiiiction to enforce such order under 12 Vic, cap. 41, MacDonald v. 
 Montreal ."v New York Ky. Co., 6 L. C. R. 232 (1856). 
 
 In an action against a Harbour Co., for refusing to register a transfer of 
 Slock by one S. to the plaintiff. 
 
 //i''/ .• that altliough S beinj; president of the company might perhaps have 
 le ed his iissi(^nment himself, yet that the refusal of the secretary to do so 
 
 foi H good ground of an action againstthe company. MacMurrick v. Bond 
 
 He. arbour Co., 9 U. C. *^>. B. 333. 
 
 N'. was the banker of a railway company ; he was also one of the directors. 
 Under certain business arrani^ements of the company he was entrusted with 
 liie possession of certilieates which represented shares, and those shares he held 
 as trustee for the company. He converted liie shares. The conversion was 
 discovered. He gave an explanation, replaced the share?, and continued to 
 hold the certificates as before, and stood on the register as the apjjarent owner 
 of them, lie borrowed money of R., and deposited the certificates with R., 
 who held theni for some time without having taken any step to be registered 
 as the owner of ilie shares. R.'s widow and executri.x applied to be registered 
 as the owner ; lier application was refused. She moved for a mandamus to 
 compel registration; the Court of (J. I!, refused the mandamus. The Ex- 
 chec|Uer Clianibcr reversed that decision, and ordered it to issue. /Md : by 
 House of Lords, thni this was the ordinary case of a trustee abusing his trust ; 
 tliatifR.had made [iroper inquiries l^e would have found that li. was only 
 a trustee ; that negligence suflicient to affect their equitable title could not 
 be im])Uted to the tlirectors and tlie company, and consequently the equitable 
 title of R. could not jirevail against the earlier equitable title of the company. 
 
 By the Lord Chancellor - Whether a transfer of shares in a company can or 
 cannot be made witliout the production of the certificates of the shares is a 
 matter entirely within the discretion of the directors. Shropshire L'liion 
 Rys. & Canal Co. v. Uegina, L. R., 7 II. of L. 496. 
 
 (3) Lindley Comj). 603. 
 
 (4; Lord iJennian in Reg. f. Thames & Isis Navigation, 8 A. &: V.. 904. 
 
48 
 
 The Railway Law of Canada. 
 
 11= 
 
 In Ontario, however, it has been held thai when several demands 
 to transfer the stock were made, and delays and evasive answers 
 given, without in direct terms refusing, a mandamus could be 
 directed to the company, (i) 
 
 Transmission 18. Ifanv share in tlie capital stock of tlie company is trans- 
 otherwise than niitted by the death, bankrui)icy or last will, donation or testament, 
 by transfer. , ^ . ' ^ , , , , , , r , 
 
 or by the mtcstacy of any shareholder, or by any lawful means 
 
 other than transfer, the person to whom such share is transmitted 
 must deposit in the office of the company a statement in writing, 
 signed by him, which shall declare the manner of such transmis- 
 sion, together with a duly certified copy or probate of such will, 
 donation or testament, or sufficient extracts therefrom, and such 
 other documents or proof as are necessary, and without such 
 proof the person to whom the share is so transmitted, as afore- 
 said, shall not be entitled to receive any part of me profits of the 
 company, or to vote in respect of any such share as holder 
 thereof. (2) 
 
 As to what proofs would be necessary ; if there were a will, in 
 Quebec the production of a notarial copy if in notarial form, or 
 of a certified copy of the probate if in holograph (t English form, 
 would be sufficient ; in the other provinces, a certified c opy of 
 the probate and letters of administration. 
 
 In the case of intestacy, in Quebec tiie company might n quire 
 certificates of the death of the shareholder, (3) and tiie birth of 
 the heirs claiming, (4) extracted from the ofiicial registers of civil 
 status, (5) as well as affidavits or declarations or such other proof 
 r.s might be necessary to establish heirship ; and if the shares 
 were to be divided among the heirs, a copy of the deed of parti- 
 tion. (6) 
 
 In the other Provinces, in the case of intestacy, a certified 
 copy of letters of administration, issued in accordance with the 
 law of the particular Province, would seem to be all that would 
 be necessary. 
 
 Company not 10, The company i.s not bound to see to the execution of 
 
 bound to see ^^^y ^^^^^^ whether express, implied or constructive, to which any 
 to trusts, etc. ■' i i > i > J 
 
 (1) Jn re. Goodwin & The Ottawa & Prescott Ry. Co., 13 U. C.C. P. 254. 
 
 (2) Sec. 76. (3) C.C. 67. 
 (4) C. C. 54. (5) C. C. 42 so. 
 (6) C. C. 689-711, 
 
Shares and Shareholders. 
 
 49 
 
 share or security issued by it is subject, and whether or not the 
 company has had notice of the trust, and it may treat the regis- 
 tered holder as the absolute owner of any such share or security, 
 and, accordingly, shall not be bound to recognize any claim on 
 the part of any other person whomsoever, with respect to any such 
 share or security, or the dividend or interest payable thereon, (i) 
 
 This section is accompanied with the proviso that nothing 
 therein contained sliall prevent a person equitably interested in 
 any such share or security from procuring the intervention of 
 the Court to protect his rights. 
 
 Similar provisions to the above, contained in Acts relating to 
 joint stock conipanier, have been given the fullest effect to both 
 in England (2) and in this couniry (3) in protecting the corpor- 
 ation from claims in connertion with trusts, whether express or 
 implied, to which their shares might be subject. 
 
 If, however, the company were to deal with, for their own bene- 
 fit, stock held in trust or subject to a trust of which they had 
 notice, they would be obliged to account to the true owner for 
 the shares, should it appear that the person from whom they got 
 the shares had not authority to deal with it. (4) 
 
 *iO. And in such a case where the shares are held by a person sh.ues " m 
 " in trust," these words import an interest in some other person, inisi." 
 though not in any specified person, and clearly show an infirmity 
 or insufficiency in the holder's title ; and are enougii to put the 
 company upon enquiry. (5) 
 
 But the contrary would seem to be the rule, and the section 
 would have its full force and effect^ where the company mcrel) 
 allowed a translor to a third person, and had no pecuniary 
 interest in the transaction ; jrovided always that the transferor 
 were not devoid di authoniv 10 transfer. 
 
 < 1 ) Stc. 77, as amended by 55-56 Vic, cap. 27. 
 
 (2") Hank of Eng, r. Harii;;i, 3 Wwy ^5 ; liatik of Eng. c. Taisons, 5 
 Vesey 665 ; Bank, of ' '"{j, c Lunn, 15 Vesey 5S3; (Iray v. Johnston, I,, R., 3 
 H, of L. I ; e\ .".irif Santa Haibara Minini^ Co,, 3S W, R. 71: (Coleridge. 
 C. J., lSv». J. 
 
 (3) ."^111 sou c. Molsons Hank, to v reported in Vol. 3 or 4, Q. R, 
 (Q. B.) ; cv)nfinneil in I'. C. 1S95 < not yet reports '. ) 
 
 (4) Bank of M li.' 1 < Sweeney, 56 \.. J. V.L. 79 ; and I.. R., 12 App, 
 Cas. 617. 
 
 (5) Ibid. 
 
50 
 
 The Railway Law of Canada. 
 
 I 
 
 :1 
 
 Warn uf au gl. Where the want of authority is apparent, the company 
 cHiuhe'trair-^-'^'S'i'^ ^'<^ '"^'^ accountable to the true owner. For instance, in 
 fnor. Quebec, where shares in a bank stood in tlie name of a tutor to a 
 
 minor, and the bank allowed the transfer to be made by the tutor, 
 without the authorization of the Court upon the advice of a 
 family coiir.cil, as required by the laws of that Province, (i) it 
 was held that the bank was liable for the value of the shares 
 (which had been dissipated and lost), on the ground that the 
 tutor had no power to sell. (2) As was said by the Privy 
 Council : " When this excess of power is once established, then 
 the sale is in fact the sale of a stranger, and as if a stranger 
 had sold these shares, and had then by fraud and forgery 
 induced the bank to make the transfer of them in their 
 books. ■' (3) 
 
 Succeision 
 duty luipait 
 
 4 
 
 33. In this connection it may be doubtful, where a Provincial 
 Legislature has imposed a tax or succession duty upon property 
 transmitted by the decease of the owner, and has declared that 
 all transfers of slock belonging to the succession shall be void 
 and shall pass no title until the tax is paid, whether a company 
 allowing a transfer to be made before the tax is paid would not 
 be liable to those persons who might suffer thereby. The deci- 
 sion of this question would depend largely upon the language of 
 the particular statute. 
 
 In the Province of Quebec such a statute was recently passed, 
 (4) which not only declared that all transfers of property, shares, 
 etc., belonging to the succession would be null and void, and 
 pass no title, (5) but also that no executor, administrator, trustee, 
 etc., should consent to or make any such transfer until the tax 
 had been paid. (6) 
 
 Ai)])lying the reasoning in T/ic Bank of Montreal v. Simpson, 
 (7) it would seem that in the case of a company allowing an execu- 
 tor to transfer before the tax had been paid, the company would 
 be liable to the beneficiaries if the shares or their proceeds were 
 dissipated or lost ; inasmuch as the sale would be an absolute 
 
 (1) C.C.297. 
 
 (2) Bank of Montreal i'. Simpson, 14 Moore P. C. 417. 
 
 (3) Ibid, p. 445 ; and see Colonial Bank v. Williams. 15 App. Cas. 267. 
 
 (4) 55-56 Vic. Cap. 17. (5) Ibid., sec. R. S. Q. 1191 ''. (5) 
 (6) Ibid. (7) 14 Moore P. C- 417. 
 
Shares and Shareholders. 
 
 SI 
 
 y 
 
 n 
 a 
 
 millily, and the power of the executor to sell, with which he 
 might be clothed under the will, had been taken away by the 
 statute, and the sale would be an act in excess of his powers until 
 he should have fulfilled the condition precedent of paying the 
 tax; just as the tutor's act in selling the shares in the Simpson 
 case was held to be in excess of his power because he had not 
 fulfilled the condition precedent of obtaining an authorization 
 from the Court. 
 
 The question, however, has not yet been judicially passed upon ; 
 and in the meantime it would seem a safe and conservative 
 course for companies to refuse transfers, where such an act is in 
 force, until the succession duty to which their shares may be 
 subject has been paid. 
 
 23. Any shareholder who is willing to advance the amount of intciest on 
 
 his shares, or any part of the money due upon his shares, beyond ^""^^ P""' '" 
 
 ' ■' '■ ■' ' ^ advance, 
 
 the sums actually called for, may pay the same to the company, 
 
 and upon the i)rincipal moneys so paid in advance, or so much 
 
 thereof as from time to time exceeds the amount of the calls then 
 
 made or the shares in respect to which such advance is made, 
 
 the company may pay sucli interest, at the lawful rate of interest 
 
 for the time being, as the shireholdt^rs who pay such sum in 
 
 advance, and the company, agree upon ; but such interest ;jball 
 
 not be paid out of the capital subscribed, (i) 
 
 •it 
 
 Actions by Creditors Hj^ainst Sliareliolders. 
 
 34. Every shareholder is individually liable to tlie creditors Liability of 
 of the company for the debts and liabilities of tlie company, sharehoUlers. 
 to any amount equal to the amount unpaid on the stock held by 
 him, and until the whole amount of his stock has been paid up; 
 
 (I) Sec. 85. 
 
 In an action by McK. under the C. S.C., ch. 6,^, against K. et al., share- 
 holders of a joint stock company incorporated under that Act, to recover the 
 amount of an unpaid judgment they liad obtained against the company, the 
 defendants pleaded inter alia that they had paid up their full shares, and there- 
 after and before suit had obtained and registered a certificate to that effect. 
 
 Held: aflirming the judgment of C. 1'., that under sees. 33, 34 and 35, cha-^. 
 63, as soon as a shareliolder has paid up his full shares and has registered, 
 although not until after the 30 days mentioned in sec. 35, a certificate to that 
 effect, his liability to pay any debts of the company then existing or there- 
 after contracted ceases, excepting always debts to employees as specially 
 mentioned in sec. 36. McKenzie v. Kittridge, 4 S. C. R. 368. 
 
 ■-A 
 
i* 
 
 The Railway Law ok Canada. 
 
 [1:1' 
 
 
 Execution 
 against tliu 
 company. 
 
 but no such shareholder shall be liable to :in action in respect 
 of his said liability until an execution at the suit of the creditor 
 against the comi)any lias been rclurncd unsatisfied in wliole cir 
 in part, (i) 
 
 The word "creditors " used in this section is seen to be phu;il, 
 but it is evident that a single creditor may pursue the remedy 
 given by the siatuif. (2) 
 
 !i5. With regard to executions ngainst the company, all 
 the court requires of the creditor is tiiat he make proof of 
 having made reasonable attempts to obtain payment from tiie 
 company, and to discover assets presently available for iiis 
 sali^iaction, and that such attempts have I^-en unsuccessful. (3; 
 A mere general assertion by a solicitor's clerk, that writs of 
 fieri facias have been issued against the company and returned 
 nulla bona, is not sufficient. (4) But if attempts have been made 
 to discover assets, and these attempts have been fruitless, and a 
 wuioifieri jacias has issued against the company, and been 
 returned nulla bona, that will b^ sufficient until it is shown aftir- 
 malively tiiat the comi)any has assets ; and even if the conii)any 
 has assets which have not been taken into execution, still, if the 
 court is satisfied that they are insufficient to satisfy the jilaintifi", 
 the action would lie. (5) 'I'lie making of calls by directors is 
 not a condition precedent to the creditor's riglu to recover. (6; 
 
 It has been held to be not ne<;essary liiat a fieri facias dc bonis 
 should be returned nulla bona fioin all the counties through 
 which the railway runs. (7) 
 
 Cause of ac- ^(J, The cause of action arises where the company has its 
 
 case-: '" ''"'^^ principal office and where judgment is rendered for the debt 
 
 due by the company, and execution is issued, and not at the place 
 
 where the stockholder subscribed for his shares, if outside tlie 
 
 district of the he:-d office. (8). 
 
 (1) Sec. 86. 
 
 (2) Moore c. Riikland, 5 U. C C. 1'. 452. 
 
 (3) Moore c. Kirklanil, 5 U.C. C. P. 452. Lintlley Comp. 291. 
 
 (4) Ilitchins v. The Kilkenny R. R. Co., lo C. 1!. 160, 15 C. 15. 459. 
 
 (5) Lindley Comp. 291. 
 
 (6) Moore r. Kirklaml, 5 U. C. C. Y. 452. 
 
 (7) Jenkins c. Wilcock, 11 U. C. C P. 505. 
 
 (8) Welch i\ Baker, 21 L, C.J, 97, 1876, 
 
Sharks and Siiaueitolders. 
 
 53 
 
 Wliere an action was brought in Ontario against a sharcliolder, 
 there resident, of a company whose head office was in another 
 Province wlierc judj^'mcnt had l)een obtained by the plaintiff 
 against the company, and execution thereon had been returned 
 unsalistied, it was //('A// that the cause of action against the 
 shareholder was complete without the return unsatisfied of an 
 execution against the company in Ontario, (i) 
 
 UT. I'cfore the above case was decided, it seems to have How action 
 
 been uncertain in Ontario whether tlie action against the share- ac-i'"'^' share- 
 . ,-11111 11 v r 1 -^ /.holder should 
 
 holder should be commenced by writ of summons or by writ ofjjpj,,,,,,,^,^,,^^^! 
 
 scirr/iicias. In the earlier Ontario cases, the remedy was gen- 
 erally enforced by ai^tion. (2) But in later cases the proceeding 
 is bv sdre/acia!:. (3) This is the proceeding adopted in England. 
 (4 I l>ut the lanf;ua,i,'e of the English Statutes, relevant to this 
 point, differs from ours in that leave must be obtained from the 
 judt;c. in addition to the return oi nulla boiitt, before the action 
 can be taken against the shareholder. In the leading Ontario 
 case, al)Ove mentioned, (5) it was decided that while in such 
 cases scire fitcias was the appro])riate form of proceeding against 
 a shareholder within the juri'-diction, it does not follow, seeing 
 the particular phrasing of the Act, that an action which is not 
 scirr facias \.ill not lie. 
 
 In Quebec tiie .action is begun by' a writ of summons in the 
 ordinary form. 
 
 '■iS. ^VIlile iniynicnt in good faith by a shareholder to judg- Defences.— 
 ment creditor is, for the purposes of the y\ct and to the extent of P-'^ym'^nt- 
 the payment, a good defence to an action by another creditor 
 of :he corn])aiiy, a merely colourable payment, e.g. to a trustee 
 for the defendant, will not avail. (6) 
 
 It was held a good defence in an action by a creditor of the 
 company against a municipal corporation, a shareholder in the 
 
 O) Brice r. Miinro, 12 Out. App. Rep. 453. (1886), and see Jenkins v. 
 Wilcock. II U. C. C. P. 505. 
 
 (2^ Moore c. Kirkland,5 U. C. C. P. 452; Jenkins c. Wilcock, 11 TT.C. 
 C. P. 505; Tyre r. Wilkes, 13 U. C. K.482, 18 U. C. R. 46 and 126. 
 
 (3) Gwatkin r. Harrison, 36 U. C. Q. 15. 478; Page v. Austin, 26 U. 
 C. C. P. no. 
 
 (4) Lindley Conip. 290. 
 
 (5) Brice r. Munro, I2 Ont. App. 455. 
 
 (6) Xasmith r. Dickey, 42 U. C. Q. 15. 450; 44 Q. B. 414. 
 

 '> 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 \,\J US, "^ 
 
 ^^ Ui lyi |2.2 
 
 I I.I i/- i^ 
 
 11.25 iU 11.6 
 
 Photographic 
 
 Sciences 
 
 Corporation 
 
 S3 WIST MAIN STRUT 
 
 WfBSTIR.N.Y. 14SB0 
 
 (716)8;3-4S03 
 

rr' 
 
 :!i 
 
 54 
 
 The Railway Law or Canada. 
 
 Defences. — 
 
 Cessation cf 
 Compoiiy. 
 
 Defences. — 
 Non-pcifiii- 
 mancc of con 
 ditions. 
 
 coni])any, ihat in liursuar.ce of an agreement at the time of sub- 
 scription, the municipal corporation had paid for their stock to 
 the contractors oi ilie road as llie road progressed, said contrac- 
 tors having a 999 years' lease of the road, and having mortgaged 
 their lea^e to trustees to secure jjaynient to such municipalities 
 of 6 jier cent, on tlie sums subscribed by them. (:) 
 
 Where in sucii action llie defendant ])lcadcd that, before the 
 commencement of the suit, the railway company sued him for the 
 same monies, and that after being served with the writ of sum- 
 mons in tiial case, and before declaration in either case, and 
 after the commencement of the suit, he jiaidthe com})any in full ; 
 it was held no defence, as it was not averred that such payment 
 was made in ignorance of plaintiffs claim. (2) 
 
 21). The cessation of a company, by non-i)crforman<e of the 
 conditions of its chaiter within three years, does not extinguish 
 its liability or that of its stockholders to pay the delHs contracted 
 during its existence, (3 ) 
 
 J50. Irregularities in the nomination or ap])cinlmcnt of direc- 
 tors will not discharge the liability of the shareholders. (4) Where 
 a subscription is conditional, and the condition has not been 
 performed, a judgment creditor of the company has no action 
 against the holder of such shares; (5) unless the condition was 
 ////ra Tires the company or its representative, or where the 
 shareholder has made a payment on the shares, or has otherwise 
 made himself liable as a siiareholder. (6) 
 
 Defendant had signed the stock book of the company (or 40 
 shares, but he alleged that this was done ui)on the faith of a 
 verbal agreement with a provisional director and chief promoter 
 of the company that defendant and another should receive the 
 contract for building the road. There was no proof that defen- 
 dant had received any foimal notice of tlie allotment of shares, 
 but iie paid 10 p.c. thereon, because, as he alleged, the prcvi- 
 
 (1) Woodruff r. Corp. of Town of Peterboiougli, 22 U. C. Q. b. 274. 
 
 (2) Tyre v. Wilkes, 13 U. C. Q. B. 482. 
 
 (3) Rayr. Blair, 12 U. C. C. P. 257. 
 
 (4) Kylandr. Ostell, 2 L.C.J. 274; Ross c. Can. Agr. Ins. Co., S L.N. 23; 
 Windsor Hotel Co. ». Lewis, 4 L. N. 331,26 L. C. J. 29 (Q. B. 1881). 
 
 (5) Rodgersv.Laurin, 13 L.C.J. 175. See subscriptions,conditional,xH/;cc. 
 
 (6) Wilson V. Ginty, 3 O, A. R. 124. 
 
 %\ 
 
Shares and Sharf.f{oldf,rs, 
 
 II 
 
 sional director told him that he would not get the contract unless 
 he paid it. He also attended a meeting of the sliareholders, 
 and seconded a resolution granting an allowance to the directors. 
 It was held, that the payment of the lo p. c. made him a 
 shareholder, and that he could not repudiate his liability on »hc 
 f'round that he had not bee., awarded the contract, for the pro- 
 visional director had no power to bind the company by annexing 
 such an agreement to his subscrii)ti()n. (i) 
 
 A shareholder in subscribing for stock gave the manager of 
 tlie company a power of attorney to subscribe for him ten shares, 
 such power of attorney containing the words "and I herewith 
 enclose lo p.c, tiiereof, etc., etc." Tlic lo p.c. was not enclosed, 
 altiiougli the amount was placed to the credit of the share- 
 holder on liie 1 .'(iks of the company. In an actinn against 
 the shareholder by creditors of the compnny for contribution, lie 
 pleaded that tin sum to liis credit was for prcjfcssiunal services to 
 the company, and that tliere was an arrangement llial his stock 
 was lu b(, paid for by siuii services. Tlie Court held thai he 
 was bound lo con!ril)Ute. (2) Where a ])erson was requested to 
 lake shares, and ol)iccted on the ground that there was unlimited 
 liability, but was afterwards persuaded to contribute, uiion the 
 assurance that a Bill was to be passed through Parliament to 
 limit the shareholders' liability ; and paid the deposit, but after- 
 wards refused to pay calls ; and the 15ill promised iiad not been 
 passed, Imt he siibsecpienily agreed to pay a certain call provided 
 his name was struck off the list of contributories ; and the company 
 was subsequently wound up, and his name put on the list of con- 
 tributories ; it was held : that it must be removed therefrom ; 
 that the directors had had the power to make a compromise of 
 a disputed claim, and this case came .within their power, and 
 that power had been /5<?«rty?fl'f and rightly exercised. (3) 
 
 31. The failure of directors to make calls has been held to DefcncL's.— 
 be no defence to an action by creditors, (4) nor irregUi».rities li regularities. 
 in the nomination or appointment of directors. (5; 
 
 (1) Wilson r. Ginty, 3 O. A. R. 124. 
 
 (2) In re. Standard Fire Ins. Co. (Caston's rase), 12 S C. K. 644. 
 
 (3) Dixon ». Evans, L. R. 5 E. & I. App. 606. 
 
 (4) Cockburn t'. Starnes, a L. C. J. 114 (S. C. 1857). 
 
 (5) Ryland it. Ostell, 2 I,. C. J. 274 ; Cockburn v. Tuttle, 2 L. C. J. 285 
 (S. C. 1858). 
 
 
56 
 
 The Railway Law ok Canaua. 
 
 Defence*.— JJISJ. Unless a company is specially authorized by its charter, it 
 
 Shares remit i 
 e<Uo company 
 
 Shares remiti - j.jj„j.,q^ reduce its capital nor buy its own shares, nor accept 
 
 l)cfL'lK'CS. 
 
 Shares ac- 
 (|uircil as paii 
 up. 
 
 Defences. — 
 No notice of 
 allotment. 
 
 a remission of them from the shareholders. Such acts are ultra 
 T'/ifs, and do not free the sliarcholders from liability towards 
 creditors of the company. ( i ) 
 
 lili, Wliereshares are acquired in good faith as fully paid up, 
 wiilunit any notice from the transferor that they are not so, the 
 holder will not be liable to the creditors of tlie company for the 
 amount unpaid. (?) .And if shares are taken in the course of 
 business for valuable consideration, the burden of proof lies on 
 the jierson who asserts that he who took the shares had notice that 
 they were not actually paid up. (3) 
 
 ',IV, Wiiere the subscription is to a company about to be 
 organized, it may be a defence that there was no allotment of 
 sliares with notice thereof within a reasonable time, to constitute 
 the subscriber a sharcliolder within the meaning of 'J'he Rail- 
 way Act. (4) 
 
 Defences.— Hit, In an action against defendant as a stockholder for unpaid 
 
 1 ^^f "1 1 slock, it api)cared tiut the <lefendant signed the stock book, which 
 snarelioliler. > 1 1 o 1 
 
 was headed by an express .ij,'reement by ilie sub.scribeis to be- 
 come sliareholders of the stock for the amount set opposiic their 
 respective names . and upon allotment by the company " of my 
 
 (1) '<oss r. Kiset, S Q. I.. R. 251 ; sec .ilsj Ross ?. Dusablon, 10 <J. I,. K. 
 74 ; Ross r. Wortliinston, 5 1.. K, 140, as at p. 43 ut/'/ii. 
 
 (2) Shares were allolie!l by resolution of directois amonj; themselves at 
 III per cent, tliscoun'., tlieir tlien .siipposeil value, and scrip issued as fully 
 paiil up. G. acijuireil shares under tliis arrani^ement, and sold to defendant, 
 representing thetn to be fully paid up. Defendant incjuired of the secretary 
 o( the company, who also mformeil him that they were fully paid up share!-, 
 and he accei)tcd them in good faith as such, and about a year later became 
 a director of the comp.iny. The shares appe.ired as fully paid up on the trans- 
 fer books, but the true state of the cp.se could have l)een ascertained by refer- 
 ence to the edger or Journal, whilst on each counterfoil in the share book 
 the amount mentioned was: — .Shares, two at $300 = $600. 
 
 //c/i/ (reversing judgment of Court of Apjieal for Ontario, i O. A. R. i) : 
 that a i^rson purchasing shaes in good faith, without notice from an original 
 shareholder, under 27 and 28 \'ic. , ch. 23, as shares fully paid up, is not liable 
 to an execution creditor of the company whose execution has lieen returned 
 nn//n liciia for the unpaid amount of said shares. McCracken r. Maclntyre, 
 I S. C. R. 479. 
 
 (3) Hurkinshaw r. Nicolls, 3 App. Cas. 1004. 
 
 (4) Nasmilh v. Manning, 5 S. C R. 417. ytde su/ni, p. 36. 
 
 HI 
 
Shares and Sharehoi-drrs. 
 
 57 
 
 or our said respctlivc shares," they covenanted to pay lo per 
 rent, and all futuie calls. The directors passed a resolution 
 directing the secretary to issue allotment certificates. The secre- 
 tary prepared certificates, and they were delivered to the com- 
 pany's broker to deliver to shareholders. It did not appear 
 that the certificate was ever delivered to defendant, or that he 
 was ever expressly notified of the allotment, and he never paid 
 the 10 per cent. He received notices of c.ills to wliirli he paid 
 no attention. 'Ihe evidence showed that he did not consider he 
 \v;.s entitled to any notice, and that he based his belief that he 
 wriS not a shareholder simply on the ground that he had not paid 
 the 10 per cent. It was Held (affirming 43 IT. C. Q. B. 22): 
 th.'it the evidence was sufficient to prove that knowledge of the 
 accejitance of his offer by the company had reached the defen- 
 d.ini, and that he was therefore lii.ljle as a shareholder, and that 
 it was not /////•</ ;•/;■(>• of the directors to take his subscrii>lion 
 Without rceiving the ten per cent, thereon, (i) 
 
 .*«». Wliere material change is made in the capital of a com- l)i fences.— 
 
 ti.'inv, and there is no acquiescence or laches on the part of the ^''*"S* "' 
 ' - ' ' . ' capital. 
 
 si:bs<riber, he cannot be held liable as a contributory. (2) 
 
 Wi. lunorance of differences between the memorandum of I'ofinces.— 
 
 association and prospectus is not a good defence after failure '^'^'^^'j'^'j^^.^ij^'^'' 
 
 of tlie ( ompany, where the defendant nught have discovered the of .association 
 
 ami inospec- 
 
 llis. 
 
 difference with proper diligence. (3) 
 
 (1) Denisoii c. l.olie, 3 ( ). A. K. 5 ;6. 
 
 'Z') Stevons r. Ihe I ."lulon Steel Works Co. (Delano's Case), 15 < '. R. 
 75. In this case one 1>. sifjneil hisname as a siil)scii!)er for a certain nunil)cr 
 of <!iares ?\ the foot of a piosiH-ctiis of a i>ropose(t company, in \vhi':h it was 
 str.tci.1 that ,.ic capital «a-to lie $75,000. Without I).'s kno«leilj;e or aC(|Uies- 
 ct.nce,tlii' coni|Kiny a> afterwards incorporated, had a capital of $1^0,000. 
 \\\ accordance with the lerni'. of the subscription, and liefore the incorporation 
 of the comiiany, I), paid np lialf the amount of ins shares. There was no 
 a!K)tm( nt of slock to I)., no entry of iiis name in any stock book, and no acting 
 «ir his part as shareholder. 'Ihe company being in process of liquidation it 
 W.1S claimed that I), was a contributory. 
 
 Held : that the change made in the capital of the company was a m.iterial 
 one, and there Iming no acijuiescence or laches on iJ.'spart he w.is not liable 
 as a contributory. 
 
 (■3) Oakes c. Turquand, I.. K., 2 II. of I.. 325. 
 
 \\\ May, 1864, A. published a prosi)eetus of a proposed comjiany, and H. took 
 shuresin it, and paid the first deposit, and a memorandum of articles of Associa- 
 tior was registered in June. After inquiry instituted by U. in December, 
 
58 
 
 The RAit.wAY T.aw or Canada. 
 
 I'cfi-nce*. — 
 Ultra vires. 
 
 Dffcnces.— 
 I'rautUilcnt 
 misrcpii'senta 
 liuii. 
 
 i 
 
 Dcfences.- 
 lorfi-ituie. 
 
 HH, A company incorporated with p<iwcr lo increase by by-law 
 the capital stock of the company, as soon as l»ut not before the 
 orif,'inal stock was all allotted and paid up. assumed to pass a l)y- 
 law increasing the capital slixk lufore tlie original amount had 
 been paid up. In an action by thr creditors aj^'ainst a subscriber 
 of the new capital stock, it was //fA/ (reversing the judgment of the 
 court below) : tiiat the by-law so p.iss/d liy the company being 
 u/Zra zwrrs, liie alleged shares of liie defendant had not any exis- 
 ten«:e in law, and therefore that the i)laintiffs h.ad failed to estab- 
 lish that the dcfend.Tnt was a shareiiolder witliin the >;atute, (i) 
 anil conscfjuently they were not entitled to recover. {2} 
 
 HiK Where by friudulent misrei)rescntation.^ of the directors, 
 . or by their fraudulent concealment of f.icts, a peison is drawn into 
 a contract to purcl.a^e siiares in a company, the directors cannot 
 enforce the contract against him, and he m.iy rescind it, but he 
 must do so witiiin a reasonable time, i t,) Nor can the directors 
 set uj) th;it he nn'^lit have known th ■ truth by proper i-ni[uiiy, '4) 
 
 4(), On the 14th May, 185,^ the directc-rs of a company jiassed 
 a resolution, declaring that the shares mentioned in a schedule, 
 intended to be anne\e(.l, had become forfeited tor non])ayment 
 of a call made on the previous 21st Jan., and should be sold on 
 the 2:stjune, imlcss jireviously redeemed. The co )any had 
 not afterwards treated defendant as a shareholder, n. r had he 
 acted as such. The resolution for the sale of the stock had not 
 
 1S64, he )i.ii(l .1 funlier i!f[><>sit, arnl .in .ipplicilion w.is .ifterwanis riLiiic by a 
 third p.nrty to wind up the comiwiiy. In January, isr)5, It. applied for and 
 ol)lainod an order to have his inme loniovi'd from the rfj;isler of the company, 
 upon ilie ground tliat the memorandum varied in many respects from the 
 prospectus, so .as, ii. fact, to constitute a totally ilifTerent undertaking, and 
 alleged that till DeccmlKT, 1864, he h.id never known of the two documents. 
 
 Held: that an application by A. to rescind the order for the removal of 
 H.'s name h.ad lieen rightlv refuse I by the Court lx;lo\v. iJowes v. .Ship, 
 I.. R.,3 H. of L. 343. 
 
 (1) 27-28 v., cap. 23. 
 
 (2) Page et al. v. Austin, 7 O, A. R. I, confirmed in Supreme Court, to 
 S.C. R. 132. 
 
 Where an action is brought against a shareholder in an incorporated joint 
 stock company, he may plead a non-compliance with its Act of incorporation, 
 and that by reason of such non-compliance the company is not legally ia 
 existence. Que. & Richmond Ry. Co., i I.. C K. 366. 
 
 (3) Oakes v. Turquand, L. K., 2 H. of L. 325. 
 
 (4) Venezuela Ry. Co. v. Kisch, L. R , 2 II. of I.. 99. 
 
M 
 
 Sharks and Sharkhdldf.rs. 
 
 59 
 
 been acted on by the company, a statute liaving passed before 
 the day named for sale, making; new provisions as to forfeiture or 
 abandonment of shares wiiicli had not been complied witli. It 
 was held that the defendant was still liable as a sJKUcholdcr. (i) 
 
 41. In Quebec, under art. 1716C.C.. an ;tj,','nl wlio subscribes I KfLiiccs.— 
 stock in a company in his own name is li;d)le to creditors of tin ^' '""''■ 
 company as a shareholder, without prejudice to the creditors' 
 rights against the principal also. (2) 
 
 4*^. It has been held in ()ucbec that notwithstanding the iv-ft-'nces.- 
 transfer by the shareholder of his shares previous to the institution '='"^'^'- 
 of the action by the creditor, the latter could recover if the debt 
 accrued and became due while the shares were in the shar.-holder's 
 name in the company's ijooks. (3) 
 
 4;{, Rut this would seem to be contrary to the general prin 
 cii)les regarding the freedom of the right to Iraiisler previously 
 enlarged upon, (4) and it wcnild seeju more in accordance with 
 principle and the la'iguage of the Act, to say that the liubilit) 
 accrues only when execution against the company is returnee! 
 unsatisfied. (5) 
 
 44, In an action by a creditor against a shareholder of unjxiid liefL-ncei,-.— 
 stock in a cotupany incori)orated under 32-33 Vic, ch. 13 I), it |?|;'"'^'<=''^'<-' *'-'''• 
 VMS held that a shareholder, imder a plea that the judgment was 
 obtainetl by fraud, was entitled to set up a defence that the com 
 pany had not in the original suit been served with process, under 
 sec. 50, the person served as secretary not being such oflicer. (6) 
 
 46. Entry of shares in the stock book by the secretary of the i>cfcnces,— 
 company upon a verbal promise of the defendant, but in hi-^ ' " '^'^^" '^^'^ ' 
 absence, is not sufficient to charge him. (7) 
 
 Appellant was solicited to subscribe for shares, and paid $500, 
 and signed his name to a subscription book, the columns of 
 
 (1) Smith V. Lynn, 3 U. C. Error & Appeal R. 201 (drant). 
 
 (2) Molson's Bank v. Stoddard, M. I,. R., 6 S. C. iS. 
 
 (3) Cockbum «. Beaudry. 2 L.C.J. 283 (S. C. 1858). 
 
 (4) supra p. 42 ft seq. 
 
 (5) Nixon V. Brownlow, 3 H. & N. 686. 
 
 (6) Harvey v, Harvey, 9 O. A. R. 91. 
 
 (7) IngersoU & '1 he Thamesford Grnvel Road Co. r. McCarthy, 16 U. C. 
 Q.B. I6a. 
 
6o 
 
 The Raiiavav Law ok Canada. 
 
 I 
 
 Defences. — 
 Set- oil. 
 
 aniouul of suliscription and number of sliarcs being at the time 
 left in blank. These cohimns were afterwards filled up for 50 
 shares by an agent of the company in appellant's presence, but 
 without his consent. Appellant then tried to be relieved from 
 the surplus shares without success ; and later on received a divi- 
 dend on the i)aid u|) capital, and gave a receipt. Upon an action 
 to recover calls on 50 shares at $100, alleged to have been sub- 
 scribed, it was held that the evidence shewed that the appellant 
 never contracted to take 50 shares, and that the recei|)t given for 
 the dividend or amount paid in was not an admission of the lia- 
 bility for a larger sum, and he was not estopped, but he was 
 never in fact holder of 50 shares, (i) 
 
 •16. It is a (|ueslion as to whether, under the Act, the share- 
 holder can plead the com|)any's indebtedness to him as a sel-ofT 
 against the unpaid balance of his stock, in an action by the 
 creditor. In Quebec the question has been considered in the 
 case of liyhiiiJ v. Dclisle^ (2) where it was held that, as no calls 
 in respect of llie unpaid stock held by the defendant had been 
 made, the provisions of .Arts. 11S7-118S of the Civil Code 
 did not aii])ly, and that the compensation (set-off) had not 
 taken place between the defendant's indebtedness as a shareholder 
 and the company's indebtedness to Iiim. In this case the com- 
 jiany were indebted to the defendant for salary as president in a 
 sum e.Kceeding the amount of his unjiaid stock. But under Art. 
 1 188 of the Code, the debts, in order to be compensated, must 
 le "equally liipiidated and demandable." Until calls had been 
 made by liie directors, and the i>roper interval of time allowed 
 to lajise before they would become due, payment could not have 
 been enfoned, and therefore the debt was not • demand.-xble." 
 On the oUier hand, the defendant, at tiie time the creditor '.rought 
 his action, had a right to proceed against the company and recover 
 ]iayment of the tum due by them to him for salary ; but the 
 comjiany could not have set up as against that action any 
 counter-claim which they might have had in respect of his being 
 a shareholder. The debts, therefore, did not exist " simulta- 
 
 (1) Cold r. Stadacoiia Ins. Co., 6 S. C. K. 193. 
 
 (2) 3 I.. R. P. C. 17; 6 Moore \\ C (N. S.) 225 ; see al 
 Dock Co., 7 Giant's Chy. 450. infra p. 63. 
 
 Iso Harris w Dry 
 
Shares and Shakeholders. 
 
 6 1 
 
 neoiisly," and the Privy Council held (i) that the creditor had :i 
 right to recover from the shareliolder everything that was diiL- 
 from the shan holder to tlie company which was not acliialiy 
 paid, discharge I or extinguishi'd, and that, as thciL- was no com- 
 pensation as bt iwcen the shareholder and the < nm|)any, there was 
 consequently no extiuj^uishmcnt of the debt. ^2) 
 
 Decisions under tlie Knglish law en this point arc hardly 
 applicable here. The Companies' Arts contain a clause (luite 
 similar to sec. 86 of The Railway Act ; but in (jnlcr to do away 
 with diflicultics, arising through tiie procedure incident to this 
 section, certain clauses were inchided in llio winding up Acts. 
 Jiul our winding up Acts do not apply to railway » oin|.anies, 
 while those in lOngland do. 
 
 The case in which this [ioint seems to have been considered 
 most seriously in Ontario is that of .lA/r/W// v. Smart, (3) which 
 decided that a shareholder, in an action against him by a judg- 
 ment creditor of \.\w comjiany, could not set u{i, in ecpiity. a debt 
 due to him l»y the company before the judgment was rc< overed. 
 This -ase was very thoroughly considered, and is supported by 
 an Knglish case, which holds to the same effect. (4) In that case, 
 Cockburn, C. J., saiJ : '* What answer is it for tlie shareholder 
 to say : 'The company is indebted to me as well as to you' ? 
 The one party has a judgment against the company ; the other 
 a mere right of set-off." And Draper, C. J., in the Nlacbeth case, 
 said : " Admitting, for argument's sake, the equity alleged to arise 
 from Macbelh's position and dealings with the company to the 
 fullest extent, I cannot understand that it is to prevail over a legal 
 right conferred by an cxjiress statute." (5) Again, it was par- 
 ticulatly pointed ou* in the Privy Council in Rylaiulw Pe/'s/<-, (6) 
 that the creditor under the Act is in a dilterent position 10 tliat 
 of the company. Draper, C. J., who voiced the same idea in 
 Madut/i V. Smart, said : "Smart doesjiot derive the power or 
 
 (1) I'c-r Lord GitTarcl, 6 Mnore N. S. at j). 235. 
 
 (2) J/(U : iliat a shareholder of an insolvent raiiw.iy corporalion c:uinut 
 olTur a debt due to hinj by the corporation, whatever nir.y be the character cif 
 such del)t, in compensation to a claim made aj^ains* him t)y the creditor of 
 the company under C. S.C, cap. 66, SSo; Ryiand c. Roulii, I 1,. C. 1. I. 
 114 (1868). 
 
 (3) 14 Grant Ch. 298 (1868). 
 
 (4) Wyait V. The Darenth Valley Ky. Co., 2 C. B. N.S. 109. 
 
 (5) 14 Grant Chy, at p. 313. 
 
 (6) 6 Moore N. .S. at p. 235. 
 
62 
 
 Thk Railway Law or Canada. 
 
 
 •i 
 
 I ight to have recourse for the piymcnt of his debt to the share- 
 holders by or tlirough the company, for tlie statute does not 
 give it to the company, but to their creditors. It is not, llicre- 
 tbre, to my apprehension a sound view to treat him on the footing 
 of an assij^nce of the company, deriving his rights only from 
 them." (i) 'I'he reasoning and principle of Maibeth v. Smart 
 were fully adopted by (Iwynnc, I., then of the Ontario Court of 
 (Queen's IJench, in tiie CA\?,iioi JJcnner v. Currif, (2) which was a 
 still stronger case, for there defendant had himself recovered 
 juilgnKiit against the company, on which a fieri facias had been 
 returned ii,:lla bona. The court said that the plea formed no 
 defence, for '.he plaintiff was not claiming in right of the comjjany, 
 but by virtue of a specific statutory remedy; and the decision 
 of Macbeth v. Smart \s<\?> in principle applicable, notwithstanding 
 ihc tad of defendant havin^^ a judgtnent and execution. Again 
 in McGrc\:,or v. Ciirric, (3) llagarty, C. J., of the Ontario 
 Common IMens adopted the reasoning of both Maibeth v. Smart 
 and Junncr v. Currie, and also the Quebec case of Ryland v. 
 Ddisle. (4) 
 
 The latest case in which the juior Ontario decisions were 
 referred to is that o{ Fiehi \. GaiUncay. (5) lUit the (ourt found 
 that it was not necessary to discuss the principles of these deri- 
 sions, fortius was the case of an insolvent company which had 
 made an assignment of all its assets to trustees, and was sul)ject 
 to the winding up Acts ; and, further, the Ontario Act, 
 governing liie company, [)rovided : " that any shareholder may 
 plead by way of defence in whole or part any set-off which he 
 could setup against the company." Rose, J., however, at the 
 trial followed Macbethv. Smart ; though Wilson, ('. J , silting in 
 Banc) said : '• It is not necessary to discuss upon what principles 
 the case of Macbeth v. Smart, and other analogous cases 
 rtfeired to, wire decided. 1 am inclined to think it will be 
 found that, so far as they may be supposed to rest upon the 
 application of the winding up Acts to them, they are not sustain- 
 
 (1) 14 Gr. Chy. at p. ^14. 
 
 (2) ^,6 U. C.Q. B. 41'! (1875). 
 
 (3) 26 U. C. C. P. 55 ('876). 
 
 (4) 3L. R. P. C. 17. 
 
 (5) 5 O. R. "502 ; and see Nasmilh v. 
 
 H; 3 A- '^. *^- «■-• '/• 
 
 (5) 5 O. R. 502 ; and see Nasmilh v. Dickey, 44 U. C. Q. B. 414. 
 
Shakes and SHAREiiotnERs. 
 
 6j 
 
 able, although they may be maintainable upon other {^rounds." 
 But the winding up Acts do not apply to railway compani(;s, and 
 therefore we must so far consider the Macbeth case and its atten- 
 dant cas'js to be- undisputed to the present date. 
 
 Calls. 
 
 47. The directors may, from time to time, make such calls Diiect.Hs may 
 upon the resjjective shareholders, in respect of the amount of "^*'**' 
 capital respectively subscribed or owing by them, as they deem 
 necessary, {^i) I ho enactment of a by-law to regulate the mode 
 in which the calls shall be made is not im])erative. Where no by- 
 law exists, the calls may be made as prescribed by thedirect)rs. ^ 2) 
 Where a trading company incorporated by statute becomes in- 
 solvent, one of the jjartiiers. being also a judgment creditor, is 
 entitled to a di< roe compelling the directors to make calls upon 
 the stock of subscribers, notwithstanding a clause in the statute, 
 declarii!g the shares of defaulters should be forfeited, the forfeiture 
 being cumulative to all other remedies to which a creditor is 
 entitled, (3) that is, so long as the powers granted by the s|)ecial 
 or general Act exist. (4) For exam])le, section 89 of The 
 Railway Act limits the time for the commencement and com- 
 pletion of the railway ; and provides thai, if those limits are 
 exceeded, the powers granted by the special or general Act 
 shall cease and be null and void as resjjects so much of the rail- 
 way as then remains uncomjjleted. It would, therefore, appear 
 thai rails could not be made for the construction of the uncom- 
 pleted part of the line where the conditions of section 89 have 
 not been complied with.. (5) The Legislature can, however, re- 
 vive the company's powers in regard to the uncompleted portion 
 of the line, by giving them through a special enactment a further 
 
 (1) Sec, 63. 
 
 (2) Tlie Kascony W. & C. Mfg. Co. v. Desniarais, M. L. R., 2 S. C. 381 
 In Review. 
 
 (3) Harris r. Dry Dock Co., 7 Grant's Chy. 450; see Ryland r. De- 
 lisle, discussed on p. 60 iupm. 
 
 (4) Wliere action is brought against a shareholder in an incorporated joint 
 stock company, he may plead a non-compliance with its Act of incorporation, 
 and that byre.ison of such non-compliance the company is not legally in exis- 
 tence. The Que. & Richmond Ry. Co. r. Dawson, i L. C. R. 366. 
 
 (5) Durable v. The reterborough & Lake Chenning R.R. Co.. I2 Grant 
 Chy. 74. 
 
i V 
 
 64 The Rau.way l.sw ov Canada. 
 
 lime to execute their undertakinj,'. And il)eir powers can he tlias 
 revived after lying dormant for years, (i) but the slock first sub* 
 scril)cd cmnot he regarded as extinguished f<tr non .iser (?) 
 Where sucli aineiided Acl recito tliat it has heen j^raiUed upon 
 the prayer of the parlies inteiested in lite original Art, it must 
 be taken iipniuhe leeital as cmichisive thai eacli inchvidual inter- 
 ested in ilif ()ii|;inal Act w i- < (tn< iirring in tlie passing oflJje 
 uinended A( t. (3) 
 
 Notice-. -48. At iiMst thirty days' notice. l>y piihlication in the manner 
 
 indicated hv section ji, shall he given uf each i:all. (4) Seetiwii 
 41 slates that a ropy of the (Jitze/ff cont.iinini; such notice 
 shall, on prodiiciion thereof, he evidence of the sulliciency ot 
 sucli notice. Ihit it has heen held (5 > ihat a (7<?:^/A' of the dale 
 of jSth M.n , containing a notice hearing date on tlie 1 3lh ot' 
 March of ilie same year, is not eviilenc* that notice of ihe liri; 
 call was given on the latter date ; — thai is to say, a Giiiftt/' 
 cannot he considered as giving notice anterior 10 the date of a-. 
 publication, nor as heing evidence of any notice of an earlier dale 
 than the d.ile of the Crirf//^ itself. The statute under which 
 ihis case was decided (6) is worded similarly to the ahove i orri?- 
 ponding section of our present Act. (7) 
 
 No call shall be made at a less interval tlian two niunihs 
 from the previous call." (S) (!alls made on the ist .Sepleinher, i.»i 
 Novemhcr, and isl January are not w'thin these requircmcnl.s. 
 (9) The months mentioned in the Act are of course calend.ic 
 months. JJetween the day on whicii the call is payable and the 
 
 (i) Toronto ^: I.aku Huron U.K. Co. c. Ciooksh.-inK, 4 I.e. \»,i:.. \\. $17. 
 
 (2) Ibiil.. 1'. 322. 
 
 (3) 11ml. 
 
 (4) Sec. 63. 
 
 (5; liul'lhlo, Itr.nntfonl ^: Goilcrich Ky. Co. c. I'.irki;, 12 I'. C '}. I'..6ii7. 
 
 (6) 14 & 15 Vic , cap. 51. sec. 16, ss. 24. 
 
 (7) It lias l)cen l/i'lJ : thai proof that notices claiming iniynient ot" the csli- 
 sued for were niaileil to sharelioKlers was sufficient evidence that micIi c%\U 
 were mace. Ross r'. Converse, 27 L. C. J. 143, <^>. IS. iSS;,. 
 
 (8) Sec. 63. 
 
 (9) Hutlalo, Uranlfonl & (Joilerich Ry. Co. r. I'aike, 12 U. C. Q. 15. 607 
 Port Dovtr & Lake Huron Ry. Co. r. iJrey, 36 U. C. (^). U. 425 ; Toronl(» 
 Gas Co. i>. Russel, 6 U. C R. 567; SlialfonlM: Morcton Ry. Co. c. Slraltoa, 
 aB. &Aa. 518. 
 
 M 
 
hllAKI ^ \M' SllAI;Hlli| IK. KH. 
 
 «s 
 
 date of ihc next i.aviiKiii llicro lllu^.l lie a ck.ir inlcival ol iwi. 
 calendar iiioiulis. (i) l>m dirt-' fors may m.ikc more u.ni one 
 call by rcsolmioii of the board. 
 
 Provided always llial no urealer amount be called in an) one 
 year ilian is i)iosciiin.d \<v iKc special Act. (2) 
 
 ■Ui. i'A' i> sliareiiolder vliall be liable to pay iheamoimiortlio I'ttvuRiit. 
 <-;)!l8 Ml niadi- in respcci of tlic sliares held by him to tl.c iicisons 
 and It the limes ami places from time to time appointed by 
 the company or the direciors. (\) 
 
 riuler an .\<;t wliich retiuired that stockliold<.r> siiniiid pay iiji 
 iheir shares "by such instalments, and at nucli limes and places 
 as the directors of the saitl corporation shall aiipoint," it was 
 held that, when llu- dire<lors passeil a resoliilinii oidermg a 
 call, but omitted lo specify the phue of paynient. and a notice, 
 signed by the managing dire(i(jr " by (irder," was published, 
 and a rin ular signed by him was sent lo each sharehoMer, in 
 wiiicii the jilace tif payment was named, but there was no meet- 
 in" of the directors Uiwcen the passing of the resolution and 
 the day named lor payment, in .111 action for this call, the above 
 omission was fatal. (4) 
 
 ( I ) Kv Sl.r|i.r> .Sii|i|.ly Co. (/// >,•), 2() Cli. 1). 204 ; Clnyis c. li.iiliiij;, 16 
 K. I.. 049; I'oil lover vS: l.akc Union Ry. Co. r.Uii;y,36 I'. C. <J. li. 425. 
 
 l'l;\inuir>, liy lln.ir Ait of iiicor|ior;Uion, wi-ii- aiitlioii/i.'<l to c.ill in tiu> 
 >loik 1)V iii^Liliiunt-., n>. lla- dirictois slioiilil appoinl, siilijucl to a iirovi>o 
 lli.Ti no inst.ilimnl >li.ill ixiicil 10 |'i.r cent., or In.' callfil for or Ikl-oihc |iay- 
 •ihli- in If-^ tlian 301i.1v- aitir piililic nolici' sliiil li.ivu lni.n ^ivcn in ^>iw or 
 more of iIr- -I Viral iii\v-iiaiKr> luiljli-iicd in i-vury ili-lrici \ilicii- >lock may 
 be iKl.l. 
 
 Holil.tlial llii' linn- lixcil for the |iayini-nl of in-l.ilnii.'nl-. nci'ii nol In- 30 
 'lays a|iari, Iml ilial iii>i.ilineiit> rninlii In' maili' iiayahji- at any time, prov- 
 i<lo(l no call i\cct'ilf<l 10 per cent., and 30 days iiaerveniii hclweii. liic date 
 of notiii' of till- call .ind tii.' da) on vviiicli it was payalilc. 
 
 'I'iiat no intalnuiit Could hnvfiilly lie made payaMc in less than 30 ilays 
 from till' day for paNiiiiiu of tiic nc\t jjivct'dinjj. 
 
 'Ihat notice of a call in one district |iiiblisiicd in a ne\v>paper i:> -iiffici-iit 
 to lender the shaieiiolder.i residing in that di>tricl liable to pay the call, not- 
 withstanding that the notice may not have been pnblished in other districts 
 whore stock i- held. Provincial Insurance Co. /■. Worts, 9 Ont. A.U- 56. 
 
 (2) Sec. 63. 
 
 (3) Sec. 65. 
 
 (^) Tlie Provident Life Assurance &, Invest. Co, c. Wilson, 25 U.C. (^.U. 
 53- 
 
 t 
 
»rii 
 
 66 
 
 raymcni liy 
 
 llOlf. 
 
 ,1 
 
 'I'liE Railway Law ok Canada. 
 
 FDrfeiturc for 
 non-|iayiiient 
 of calls. 
 
 no. It was licld in a New Bt inswick case, (i) that a railway 
 comi)any may take, and recover on, a promissory note given for the 
 amount of assessments due by a stcckholdcr on his shares, 'lliis 
 decision a]i])lies (//(?;7/('^/' to existing railways, jjecausc in that 
 case the comi)any iuid no express power to make or receive jjro- 
 missory notes, eic, whereas such j)ower is exjjressly granted by the 
 Dominion Railway Act, (2) 
 
 />!. Every jeison who neglects or refuses to jiay a ratable 
 share of the calls, for the sjjace of two months after the time 
 appointed for the jjayment thereof, shall forfeit to the company 
 his shares in the company, and all the profit and benetit 
 thereof. (3) 
 
 No advantage shall be taken of the forfeiture, unless the shares 
 are declared to be forfeited at a general meeting of the company, 
 assembled at any time after sucii foifeilure has been incurred. 
 (4) 
 
 (i) St. Ste] liens lirnnch Kv. Co. i: VAack, 13 N. 1!, Kep. 140 ; anil see 
 Redfield, Vol. i, p. iSi, ed. 1888. 
 
 (2) Sec. 98. 
 
 (t,) Slc. 80. 
 
 Held in accordance with Court of C. 1'.. that the com['any were not 
 restricted to the remedy by forfeiture, but nii{;ht sustain nn action against n. 
 shareholder upon calls to stock suliscrdied. Marmora I'oundryt'o. c. Jack- 
 son, c) (). ]'• 509, t)iilario; Marnioia I'ouiidry Co. r. Murray, i C. P. i, 29, 
 Ontario ; Marmora I'oundry Co, r. lioswell, I C. 1'. 175, Ontario, 
 
 A non borrowing member of a building society died intestate ; no one 
 administered for 3 years, and during interval the shares of society ran in arrear, 
 and the soci' tv during the interval declared them forfeite<l, and carried the 
 amount to ciedit of inofit and loss account. After the society was sup| osfd 
 to have I een wound up and the assets distributed, letters of adniinislratior, 
 were obtained, and apj)lication was made to the society to be admiltid as a 
 niendier, and refused. 
 
 Held: I. That the proccediiij.'s of the society to forfeit the shares in the 
 absence of a legal representative were illegal ; 2. That the plaiulili (adminis 
 tralor) was entitled to relief, and that the la]>se of time between Ihe attempted 
 forfeiture and the procuring of letters of administration was no answer to the 
 claim. Class ?■, Hope, 14 Giant's Chy. 484 ; in Appeal, 16 Chy, 4^0. 
 
 .Ste llariis r, Dry Dock Co., 7 Grant's Chy. 450. 
 
 (4) Sec. 81. \ 
 
 'I'o a declaration for calls under section 10 of plaintiff 's charter. 12 Vic, 
 cap. 16/1, defendant pleaded that by non payment of said calls the shares 
 became forfeited m pursuance of the statute, and that defendant actpiiesced in 
 such forfeiture of which plaintifT had notice. IJcUi : bad, for defendant could 
 not thus foifcit his shares. Ont, Mar. Ins. Co. v. Ireland, 5 U, C, C. 1*. 135. 
 
 11' 
 
Shares and Shareholders. 
 
 67 
 
 Every such forfeiture s'ntU be ar iiulemnit'ication to and for 
 every shareholder so forfeiting, against all actions, suits, or 
 prosecutions whatsoever commenced or jirosecuted for any 
 breach of contract or other agreement between sucii sluxrelioldcr 
 and tlie other shareholders with regard to carrying on the under- 
 taking, (i) 
 
 The directors may sell, either by public auction (2) or by pri- 
 vate sale, (3) and in such manner and on such terms as to them 
 seem meet, any shares so declared to be forfeited, or may 
 pledge such shares for the payment of loans or advances made 
 or to be made thereon, or for the payment of any sums of 
 money borrowed by or advanced to the company. Provided 
 that authority for si.ch purpose of the stork be first given at a 
 special general meeting of the shareholders called for the 
 purpose. (4) 
 
 .Although the Act gives to the company jjowcr to forfeit 
 shares fir non-payment, yet this i)o\vcr cannot be exercised for 
 the |)urpose of discharging stock subscribers from liability to 
 creditors, in case tiie company should jjrove a failure. (5) 
 
 (i) Sec. 82. 
 
 Tlic directors passed a resolution, declarinfj tlmt the shares mentioned in a 
 schedule intended to l)e annexed (l)ut whicli w.is not annexed) to the resolu- 
 tion, wiiicii iiad become forfeited l)y non-payment of a call, shcjuld be sold at 
 a ceitain date, unless ]ireviously redeemed, and the resolution for sale of the 
 stock had not been acted upon by tlie company ; in an action by a creditor 
 against a shareholder on the forfeit list, it was lield that the defendant was 
 .-till liable as a shareholder. 
 
 .Sniii.il r. Lynn, 3 U. C, E. ^c A. 201, see p. 59 supra ; see alsoFraser v. 
 Robertson, 13 U. C. C. I'. 184. 
 
 (2) Tiie shares of certain shareholders being forfeited by default to pay 
 tlie calls due tiiereon were oflered for sale by auction. 
 
 Hihi : that tlie omission to state in the notices of sale the amounts which had 
 been paid on the shares in question did not atTact the validity of the sale. Gil- 
 man r. The Royal Can. Ins. Co., M. L. K., i S.C I. 
 
 (S) ^^I'l'l ■■ incidentally) tint it is not absolutely necessary that forfeited 
 shares should be sold by public auction. A sale made in good faith and for 
 the .advantage of the eomp.any will not be disturbed, more esptcially when 
 the person who owned the shr . does not complain thereof. Oilman v. 
 RobertM.n et al. & the Royal Can. Ins. Co., M. L. R., I S. C. 11. 
 
 (4) See. 83. 
 
 (5) Morawitz Corp., § 857 ; Mills y. Stewart, 62 Barb. 444. 
 
68 
 
 I'hk Railway Law of Canada. 
 Viiissucd Hliares. 
 
 w 
 
 Sale of. 52. Sfclion 83 also empowers the di lectors upon the authority 
 
 of the ohareliolders to sell or pledge " any unissued shares," in 
 the same manner as forfeited stock. The power to issue the 
 slock so to be sold is given by the siuireholders in a special 
 general meeting convened. 
 
 This section would apparently authorize the directors to sell 
 forfeited or unissued sha'es at a discount; but if so sold wrong- 
 fully or fraudulently, the directors would be liable in damages 
 as for a breach of trust, (i) And the holders of such shares 
 would be held liable for their full par value, not only to creditors, 
 but on liquidation of the company to the ordinary sh.ireliolders 
 on adjustment of their rights ////tv se. (2) 
 
 But even where a statute expressly i)ri)hibits corporations from 
 selling their shares at a discount, the pledgee of stock can dis 
 pose of it at less than par. (3) 
 
 Pnid-iip Stock. 
 
 Issue of. .jJi. 'i'hc dire( lor:; may make and issue, as jjaid up stock, shares 
 
 in the company, whether subscribed for or not, and may allot 
 and hand over such stock in ]iaynient for right of way, plant, 
 rolling stock or materials of any kind, and also for the services 
 of contractors and engineers; and such issue and allotment of 
 stock shall be binding on the comi)any, and such stock shall not 
 be a.'sessablc for calls. (4J 
 
 (i) Hirsclie c, .Sims P. C. 28 July, 1894 ; JO Times L. R. 616. 
 
 (2) /// re. Time Tables I'liblishing Co. (Welton's case), 10 T. I,. K. 660. 
 But sec Ooretjuu) Miiiiny Co. r. Koper (1S92) App. C. 125. 
 
 (3) I'cterboioii 1 R. R. Co. r. Nashua it L, R.R. Co., 59 X. 11. 385. 
 (4; Sec. 39. illd see p. S8 ht/ni. 
 
 A company not registered under the Companies Act issued shares as 
 " fully paid up.'" and also cenific.TtfS of those shares, describinj; them as fully 
 paid up, and made the annual returns giving them the .same description. The 
 company enteied into a contract with G. to purchase a mill and machinery, 
 part payment for which was to be made to G. in " fully paid up shares. " They 
 were not, in fact, fully paid up, and tliere w as no contract with respect to them 
 such as is required by the Companies Act of 1867, § 25, G. received the 
 shares, and negotiated business with them, and gave B., from whom he had 
 purchased property, and who accepted them, a part of purchase money in fully 
 paid up shares. 15., having bought some property from N., purchase money 
 was paid liy B. to N. through a solicitor who acted for both B. and N. Tlie 
 property in question was then conveyed at B.'s desire irect from N. to G., 
 
 w 
 
1 
 
 Shares and Shareholders. 
 Dividends and Interest. 
 
 09 
 
 54. At the annual meeting of the shareholders of the company, I )ividemis. 
 a dividend may be declared out of the net profits of the under- 
 taking, (i) 
 
 Such dividend shall be at and after the rate of so much per 
 share (2) upon tlie several shares held by the shareiioiders in tiic 
 stock of the company, as such meeting thinks hi to appoint or 
 determine. (3) 
 
 'd 
 
 55. 
 
 Net earnings are ])roperly tiie gross receipts, less the Net profits, 
 expenses of operating the road or other business of the corporation. ^^ ' '^^'^' 
 Interest on debts is paid out of what thus remains, that is, out 
 of the net earnings. Many other liabilities are paid out of the 
 net earnings. When all liabilities are paid, either out of the gross 
 receipts or out of the net earnings, the remainder is the profit of 
 the shareholders, to go towards dividends, which, in that way, 
 are paid out of the net earnings. (4) 
 
 and 200 sli.iR's hcKl by G. were handed over to X., who, however, s.vore tliat 
 he only received them as trustee for 15. N's name wa;; registered as iiolder of 
 the shares on Company's books, and he at once sent a proxy to G. to vole 
 .at a general meetint;, describing liimself as a shareholder of the company. 
 The certificates of these shares were given to B. himself. Tiie company was 
 orde ed to be wound up. Held: that, under the circumstances, N. was not 
 hable to be placed on the li^t of contributories in respect to the 200 shares. 
 Held, also, that if shares are taken in the course of business for valuable con- 
 sideration, on the perso-.i who asserts tlia*. he who took the shares has notice 
 that tluy were not actually paid up, lies the burden of proof i,f that notice. 
 Burkinshaw in Nicolls, !-. R., 3 App. Cas. 1004, II. L. (E). 
 
 ( 1 ) Sec. 69. 
 
 (2) The capital of a com]iany incorporated under the Acts of 1862 and 1S67 
 consisted of 60,000 shares of £ i ; 40,000 were fully paid up, and 20,000 to the 
 extent of oidy 5s. per share, liy the 71st .\rticle of Association the directors 
 may declare a dividend to b; paid to the members in proportion, to their 
 shares, liy the definition clauses, the word "capital '' was declared to mean 
 the capital for the time being of the company, and the woid " shares '' the 
 shares into which the capital is divided. In a question whether tlie directors 
 could competently recommend a dividend payable to each shareholder in pro- 
 portion to the amount paid up on the shares held by him, Held: affirming 
 the decision of the court below, that such a declaration of dividend was in- 
 competent, l)ecause, upon the true construction of the articles of association 
 read with the Act of 1862 and 1867, all the shares were entitled to participate 
 equally in the dividend, without regard to the amount paid up upon each. 
 OakbankOil Co. «. Cruni, L. R., 8 App. Cas. 65. 
 
 (3) Sec. 70. 
 
 (4) Blatchfield,J.,inSt. John i\ Erie R.R. Co., 10 Blatch 271. Affirmed in 
 the Supreme Court of the United States, 22 Wall (U.S.) 136. 
 
 i 
 
70 
 
 The Railway I-aw oi" (Canada. 
 
 
 Tlic word "liabilities" lias been exieiided to embrace not 
 only (Ubts already matured, but those which exist but have not 
 matured. 'I bus, where a corporation had on hand $36,000, its 
 Hoaiing debt was $1,000. and the funded debt payal)le in seventeen 
 yeais ai 6 jier cent, was $75,000 . the yearl>- < urrcnt exiicnses, in- 
 cluiiing interest on landed debt, was about $10,000, and the cor- 
 ])oration had no innnediale need of the suriilu^ on hand, orofits 
 earnings, except to pay the cinrent expenses ; in an action by a 
 slockhol ler to compel the corpoialioii to declare a dividend, it 
 was h.eid that in sue h a case the court would not comjiel the 
 directors to declare a dividend; (i) but if the directors, in 
 the exercise of their discretion under such a state of facts, should 
 declare one. the courts would not restiain its payment ui)on the 
 ground that unmatured debts existed, cs|)ecially where such dei)ts 
 have a considerable period to run, and there are no evidences of 
 fraud ; because the directors themsi Ives are the best judges as to 
 the state of the business of the corporation and its prosjjects for 
 the future. (2) The above New Vork case was largely decided 
 on the groiuids of the .American doctrine, that a corporation is 
 the trustee of its creditors, but not of its stockholders, and tliat 
 therefore the creditors have a better right to the funds which the 
 corpor.ition hold for them in trust. 
 
 The term '' net i)rofits " has been held to mean net earning-- after 
 dcductin.; current working exiienses, without ii.citiding interest 
 on money borrowed. (3) but a better definition is thought to be, 
 that which rein.iins after deduction of all charges ;ind every out- 
 lay. (4) I'rfdits have also been tersely defined by very high 
 authority to be the incomings of a concern after deducting the 
 expenses of earning them, (5) and iierluijjs tlie clearest and 
 most accurate definitioii is that given by Kekcwich, J., in a 
 partnershii) case, (6} namely, that net pr()fils is the sum divisible 
 
 (1) Kcirnes r. Rochester, etc., U.K. Co., 4 .M)h. I'r. CN. V.) N. .S. 107. 
 
 (2) Wood \<y. \.A\v 167 
 
 ( T,) (Joiry 1: l-oiniondeny. etc., Ry. Co., 29 lle.iv. 263. I'.rice, ultra vires 
 (Green), 195. 
 
 (4) Cook, .Stockholders 546. \'a'.. of 1SS9. 
 
 (5) Meisi-y Docks r. Luc.is, 8 App. C.is. (jo;. 
 
 (6) Glasior r. Rolls. I,. R. 42 Ch. IJ. 453 ; ami see liirch r. Cropper 14 
 Aiiji. Ca--. 525. As to Working out ]irofit and loss account, see liuckley Coy's. 
 4S6 ; and tlie remarks of ilie Lord Ciiancellor in Mills i\ Northern Ry. of 
 liuenos Ayres, L. R. 5 Ch. 621, 631. 
 
1 
 
 Sharks and SuAkr.iioi.DKRs. 
 
 71 
 
 after dischargini; or making provision for every outgoing proper- 
 ly clia'geable agniiist ihc jieriod for wliicli the profits aie cal< u- 
 laled. 'J'lie power of scaling questions of the kind is gen<.'r.illy 
 entrusted to tiie directors, witii or without liie sanction of thr 
 shireliolders : but luider sec. 54 liie declaration of dividends in 
 the case of railway cmipanies is clearly the act of the share- 
 holders, (i) -Apart from the limit placed on all powers ot 
 directors and shareholders by llie doctrine of ultra vires, if , 
 th-.-re be a difference of opinion the voice of the mijoriiy must 
 pr-'vail. (2) 
 
 ."56. Tin; majority can decide whether a dividend shall be I-intii'ity of 
 paid before some particular debt is discharged. (3) p.'.'yment -if 
 
 Cut this is always subject to the liability of t!ie directors in divideiKls .mt 
 damaf^es or otherwise for payment of dividends not justified by ° ^"'1" 
 ll-.c iirofits or out of capital. 
 
 'iiie directors, in their quality of administrators and trustees, 
 are responsible to the company, its shareholders and credi- 
 tors for all damages directly resulting from the payment of a divi- 
 dend which diminishes the capital of the company : (4) and they 
 are also responsible for the loss suffered by third parties, wIkj, 
 having nothing to guide them as t(j the state of the company and 
 the value of its shares but the dividends paid, have been induced 
 to buy >tock at exaggerated prices, ihrougii the declaration of fic- 
 ti'.ious dividends, which, in fact, diminished the capital of the 
 company. (5) J'Ut shareholders who attended the meeiings when 
 the dividends were declared, or who were notified to attend but 
 did not do so, and who had or could have had communication of 
 the statements and reports submitted by the directors wt)uldbe 
 estopped from maintaining an action of damages. (6) 
 
 (1) See Ke Deiiham Co. L. R. 25 Ch. D. 763. 
 
 (2) l.e- r. Ncucliatel Asplialte Co., 58 L. T. R. 553; Ranct-'s case, 6 Ch. 
 App. 10 ^; LeviT r. Land Sccuriiies Co., 8 Times 1,. K. 94; Lambert v. Nt-u- 
 chatel Asphahc <.o., _^o W. K. 4'3' 
 
 (-,) I.imlley Coiup. 429. 
 
 (4; Mi)iUit;al t'liy &: District Savini^s Hank c. Geddcs, 19 R. L. .at p. 
 687 (SC. <Juo. 1S90). 
 
 (;) Ibid. 
 
 (h) Ibid. An application for an injunction enjoining the directors of a 
 company not to declare a special dividend must be preceded by notice, and the 
 atVidavit in support of the application will be held insufficient if it merely 
 alleges information and belief. Kane 0. Montreal Telegraph Co., 20 L. C. J. 
 i2o7i876). 
 
72 
 
 Thk Railway Law ok Canada. 
 
 Prcferi'ncc 
 fshiires. 
 
 til. Unless the contrary is declared by statute, charter, or 
 express contract, all shareholders are entitled to equal rights as 
 to dividends, and no class is entitled lu any preference or 
 priority over any other. Preference shares can only be created 
 when the authority to create them is given by statute or charter, 
 (i) " Guaranteed" and •' j. referred stock" stand upon the 
 same looting, and are not eiitiiled tu a dividend unless it has 
 been earned. (2) 
 
 II 
 
 (1) Lindley Comp. 396. 
 
 (2) Wood Railways, 176. 
 
^ 
 
 CHAPTI'R IV. 
 
 GENERAL I'oWKkS. 
 
 1. I. imitation of tinif for contmen- 
 ceiiii-nt and com/^ldion of work, 
 
 2. Jii(/iiiii! interpretation of sec. 89. 
 ■\. Power of Lieut. -Govr. to cancel 
 
 charter. 
 
 4. Extraordinary powers. 
 
 5. Si4i7eys. 
 
 6. Maps and flans 
 
 7. Deposit of plan. 
 
 8. Notice of deposit. 
 
 9. Correction of errors or omissions, 
 
 10. Alterations in flan. 
 
 1 1 . Const) itction of railway not to be 
 proceeded with till plans made 
 and deposited . 
 
 1 2 . Further powers . 
 
 13. To rccci;r gifts and bonuses, 
 
 M' lo purchase.^ take and sell lands, 
 
 15. 7(> carry raihvay across lands. 
 
 16. De'i'iation, 
 
 17. Ihaiich line<. 
 
 18. 7'o fell treei,crou, etc., railways. 
 
 19. To construct 7t;<rl'< on, across, 
 or under raihoiys, streai/n, hi.;//- 
 ways, etc. 
 
 20. lodivert streams and high-Mays . 
 
 21. To make drains, conduits, e/ . 
 
 22. To alter position of gat and 
 water pipes, etc. 
 
 2_v Proviso. 
 
 24. Telegraph and telephone lines. 
 
 25. 'Jo make an<l miiin'ain railway. 
 
 26. To erect buildings, etc . 
 
 27. 7 o e.xercise fowei s b'yond Inter- 
 national boundary. 
 
 28. 'To sell lind<: aC(/uired from 
 Crown or other:oi<e. 
 
 29. ProTiso (If to compensation lor 
 damages caused by exercise of 
 powers . 
 
 $ 
 
 1. Before considering in det.ul tlie general puwers of a railway Limitation of 
 comi)any, it may l)e convenient to point out tliat inider section '^'^1^^"J°''^^""' 
 89 of The Railway Act, the constrnction of the raihvay must be and comple 
 commenced, and fifteen per cent, (i) of the ;>mount of the capi-""" "(""o'l^- 
 tal stock must be expended, within two year^ (2) alter the pass- 
 ing of the .\ct authorizing its construction ; and if the railway is 
 not finished and put in operation within seven years (3) from the 
 passing of the Act, the powers granted both under the special 
 Act and the general Act are declared to bo null and void with 
 legard to so much of the railway as remains inn onstructed at 
 th.it time. 
 
 (1) Ten per cent., Que. Act, R. S. <^). 5176 (3). 
 
 (2) Three yearp, Que. Act, R. .S. i). 5176 (3;. 
 
 (3) IVn, Que. Act, R. S. n. 5176 (3). 
 
74 
 
 TiiK Raii.wav I-\\\ of Canai>\. 
 
 i 
 
 Judicial iiuci 
 pretaliou uf 
 fcclioii S9. 
 
 I'owcr of 
 l.iciit.C'iovi . 
 10 cancel 
 cliartcr. 
 
 } 
 
 'i. It lias bL'C'ii licid ill (Jiielicc. iliat the (net uf not having 
 (.•xiicndid llic aiiviiiiil ii quired within llnj spccifuMl linu, nor cuin- 
 iiicncod constriiclioii, docs woi //'so /,nfo dpjraiL' an cxtiiiciion 
 111 tlie coiii|)any nor tlic revocalion of its ciuiilcr, wliich could 
 (inly l)c oKlciid al ih.i' suit of the Alt iriiL-y (Icneral, and nut on 
 an injuiK lion hy a private iii(lividu:il. (i ) 
 
 Ami by the House ol Lords in an laij^lish case, where the 
 company's charter jirovided that if the railway wa> not completed 
 in 5 years its powers sliould (:ear>e, exi ept as 10 so much as was com- 
 jjleled. and the company had ^iven notice t<j a laiulowiier of its 
 intention to lake certain property, but did nothing fiirllur until 
 thirteen day before the expiration of the 5 yea:s. and tlien, 
 under the I-aiids Clauses Aci, entered on the land, and proceeded 
 to construct the railway thereon, ii was Held, that whether the 
 railway could or could not have been coniploled within the spe- 
 cified time, the entry on the land was lawful, and the cominmy 
 could not be restrained by injunction, but were entitled to remain, 
 and comi)lele the railway after ihe expiration of the 5 years. (2) 
 
 ',1. ]]y a recent Act of the (Quebec Legislature (3) the Lieulen- 
 ant-(iovernor has been given power, upon the report of the rail- 
 way commitiee, to cancel the charter of any railway co.npany 
 
 (1) Roy r. La Cie. ile Cli. de I'. O. M . ^: C. , 11 I.. N . ',59 ; ami sec, A'e 
 New Y.iik lilcvatiil Ry. Co., 70 N. Y. 327. 
 
 (2) 'liveiton r. Norili Devon Ky. Co. r. Loosemorc, y App. Ca'ies48o. 
 'Ilif 1'. i<: C. b. Ry. Co. Iiad ac(iuiied certain land as part of tlirir 
 
 roaiilied In lS(>~, iN cliarler expiii<l. the road nol liavini; heen put in 
 operalion. In iSifian Act was passod, l)y wliicli the road was to lie sol I at 
 auction, the Act of mcoiporalion revived, and the tiniefor coniplelin;; extend- 
 e<l for 5 years. Wiiliin 5 years a conveyance was execuled to defendant's 
 company, wliicli took possession, but winch diil nol use the laud till a short 
 time before the suit. In 1S72 the C. I'. iS: .\I. R. iS: M. Railway filed a 
 map and book of reference of a proposed extension of ilicir line, and l>uilt 
 ])art of iheir road, ceasiny in I.S75. In 1S80 they leased to plaintilfconipany 
 the land in (piestion, and this action was to recover back possession. 
 
 Held, (.ifiirmii'); Court lielow) That the partial construction of llie road 
 by the C. 1'. ^: M. R. ^^: M. Railway in 1872 was an act of trespass; that 
 the defendant company, under iU-^ reviving Act and conveyance in pursuance 
 thereof, nccjuired a title to the land; that tiie power to sell by order of the 
 Court of Chancery was permissive merely ; that the ri^lil to I lie land was not 
 forfeited by non-c"inpletion of the work on the land within ihe live years, and 
 Iheicfore that (he pi lintilV company should not succeed. (Irand Junction 
 Ry. Co. r. Midland Ry. Co., 7 O. A. R. ()8i. As to what will constitute a 
 /'('//(/y/V^ commencement of construciion, see Out. ^c Saull .Ste. Marie Ry. 
 Co. r. C. t^. R. Co., 14 O. R. 432. 
 
 (3) R. S. (,). 5183 Oi) 56 Vic. c. 36, s. 2. 
 
} 
 
 Genkrai. Powkus, 
 
 75 
 
 whi' li has not complied will) the terms of its cliarlcr as to fom- 
 nicncL'iiient aiul completion of the works within the prcs(:ril)ed 
 time, or has boi.ome insolvent, or is unable to jjroceed with the 
 works, or for any other cause which, /// f//c opinion of the Licit- 
 tcitant-Govrrnor, is su/Jicirnt to jitsti/y such cancellixtion. (i) 
 
 ■t. In order that a company may be enabled to construct and Kxiraonlinary 
 operate a railway, liie Legislature by The Railway Act has given ''°^^^'''^* 
 extraordinary powers, including the power of eminent domain, 
 (2) whicli ])0\vers will be found enumerated in i^ection 90 of ihe 
 Act. (3) 
 
 .I. 'The preliminary steps necessary for the construction c\^ a Surveys, 
 railway are the takmg of surveys, and the making of j)lans of the 
 road or line of the railway, as authorized by the Act of incor- 
 jioration ; and in order thai the ( omjiaiiy may be enabled to 
 do HO, they are aullKjrizi-d by this section of the .Act to enter 
 upon not only the lands and property of all indivi(hials and 
 corporations, but also the property of the Crown, without leave 
 or license, and make surveys, examinations, or other necessary 
 arrangements for fixing the site of the railway, and determining 
 what portion of the lands will be required for the i)iirposes of 
 the railway. ('4) 
 
 O. Having made the surveys as authorized by the Act. the Maps and 
 company are required to make a ma]) or plan of the route of the '''^"^• 
 railway, and a i)rotlle showing the variations in level along the 
 line and tlic course and direction of the railway, and also the 
 lands which are intended to be taken for the railway. This is 
 called the location plan, and the company arere(nu'red to attach 
 to it a book of reference, setting out a general description of the 
 l)roperties which they intend to take, and the names of the 
 owners or occ upants as far as they can be ascertained, and 
 
 (1) The ftar of the exercise of such an arbitrary power liv the ( lovernment 
 h.is caused some (Quebec railway companies to place themsclve> under the 
 jurisdiction of tlie l>oni. Act. 
 
 (2) Except. See sec. 1 19. 
 
 (3) R. S. <^). 5132. 
 
 (4) Sec. 90 {a). 
 
 Uamas^-e caused by a preliminary survey is prescribed 'in six months under 
 sec, 27 of Cap. 109, R. S. C. Rav.iry v. Ont. & Que. Ry., M. L. K., ■; s. C. 
 54. Now one year 51 Vic. Cap. 29, -•■ 287. 
 
76 
 
 Tin; Ra)iav.\y Law ok Canada. 
 
 Depohit uT 
 plan. 
 
 Noticf (if 
 ile]ii»ii. 
 
 Concction 
 errors nr 
 omissions. 
 
 t 
 
 any other details which may lu: iifce.ssary to make llie plan 
 clearly understood, (i) As a matter of practical workinj,', these 
 jjlans generally show by a distincli\e color the e.xtent of pro- 
 perty intended to he taken, designating the land of eai h different 
 owner by a separate nimiber for eacii lot, called the location 
 number, and indicating the measurement and superlkial con- 
 tents ; an.l the book (>!' reference is a sort of index of the whole. 
 
 7. 'The |)lan and bonk of reference and profde have to be 
 deposited in ihc Department of Railways, (2) and it is there ex- 
 amined and certified by the minister (3) or by his deputy ; and 
 the con)pany is re([uiied to deposit copies in the registry office 
 of each district or county through which the railway is to Mass of 
 such jiarlb of the: ])lan is relate I) the locality. (4) 
 
 S. Notii e must be given in at least one newspaper in each lis- 
 Irict or county of the deposit. (5) Tliese copies of plans are oocn 
 to public inspection ; (6; and theiieposit and notice are declared 
 by section 145 to be a general notice to all panics of the lands 
 which will be required by the railway : and the compensation for 
 lands taken and d. images is ascertained with reference to ilie 
 date of su< h deposit. (7) 
 
 of 1>, .Should errors and omissions occur in these plans, and in 
 the description of the lands or their owners, it is provided th.t 
 any omission, misstalemerit or erroneous description ofcithe" 
 the lands or owners or occupants may Ite corrected by two justice.- 
 (8) on ajiplication after ten days' r:otice given to the owners of 
 the land. (9) The justices have power to certify as to die eirrrs 
 
 (1) Sec. 123. 
 
 (2) J'ulilic Works R. S. Q. 5163 (2). 
 
 (3) Conimissioner R. S. t^. /'/'. (4) Sec. 125. 
 (5) Sec. 144. (6) Sec. 126. 
 
 (7) Held, (affirming Ferguson, J., 12 O. R. 624, that in 'isceriaining the 
 compensation 10 be made to a land owner for land exproprioied for a railway 
 under R. .S. C, cap 109, § S, the value of llie pan lak' n (as well as the 
 ipcrea.sed value of the part not l.nken, which by subsec, 21 is to be set off") 
 must be ascertained with reference to the dale of the ('ejiosit of the map or 
 plan and book of reference under subsec. 14, and ilieref.ie sucli vahie should 
 include nn increase which may have been caused l>y ' r is owing to tiie con- 
 templated construction of the railway. James r. Or.t. iS: (Jue. Kv. Co.. 15 
 O. A. R. I (1887). 
 
 (8) Judge of Superior Couri, R. S. (J. 5163 (5^. (9) Sec. ia8. 
 
C;i.NKRAL i'oWKkS. 
 
 77 
 
 or omissions, ;i.n(l their <xTlitu:ato is tlei)Ositcd willi liio registrar 
 with wlioin the plan lias already Ijccii deposited, and the com- 
 l)any are authorized to make the railway in accordance with the 
 correction contained in the certificate, (i) 
 
 10. Again it may happen tiial alterations from ih-- oii.ninai Alt.iuii.iis m 
 survey or jilan hive to be made. In such rase the company are*'' 
 
 bound to make a map and i)rofile of these nlteralions on the same 
 scale as the t'nst map, and in the same form and cfJiUaim'ng the 
 same particulars, and (2) dcixisit it in the same way with the 
 registrar of tlie i)artii'ular loeality affected by the alteration. (3) 
 
 11. lliese are ilie preliminary stejis lo the construction of the <^'"n>micii()ii 
 railway, for until these have been completed, thai is lo «;iy>ccccl"l with'"' 
 until the locaiion plan and book of reference have been made till jilans made 
 and deposited in the manner already menlioned, the construction •^"' •'^•l"''''^""'- 
 of the railway raimol be proceeded with, (4} and if alterations 
 
 have to be nuule in die plan, the construction of tliai portion of 
 the railway affected by the alterations cannot be i)roceeded with 
 until the deposit of the altered jilan. (5) If, however, the coni- 
 jiany are authorized to construct their railway in sections, they 
 are not bound to file plans of the whole railway l)efore com- 
 mencing- W(;rk on any one section. (6) 
 
 V^, Having complied with the provisions of the law as regards I'linliL-r 
 the surveys and plans, the company may now proceed to''"^^'"'"" 
 exercise the further powers given it under the Act for the con- 
 struction of the railway, and it is j^roposed to here indicate, 
 generally, the powers which are given to the company, and 
 afterwards to explain, in detail where necessary, how they may 
 be exercised. 
 
 1.3. Under section 90 the conijiany may receive vohmtary gifts To leccive 
 lands or other property for the purposes of the railway, and|| "" 
 
 (2) Afiei approved by Legislature, K. S. (J. 5163 (7). 
 
 (i) Sec. 129. 
 
 (3) -"^cc. 130. 
 
 (4; See Corp. of I'aikdalc c. West, L. R., 12 A]!]!. Cas. 602 ; also the 
 Kingston 6c Pembroke Ry, Co. r. Muiphy, 17 .S. C. R. 5S2, 12 L. X. 115. 
 .See chajiter on Emineiit Domain. 
 
 (5) Sec. 131. See ISeauhainois Junction Ry. i-. liergevin, 17 R. L. 113 
 (Q. B. Que.," 1889), and Urooke r. Toronto I3elt Line Ry. Co., 21 O. R, 
 401. 
 
 (6) Ont, vS: Sauk Ste. Marie Ry. Co. r. C. P. R. Co., 14 O. R. 432. 
 
73 
 
 IiiK K\ii.WAV Law (jk Canada. 
 
 'I'd ]ilirc'li;isf, 
 tnkf mill sell 
 
 hoiuiscs of moiuy, or bonds, or dcbciiturfs, or any nilur bLiiLlit 
 ^{ivfii for the pmiiosc of .l^si^ting in tlu- constnutioii oi ilic 
 road OI its iMaiiili'ii.incc and o|icration ; l)iii tl.f same may l)c iickl 
 and ii-icl only (or tlic iiuiposis ol siu.li i^rants or donatioiiN. ( i) 
 
 1-1, 'llu!y may pun liase, laki-and lioldnfand liom a.iy person, 
 any lands or iiropt-rly nc( cssary lor ilie conslruction or main- 
 tenance of the lailway, and they are given powei to sell or 
 dispose of, in any way, so much of the property as is not 
 recpiiied for the purposes of tlie railway. (2) 
 
 (1) I'ar. (/'). 
 
 (2) I'ar. (<). 
 
 Tljf jilaintill ciiiivi-yud lot S3 to tlic dtfrmlaiiis in 1.S47, t\iiu>.>ii)^; in 
 the cdineyaniL' that tlie same liad luen si lecitil by tlic- ton; any " fur the 
 pur])(iSf of cstalilisiimj; llic wistcrii tiTPiinus of their road tlienon," "and 
 the execution of which cundilion con.>tituted the sole consideiatimi for this 
 grant." 
 
 Wiien idaiiiiiir ni.ade this grant he knew tliat one II. had cnnviytd the 
 adjoining lot No. }<4 on suhstantially the same conditions. A passenger 
 station was built on .S^, and a freight house partly on X3 and jiartly on .S4, 
 whicli were ii'-ed untd defendants liudt a passenger station al out ,'^2 mile iVom 
 original one. 
 
 On a bill to restrain the removal of the western terminus from the land in 
 (luestioii to the city of Detroit. 
 
 Held, reversing Spraggc, C, that the terminus and depot were not confined 
 to buiKlings alone, but exlcniled to the »h<de premises necessaiy lor conduct- 
 ing the business of a terminus, and that upon llie true coiistiuction of tlu; deed 
 the ])laintiir was cjnly etuitled to have h.t .S3 included in the terminus, and had 
 no light to have all the buildings or any ]iaiticular building on lot M3. 
 
 I kill, that, even if the (Iced were read as re(juinng the estalilishiiant of 
 buildings on the lot in riuvsiion. that <iu;y had been suilkiently comjilled with 
 by their erection. Gemiyeau r . G. W. ky. Co., 3 O. A. K. 41;. 
 
 The plaintiir agreed with the contraclors for the construction of a 
 railway to convey to them in fee siin])le 6 acres, to be inco astd to 10 if 
 neces^al•y, in consideration of their jilacing the station for llie town cjf l're.-<cott 
 thereon. After the load li.id lieen surveyed and the .station buildings erected 
 on the jiroperty, the phiinlill executed a conveyance thereof to the ccjiitraclors, 
 which Contained a covenant by them to continue and maintain the station on 
 those lands from thenceforlh ; but the deed was never e-xecuted by the giantees. 
 The company contimieil to use such station for about 10 years, whun they 
 remo\Ld it to a distance of one anil a half miles. 
 
 Held, reversing the judgment of the Court below (28 Gr. 5S3), that the 
 Act of the comjiany in thus jilacing and using the station was a suhstaiitial 
 compliance with the aguenunt. and that they were not bound to continue 
 that station there for all time. Jessup f. (i. T. Ry. Co., 7 O. A. R. u8. 
 
 Held, that a promise of sale followed by actual possession was equi- 
 valent to an absolute .sale, and an hypothecary claim created against the \eii- 
 dor subse(|uent to siich promise of sale was ino])erative as against the property 
 !.old. Gosselin r. (J. T. Ry. Co., 9 L C. R. 315, Q. 15. 
 
 If an agreement to take and pay for land made by the directors ( fa rail- 
 way company before the passing of an Act, to authorize a woik which is the 
 
(llNIKAl, l'i)\\H<S. 
 
 7'» 
 
 iiy 
 
 iil- 
 ihe 
 
 in, 'I'li'V m;iy ( (tnslrucl and i airy tin- r.ii!w:iy across ilu- l.iiuls I" cany rail- 
 (il any iktsoii on tin- lino as ItuMtrd, nr wiiliiii ont- mile of ll'^' ;*i','^|."] *"*'' 
 l.icaii'd line iiiidi r ilic •general .\( t, or at smh furtln'r dislam i- 
 lidin till' iiiR- .1-. iii«y may he saiiciioncd to di I'y llicir special 
 Act. 
 
 Hi. Under (hirhcc .\<t lluy f.miidl dcviali' ivcii one mile tin I'' vi.itiDii. 
 loss antliori/ed hy the spei ial Ac:, (il iUil under the I )ominiiin 
 Act tlicv iii.iy chanj^e tlie location ol" tli^ railway with aiii)rn\al of 
 the railway connnittcc, in order to lessen a curve or rediic-' a 
 gradiint, or odierwise to hencfit the railway, ''or for any other 
 jiiirpose of public advantagi." .\ll the provisions of tlie .\cl 
 apply to tlie part so clianj^ed. l!ut no < omp.uiy sliall e.Miiid 
 beyond its lei mini fixed by the special A( t. (2) 
 
 subjer' of that nRrecmtnt, is valid, lis valnlity will imt l)e tilli iti'il liy tin- 
 f:\rt tilt a p.Trt (f micIi a^jicfincnl ri'l.ilts 1.1 cKtiipfiisatii'ii (or niinoyancc, 
 which laiiiiii'. lia|)|ic'n if itie land itself is not iiwuiirt'd to hf taki'ii. 
 
 Aiiil .""n ayni'iiunt liy which directors liiiid then selves in the event of their 
 Hill passu. • 10 take l.iiid for the j'liiiiose of nuikin;^ liie lai'wav, :inil to \Ay 
 for it xMtli^n three niotiliis alter the |KUsiii|.; of the lull, is v;ilid,aril iis stipula- 
 lions III cniiieeiifniceahle after the | assjiii; of the Hill. Taylor c, ( hichestei iS: 
 Midlaiiil Ky. ( o., 1.. k., 4 li. ^\: I. A)i|'. 628. 
 
 Occiipalioii of land tiy the comiiany without the jiroprietor's formal consent, 
 or without tlie formalities reqiiiied hy the Act. i^ive.s to the hitter right to an 
 o| (losition ,i/i>i d( iii>ti,ii>i; I'.rewstcr /•. Mon},'eaii, 15 I\. I,. 67 M,'. H. 
 1887). M. I.' K.. .? (J. 1'.. 20. 
 
 \\'here a raih\ay company takes possession of land for the purposes of 1 heir 
 road, \Mlh no niher permission from the )iro]irietor than that, if they do so, 
 "it will 111' al iheir own lisk ; "' the propiietor may, even after a lapse of 
 several years, recover hack the land fioni the company, so Ioiil; as no indem- 
 nity has heen paid for il. UMMVUcr-*J. Montreal! and the M. iV S. l\v. lo. 
 31'!,. C.J. iiS(<.). H. I.S87^ 
 
 (1) K. S. (J. 516;, (II). 
 
 (2) Sec. 120. 'I he jpiovision conlnined in section 10 of the Consolidated 
 Ky. Act 1S79, tiiat no railway eon] any shall havt any riyhl to extend its line 
 of r.iihvay lnyund the termini nienlioncd in the special .\cl, is inconsistent 
 with the power ^wvn to the Canadian I'acilic Ky. Co., under section 14 of 
 their contract to Imild hrancli lines from any point within the Dominion, an, I 
 with a declaration in section 15 in the charter, that the main line, hrancli lines 
 and any extensions of the main line thi.reafler constructed or acciuired shall 
 constiiute the (J.inadian I'.acific Railway ('oniiiany ; followiti;,' this holdmj;, it 
 was Held, thai in the jiarticular case the C . P. K. Co. had a lij^hl to Iniild 
 their ro.ad beyond Port Moody in H. C. the terminus mentioned in thi ir Act 
 of incorporation. Can. Pac. Ry. Co. v. M.ajor, I3 .S. C. K. 233 ; 9 L. -N. 4I0, 
 1887. 
 
 A company huilt its line to a t.rminu.s mentioned in the charter, and thiai 
 wished to e.Meiul it less than a mile in the same <lirection. The lime for 
 the completion of the road had not exi.iied, but the company had terminated 
 the representation on tlie board of directors, which by statute was to continue 
 during; construction, and had claimed and obtained from the city of K. exemp- 
 tion from taxation on the g'-ound of completion of the ro.ad. 
 
So 
 
 'i'liK Raii.wav I,a\v ()!•■ (Canada. 
 
 ,li 
 
 liiaiicli lim-. 1/7, iJrancli liiK's, not exceeding six miles in length, may he 
 constructed (or the jnirpose of connecting any city, town, village, 
 maniirictuie or mine, (iiiarry, sjjring or well, with tlie mainline 
 (ir any branch, or with any railway worked or leased by the 
 company, (jr for tiie puri>ose of giving increased facilities to busi- 
 ness, (i) 
 
 Ijetoie proceeding; to locate or construct any such line, more 
 than (ine-(|uarter of :> mile in lengli), the company must give six 
 weeks' public n(<tice, in a newsi)ai)er in ll e county aff-cled, of 
 their intention t(j apjily to the railway i:ommiltee [2) to sanction 
 the building ;uk1 the ap])ropriati(Mi of lands therefor under the 
 com|)ulsory powers of the company. (3) The company must 
 deposit a plan and book of reference in the registry office of the 
 l)laces affected ; and the i)lan must be approved by the railway 
 committee after the last publication. The order approving 
 limits the time within which such branch line is to be construct- 
 ed, not to exceed two years. (4; 
 
 Kvery such company may, for any such purpose, exercise all 
 the powers given to it with respect to its main line, and each an '. 
 every ])rovision of the general and sjjccial Acts, which is appli- 
 
 'I'o effect ihc desired extension, it wns sought to expropriate Kinds which 
 were not marked or referred to on the map or plan tiled under tiie statute. 
 
 Held, that the proposed extension was not r. deviation within the meaning of 
 the statute 42 \"\':., c:\p. y, sec. S, §§ II 1). That tlie road autliori/.ed was com- 
 pleted as shown by the acts of the com))any, and upon sucii completion tliL' 
 compulsory powers to expropriate ceased ; and per Gwynne, J., that as the time 
 limited by tlie charter for the completion of the road had not exiiired, t!ie 
 company could still lile a map or plan shewing the lands in question, and 
 acqi'ire the land under sec. 7, substc. 19, of 42 Vic- ca]). 9. Kingsidii X: 
 IV-r-.broke Ry. Co. r. Murphy, 17 S. C. R. 582, 12 L. \. 115. 
 
 Where a railway company were authurized to construct their line " from " 
 the City of Ottawa to, etc., it was held that they had the right to enter the city 
 ,ind construct from a point wiihiii its limits. A'e IJronsdon c/ <;/. ^ the City of 
 Ottawa, I O. K. 415. And so also where the company were authoriijed to 
 construct a railway "by way of" Montreal, etc Evans v. Atlantic t\: N. 
 W. Ry. Co., S. C. Mont. 23 May, 18S7. 
 
 (1) Sec. 121. 
 
 (2) Lieutenant Governor R. S. Q. 5132 (17). 
 
 (3) Sec. 121 . 
 
 (4) Ibid. 
 
General Powers. 
 
 Si 
 
 cable to such extension, shall exteiul and appiy to every such 
 branch line of railway, (i) 
 
 Under the Quebec Act, branch lines not exceeding 6 miles in 
 length may be built from any terminus or station of the railway, 
 on obtaining from the local inunicijjality a by-law sanctionini; 
 the same; but lands cannot be taken for such purj^ose without 
 the consent (>f the owners. Sucli branches are not subject to the 
 restrictions as to quality and construction of tlie main line con- 
 tained in the charter or general Act. (2) 
 
 18. The company may for the purposes of construction (utTc fell trees, 
 
 ■.. • ' - _ j.^ 
 
 ays 
 
 down any trees within six rods from either side of the railway. (3 ) *-'''^-"S. t^tc., 
 
 railways. 
 
 10. They may construct tiie railway across any other railway To construct 
 
 at any point on its route, or cross, intersect, join and unite their "'"'" ""' 
 
 ncross, or un- 
 
 (1) Sec. 122. 
 
 Under special reference of the disputes betwcer. the Nothern Ry. Co. and 
 the town of Barrie, .IS to the construction of a branch line into the town, it 
 .was Held, that Ihedirections of the ar'oitrator, as to the conveyance ofcertain 
 lands by the company and a release of their cairns as to other l.-inds, were 
 authorized, .ind the latter not objtction.-ible for omitting to state to whom it 
 was to be made ; and that as to the amount awarded, if, as contended, the 
 corporation could obtain no dam.iges beyond what they h.ail expi-nded in 
 procuring the land, it should be assumed no more was given. Corp. of Town 
 of Barrie & Northern Ry. Co., 22 U. C. Q. B. 25. 
 
 (2) R. S. Q. 5132 (16). (N. B. -j-his cl.iuse is not contained in the Domi- 
 nion Act.) 
 
 (3) Sec. 90 O), Railway comp.-.nies, in exercising this right, and causing 
 damnge tiiereby, may ple.ad that this riglit forms part of tlie damages to be 
 covered by the compensation awarded to the person whose land is'expropri- 
 .ited, .and he has no action to recover any additional amount for the value of 
 trees within this limit which may be cut down and removed by the company 
 Evrins v. A. & N. W. Ry. Co.. M. L. R., 6 S. C. 493. 
 
 The defendants, a railway company, incorporated under an Act of the Par 
 Lament of Canada, built their line through land owned by the Crown, but 
 which was under a timber license from the Ontario Goveinment. 
 
 The defendants cut down and removed the timber both within and outside 
 the SIX rod limit, mentioned in subsec. 12 of sec. 6 of the R. S. C, cap. 109. 
 
 Held, that under the subsection, the timber cut within the six rods became 
 the property of the railway. McArthur -.■. The Northern & Pacific Junction 
 i^y- Co. & Hendrie -(a/., 15 Ont. R. 733. 
 
 lier railways, 
 streams, high- 
 ways, etc. 
 
82 
 
 The Railway Law of Canada. 
 
 To divert 
 streams and 
 liigViways . 
 
 
 railway with any other raihvay, (i) subject to the provisions of 
 the Act to which attention will be called later. 
 
 JJO. They may even interfere with other railways, with tram- 
 ways, canals, highways, (2) rivers, or streams which the railway 
 intersects or touches, to the extent of constructing in or upon 
 them, across, or under them, temporary or permanent inclined 
 planes, tunnels, embankments, aqueducts, bridges, roads, ways, 
 passages, conduits, drain.;, piers, arches, cuttings and fences, (3) 
 provided always, be it understood, that these are necessary for the 
 ])urpose of the railway, and subject to special provisions in cer- 
 tain cases. 
 
 In the case of rivers, streams and highways, the company 
 may divert or alter, either temporarily or permanently, their 
 course, or raise or sink their level, as may be required. (4) 
 
 (1) pnr. (/). Arbitration as to crossin;^ under sec. 9, sul)sec. 15, cap, 165 
 K. S. O. Ai)peal therefrom, etc., etc., I'idi- C. X . Ry. Co. c. G. \V. Ry. 
 Co., 4 O. A. R. 532. 
 
 (2) See G. T. Ry. f. Miville, 14 L. C. R. 469 (Q. 15. 1S64), !>• 83 
 infra. 
 
 A street railway company was authorized to lay its track '' along the high- 
 ways in the parisl) of M.," leading into the streets of the city. 
 
 Held, that the company, in laying its track inconveniently close to the 
 property on one side of the highway, and thus apparently favoring the pro- 
 perty on the other side, had not exceeded its powers, and an action for the 
 abatement of the nuisance was dismissed. The Atty. Gen. v. The M. 
 C. 1'. Ry. and The Trustees of the M. Turnpike Roads, I L. N. 580, S. C. 
 1878. 
 
 Where works, for the construction of a railway authorized by Statute, 
 passing in the street of an incorjioratetl town, injure the property of an 
 individual, his aition of damages will lie against the railway company and 
 nui against the nuiniiipal corijoralion. Lambert (S: The Corporation of 
 Three Kive's, Q. U., Ramsay's Digest 221 ; lo R. L. 359 O. 15. The City 
 of Three Rivers v. Lessanl, 10 R. L. 441, Q. B. 
 
 Munici| alities alone have the right to sue for removal of obstructions and 
 encroachments on the public streets, and individuals have no right of action 
 in the piemi''es unles.? in the ease of real and special ilamage incurred by 
 them, liouidon v. Bernard ct al., 15 L. C.J. 6n, (J. B. iS/tj. 
 
 (3) I'ar. ig). And see sec. 1S3 vl seq. as to highways; and \'ide Atty. 
 Gen. r. The M. C. P. Ry. Co. and The Trustees of the Turn[jiiie roads, 
 I L. N. 580. 187S ; Lambert v. Cor]), of Three Rivers, 10 R. L. 359, Q. 15 ; 
 Ramsay's A. C. 221 ; Bell r. The City of ()uebec, L. R., 5 A])]). Cas. 84 ; 
 Regina'r. G. T. R. Co., 15 C. C. Q. 15. 121 ; /// re Day & Town of Guelph, 
 ibid. 126; The Caledonian Ry. Co, i\ Walkers Trustees, L. R., 7 App. 
 Cas. 259 ; Fleming c. Ihe New])ort Ry. Co., L. R., 8 App. Cas. 265 ; 
 Ricket V. Metropolitan Ry. Co., L. R., 2 E. it 1. App. 175 ; Corporation 
 of Parkdi »•. West, 12 App. Cas. 602. 
 
 (4) Par. (//), 
 
General Powkrs. 
 
 83 
 
 ns 
 
 of 
 
 I tram- 
 ailway 
 r upon 
 nclined 
 , ways, 
 :cs, (3) 
 ' for the 
 1 in ccr- 
 
 iOiop^'i'''y 
 tly, their 
 ired. (4) 
 
 J, cap 
 
 165 
 
 G.w.Ry. 
 
 ng the high- 
 
 close to the 
 
 ing the pio- 
 
 ;tion for the 
 
 V. The M. 
 
 580, S. C. 
 
 by Statute, 
 
 .peviy of an 
 
 comp^'^y *" , 
 ovporation 
 
 1;. The City 
 
 struclions and 
 jaht of action 
 c incuiR-il liy 
 
 nd Vi'le Alty. 
 inn)ikc roads, 
 
 App. Cas. 04 ; 
 own of Guelph, 
 
 , L. K., 7 -*^Pl^- 
 \pp. Cas. 265; 
 5 ; Corporation 
 
 of 
 
 til. Besides taking the lands they may require for the raihvay. To make 
 they have llic riglu to make drains or conduits in or tlirough d[,^J"^e{^c" 
 lands adjoining the railway, for the purpose of conveying water 
 either to the railway or from it. (i) 
 
 *^*-i. And where drains or sewers, or water or gas pipes, or To ahcr posi- 
 1 1,11 1 • 1 • t . • 1 ■ . r ■ tioii of gas and 
 
 te]egra])h, tclc|ihone or electric light wues or poles, nilerfere in ^^^^.^ pipes, 
 
 any way with the construction or operation of the railway, theeic 
 
 company may divert them or alter their ])osition. (2) 
 
 JiiJ, \\ liilsl having the right to exercise these powers of Proviso, 
 division and alteration with regard to rivers, streams and high- 
 ways, and water and gas i)ii)cs, drainage, or telegraph, telephone 
 or electric light wires or poles, the company are recjuircd to 
 rc^lt()rc the same as nearly as ].ossible to their former state, or 
 at all evLiUs lo put ilu-m in >uch a state as not to materially 
 ini])air their usefulness. (3) 
 
 ti4. Tb.e ])0wers of the company include also the right toTelej^iaph 
 construct or acquire electric, telegra])h and telephone lines for i' J "^ '•'"'^ 
 the purposes of its undertaking. (4) Railway companies under 
 the Dominion Act have not the power to construct or acquire 
 telcgrajih or telephone lines for commercial business, that is to 
 say, for the transmission of messages for the public ; their 
 ]iowers in this res])cct can be exercised only for the purposes of 
 the railway, unless specially authorized by the special Act. But 
 under the Quebec Act, (5) they have the power to establish 
 tclegra])h lines along the whole extent of the railway, which lines 
 may be used by the jjublic generally, under such rules and 
 regulations as the company may fix. 
 
 (I) I'ar. {i). In an action of damages by reason of plaintiffs land being 
 overflowed in consequence of neglect of com]iany to keep ditches on eacii 
 >ide of railway in proper order, 
 
 Held, in appeal, that as the ditches in question had been cut by defen- 
 dants to carry off surplus water, and were so cut .as lo conduct the water 
 into a watercourse running through plaintiffs land, which was thereby 
 flooded, and damage caused, that defendants were liable notwithstanding 
 the rule of law "that he who, in the construction of any work upon his 
 pro]ierty, uses his right without violating any rule of law or of usage or title 
 or contrary possession is not held foi the damage resulting therefrom. 
 Tlie G. T. Ry. Co. .and Miville, 14 L. C. R.469, Q. B. 1864. 
 
 (2)Par. (y). (3) Sec. 91. (4) Sec. 90 (>«). 
 
 (5; K. S. Q. 5176. 
 
^^ 
 
 'If' 
 
 84 
 
 The Railway Law of Canada. 
 
 ui 
 
 To make and 25. In addition to the powers mentioned, tlie company are 
 maintain rail- ., • 1 r . 1 1 1 ^ ' 1 ■ 
 
 ^^^.. authori/ied, as a matter of course, to make and complete their 
 
 railway, and to alter it and to keep it in repair ; and the railway 
 may be worked by any mechanical power, either steam, electri- 
 city or the atmosphere, or by animals, or by any combination of 
 them, (i) 
 
 To erect 26. They may also erect and maintain all the buildings, hta- 
 
 huiklingf, etc. tions, depots, wharves, etc., (2) that are required for the railway, 
 and construct the engines, cars and other machinery necessary 
 for the working of their railway and the accommodation and use 
 of their passengers, freight and business, or ac(piire the same by 
 purchase ; (3) and as a result of the foregoing jjowers, they are 
 further given power to carry pat-^cngers and goods on tiie 
 railway, and to fix the time and manner iii whicli they shall be 
 carried and the tolls and compensations for such carriage. (4) 
 and from time to time alter, repair, or discontinue the before 
 mentioned works or any of them, and substitute others in tl.eir 
 stead. (5) Then comes a wide and general clause empowering 
 the company to do all other acts necessary for making, main- 
 taining or altering or repairing and using the railway. (6) 
 
 27. In 1890 Parliament extended these powers, so that ;uiv 
 company operating a railway from any point in t'anada to anv 
 point on the International boi >dary line may c'ercise beyond 
 sucii boundary the ])owers which it may exercise in Canada, in 
 so far as they are permitted by the laws in foice there. (7; 
 
 (1) Sec. 90 (X-). 
 
 (2) yiJe, London, UriglUon & South Coast Ry. Co. r. Truman, L. K., 
 II App. Cas. 45. 
 
 Under sec. 46 C. log K. S. C. railway companies are bound to pay for 
 damages caused by the erection of snow-sheds, where the damage is caused to 
 the property itself on which the sheds are erected, and diminishes its value. 
 Action for s .wli damages can be taken by the owner of the land, although not 
 in jiossession. Sanclie v, C. P. R. Co., 16 R. L. 296. 
 
 (3) r.-ir. (/). (4)\'ar.(c). (5) P.ir. (^). 
 
 (6) Par. (g). Where it was alleged that the G. T. Ry. Co. werecarryintr 
 on the business of carters by conveying freight to and from the city and 
 their depot, to the detriment of the ])ublic and carters of Montreal. Held, 
 the company had power to employ particular carters exclusively for so collect- 
 ing and delivering freight, and that this was not a violation of their charter, 
 but was essential or at least incidental to their business as common carriers, 
 and fell within the meaning of the Act respecting railways (C. S. C, c. 
 66, § 8), and that an injunction would not lie. Tiie Atty. Cen. v. The G. T. 
 Ry. Co., 16 L. C R. 91. 
 
 (7) 53 Vic, c. 28. 
 
 To exer(-i;;e 
 powers be- 
 yond Inter- 
 national 
 boundaiy. 
 
 m 
 
General Powers. 
 
 8^ 
 
 *-i8. And !)>' llic same Statute as amended by 55-56 Vic, cap. To -ell lands 
 
 .:7, raihvaj' companies were uiven power to acquire, seller other- '?^''""'^ '^"^"' 
 ' , . . ' Cnnvn or 
 
 wise dispose of lands obtained from the Crown or any corpor- otlni wise, 
 ation or other party. 
 
 ti9. Whilst the IjCgislature has given railway companies these Troviso .is to 
 
 extensive i)owers, it has at the same time endeavored to iMotcct^"'"''^''"^"''"" 
 , , ,. . ., , ... , . for <lam.i{je.s 
 
 the public r.i every poss'blc way, as we will have occasion tOcmsed hv 
 
 ]:oint out hiter : suflke it for the moment to call attention to the ^•'^'^'''-''s^ "•" 
 general provision contained in tlie Act, that the company sh.all, ''°"'''^' 
 in the e.vercise of their powers, do as little damage as possible, 
 and make full compensation i.i the manner provided therein, 
 and in the s|)ecial Act, to all jiarties interested, for all damage 
 by them sustained by reason of the exercise of such powers, (i) 
 It is not convenient to discuss at this iioint the nu-anin<r 
 and extent of this clause. It is sufficient to here point out that 
 the compensation which it is provided railway companies shall 
 make for damage caused in the exercise of their ])owers is the 
 statutory compensation provided by the Legislature to be 
 recovered in the manner thereby fixed. And any further reference 
 at tlie ])rerjent to this subject may be concluded by the observa- 
 tion that, in the opinion of the author, the only remedy of the 
 party suffering damage caused by railway companies i;i the 
 lawful and proper exercise of their corporate jmwers, under 
 authority of Parliament, is that provided by Statute ; but for 
 damage cat ed by the fault or negligence of railway companies 
 (ir their servants, in the exercise of these powers, the party 
 suffering has his recourse at common law. (2) This is a wide 
 subject, which will have to be more fully considered when we 
 come to treat in detail of the liability of railway companies for 
 damages caused in the exercise of the various i)owers conferred 
 upon them by Statute. 
 
 (1) Sec. 92. 
 
 (2) Kex V. Pease, 4 U. .SiAil.^o; Vaiigli.in r TallV.ile Ry. Co., 5 II ^c 
 X. 079 ; Reg. V. Chester, 35 L. J. {). \\. 251 ; RyLindso. Fletcher, L. R. t, 
 II. I.. 3',o ; Brand v. Hammersmith Ky. Co., 4 II. L. at pp. 196 and 215'; 
 London cS: lirighton Ry. Co. r. Truman, 11 App. Cas. at po. 45 and 61 '• 
 X.it'.nnal telephone Co. i- Hakor, ^ R. 318 ; C. C. 105 VS4. 
 
CHAPTER V. 
 
 I'lNANClNG OF RAILWAY COMPANIKS. 
 
 .i: 
 
 \u 
 
 1. Payment of right of uui)\ pluiil, 
 contrnctois, etc., by isnii" c/ />(iiu- 
 up stock. 
 
 2. Piefcrreii stock. 
 3 Increase of stock. 
 
 4. Subsidies and bonuses . 
 
 5. Issue of promissory notes and 
 bills. 
 
 IIONDS, UEBKNTURKS, KTC. 
 
 6. Issue of, authorization pf } hare- 
 holders. 
 
 7. Timf and place of payment. 
 Kate of interest. 
 
 8. lorni. 
 
 9. Sale and pledge. 
 
 Purpose to be applied to. 
 
 10. limit of issue must net be ex- 
 ceeded. 
 
 11. Pe- issue. 
 
 12. Restriction oj poi^'ers (11070 re- 
 moved). 
 
 13. Mortgai^e deed. 
 
 14. Ponds a pint claim. 
 
 15. Trustees for bondholders. 
 
 16. Pondholders mortgagee.'. 
 
 17. Interest. 
 Coupons. 
 
 18. Bondholders^ position. 
 
 19. Powers of bondholders. 
 
 20. Transfer. 
 
 21. Jurisprudence. 
 
 22. Power to borrow and mortgage, 
 •23. " gire lien on raihray 
 
 and alienate lands. 
 24. Po'u'cr to alienate franchise. 
 
 25 
 26 
 
 27. 
 28. 
 29. 
 ?,o. 
 31- 
 
 32- 
 
 -> -» 
 
 3+' 
 
 35- 
 36. 
 37' 
 3S. 
 
 39- 
 40. 
 
 41. 
 42. 
 
 43- 
 44. 
 4.S- 
 46. 
 
 47- 
 48. 
 49. 
 
 50- 
 
 t'te 
 
 and 
 
 to 
 
 . Sale of rail^oav. 
 
 Ponds, a first charge 01. 
 
 undertaking, etc. 
 
 Undertaking. 
 
 'Polls and income. 
 .After aci/nireJ properly. 
 
 lender's lien . 
 Polling stock— part of really r 
 
 Pails and ether supplies. 
 Pormalities in making 
 
 i.fsning bonds — -waiver. 
 Directory rcijuirements a 
 
 formalities. 
 
 Stolen bonds. 
 
 Pleading -.cant of fonnalitx. 
 
 I'ltyee not meiiiioned. 
 D.benlures negoti.rble in.^tiu- 
 
 menfs. 
 
 Coupons and interest thereon. 
 
 Place of pie.fentment and pjy. 
 
 ment. 
 .Suit upon I on pons, 
 
 I'ranfer ,ind registration of 
 
 bonds. 
 
 Default. 
 
 '• .It the ne.xt general meeting.' * 
 
 " Poising money.'' 
 
 " Pei:t terms and ci'n.iitions." 
 
 Distinition betxoeen pledge and 
 
 deposit as eollat ral securit: 
 
 P.xtent of borio-u'ing po-.v^r 
 
 condition precedent. 
 E.ycessi: e borrowing p07oer cured 
 by std>seqnent .'let . 
 Comfany not restricted to rends 
 alone as secnrttv fur monies bor- 
 rowed. 
 
Financing of Railway Companies. 
 
 87 
 
 TRUSTEES. 
 
 5 1 . Failure to act. 
 
 5 2 , Rights of hondko'.diis to / rotect 
 their interests. 
 
 53. Notice, 
 
 54. Trustees as common carriers. 
 
 55. Who are trustees. 
 
 56. Distinction between mortgage niiii 
 hypothec under the civil and 
 common lav. 
 
 III si I It- 
 
 1. Before considering the general powers of railway companies Payment of 
 that are to be exercised under the Statute, we must consider ''j^^^'^''^^^^"^' 
 what are the financial means of which the company may avail traciois, etc., 
 itself in order to obtain the necessary funds for the purpose of the p^jji!j"^s*tock 
 construction and operation of the road. First of all, there is the 
 capital stock, which the directors have the power to call in, in 
 the manner already mentioned, (i) The money thus obtained 
 can only be used for the payment of the cost of the preliminary 
 expensesof the company, the making of surveys, plans and esti- 
 mates, and the construction, maintenance, oi)cration and other 
 l)uri)oscs of the railway generally. (2) 
 
 There is also the means provided by sec. 39 for the pay- 
 ment for right of way, plant, rolling stock or materials of any 
 kind, and the services of engineers and contractors, by the issue 
 of paid-up stock. (3) 
 
 (1) Supra, p. 63. 
 
 (2) Sees. 33 and 35. 
 
 Vide (Zohun r. Wilkinson, 12 Ueav. 138, I Mac. & G. 4S1 ; ISagshaw 
 
 7 1 Tare 11 i, 2 Mac. &. (1. 389; Hodgson c Tlie 
 392,5291 Graham r. IJirkenliead, etc., Ky. Co., 
 
 Eastern Union Ry. Co 
 Earl of Powis, 12 Bcav 
 2 Mac. 6c G. 146. 
 
 (3) See pa'^'e 6S supra. An .agreement b.'tween a person to take, and a 
 company to give, fully paid shares, in payment for property or services, is not 
 satisfied by the company allotting shares not hilly paid up any more than a 
 contract h)r cotton would he satisfied by the compiny supplying bark. 
 (Bowen L. J., 1887.) Arnol's case, re IJarangah Oil Refining Company, 
 L. R., 36 Ch. I). 711 ; Anderson's case, 7 Ch. D. 75 ; i Ch. D. 124. 
 
 Thus where directors had agreed to transfer fully paid-up shares into A's 
 name as security for an advance, the court held that they had no power to 
 put A on the register for part-paid shares. Ashworth c. Bristol Ry. Co., 15 
 L. T. R. 561. The company does not fulfill its contract in such a case unless 
 it issues fully paid up shares, which will be recognized as such in law. If it 
 omits to make them so by registering a contract, neither the company nor its 
 liquidator can enforce the contract. Arnot's case, 36 Ch. D. 702. But see 
 re London Celluloid Co., 39 Ch. D. 190. 
 
 The allottee is in such case entitled to repudiate the shares. Re Addlestone 
 Linoleum Co., 37 Ch. D. 191 ; Mudford's claim, 14 Ch. D, 634 ; ex-/>arte 
 Appleyard, 18 Ch. D. 587. 
 
 Where a company had agreed to pay for a concession in fully paid-up 
 
rWiTiTrr-tiT , 
 
 - a— nifciniwat*— w»»w 
 
 I 
 
 88 
 
 The Raii.wav Law or Canada. 
 
 I 'referred 
 stock. 
 
 *4» 'I'lic company may also raise money lor the purpose of the 
 undertaking, by the issue of wliat is called preferred stock. 
 
 Hy preferredrslock is generally understood stock upon which 
 the dividends, at a certain fixed rate, are guaranteed by the 
 company and are paid in preference to the dividends upon the 
 connnon stock, — that is to say, that a holder of ])referred stock is 
 entitled to be paiil a dividend at the rate specified, out of ilie 
 net ])r()fits of the comiiany, before any holder of common stock 
 is entitled to any jiayment of dividends. In the absence of 
 
 shares, hut, on account of the veiiilor's .Tlleged delay in handnig over the 
 concession, tlie companv had registereil him as a holder of the shares as unpaid, 
 the court orcL-rcd the refjister to be rectified, tiie company to enfrrce any 
 claim it might have against the vendor in the usual way. Kx-paile Wilson, 
 re Foreign (las Co., W. \. 1S74, \\i}. 
 
 A transferee of vendor's sliares allotted as fully jLiiil-up Chut not in casli or 
 under a registered contract) is in no lietter ]io:,ui(jn tlian his transferoi-, and 
 will be treated in the wiiulmg-up as the holder of unpaid shares, iftheconi- 
 l>any has done nothing to mislead the transferee. Cricknier's case, 'v Carri- 
 beau Co., 44 L. J. Ch 595; afrnnicd, 10 Ch. Ajip. 614. lilylli'.s case, /•<• 
 lleaton Steel ts: Iron Co.. 4 Ch. D, 140. Hut see /<• Hiitish I'avniers' I'uie 
 Lin-^ccd Cake Co., 7 Ch. 1 ). 533, afhrmed, 5 Ajip.Cas. 1004, e.xplainiug lilyth's 
 
 CISC. 
 
 If a vendor transfers jiaid-up shares to a directorto qualifyhim, the director, 
 though liable for a breach of trust, cannot be treated as the holder of unpaid 
 shares. Car! ing's case, I Ch. 1). 1 15, 
 
 Where a contract to allot shares as fully paid up has been registered, the 
 registration enures to the benelit of thennminee of tlie allollee. Kirby's case, 
 )i' Dominiin nf Canada Plumbago Co., 46 L. T. R. 6S2 ; following Carling's 
 case. 
 
 If a Company has registered an allottee as holder of shares fully paid-up, 
 or issued certificates representing the shares as paid-up fthough in fact there 
 has been no payment in cash (ir registered contract), it will be estopped by 
 such adni'ssion, ami likewise will ti.e li(|iiidatoi", as against a transferee without 
 notice, from saying that the shaies are not paid-up in cash. Nicolls's case, 
 re British Farmers' Pure Linseed Cake Co., 7 Ch. 1). 533. AfTirmed (H. L.) 
 sub. nom . Ihirkinshaw /'.NicoUs, 3 App. Cas. 1004 ; re London Celluloid Co., 
 39 Ch. 1). 190, 205. 
 
 And this title by estoppel the transferee may pass even to a person who has 
 notice that the shaies have not been paid up ; e.g. , an officer or solicitor of the 
 company. Harrow's case, i 4 Ch. l>. 432 ; commented on re London Celluloid 
 Co.. iiipra ; Turpin's case, W. N. 1870, 77. And see, re A. W. Hall &Co., 
 37 Ch. D. 712. 
 
 I!ut the doctrine of Hurkinshaw r. Nicolls does not apply where transfeiee 
 can be proved to have had notice, i.^press or constructive, that the shares 
 were not m fact paid-up ; the burden of such proof is on the liquidator. AV 
 London Celluloid Co., 39 Ch. I). 190 ; re Halifax Sugar Refining Co., W.N. 
 1891, 2, 29; ;•£■ New Chile Gold Mining Co., W, N. 1892, 103. Nor does 
 this doctrine apply where the shares are taken not on the faith of the com- 
 pany's certiticate, but upon representations made by the directors. AV Vulcan 
 Iron Works Co., VV. N. 1885, 120; ^.v/ar/if Sandys, r# Railway Publishing 
 Co., 42 Ch. 1>. 98. 
 
 m 
 
^ 
 
 I'iNANCING OF RAILWAY COMPANIES. 
 
 89 
 
 >pecial legislative authority, jjrefeired stock cannot be issued 
 withoiil the consent or acquiescence of the liolders of the 
 ordinary or common stock of tiie company, (i) By consent is 
 meant their hiwful consent given at a meeting properly called for 
 the pur[)ose : but the ierm "acquiescence" has a much wider 
 meaniiig. It has been held by the courts in New ^'ork tiiat a 
 holder of common stock, who had not expressly consented to 
 the issue of jireferred slock, but who had allowed the stock to 
 be issued and jireferential dividends paid thereon witiiout taking 
 ac lion, could not afterwards validly attack the issue of the stock. 
 (2) It must be always understood tiiat preferred stock cannot 
 be issued beyond the amount of the capital stock, authorized by 
 the charter of the com])any, without si)ecial legislative authority 
 therefor ; or unless the capital is increased as indicated in the 
 next paragrajili, 
 
 The oriifinal 
 
 • > 
 
 • ». 
 
 capital stod' 
 
 of the comi)any may be Increase of 
 increased, with the apjiroval of the (iovernor in Council, (3) to''"'^'^' 
 a)iy amount, (4) but this increase must be sanctioned by the vote 
 of tl'.e shareholders holding at least two-thirds of the subscribed 
 stock of the company, at a meeting specially called for that 
 jvarpose by llie directors, by notice delivered to each shareholder 
 ivjrsonally, or properly ilirected to him and deposited in the 
 post office at least twenty d.iys previous to such meeting, and 
 this nutice must slate the tinvj, i)lace and object of the meeting, 
 and tlie amount of the proposed increase. (5) Of course this 
 increase of capital stock may be either in the form of common 
 stock or preferred slock, and it is, especially in the United 
 .States, a tavoriie method of raising money for the purpose of the 
 company, to make such suljsequent issue preferred stock. 
 Under our Act, it would seem that this increase of capital stock 
 is subject purely to the approval of the Governor in Council ; (6) 
 but where the increase is allowed, as in many of the States, upon 
 the mere sanction of the shareholders, in meeting assembled, it 
 has been frequ ently held that such increase could not be made 
 
 (I) Harrison r. Me.vicnn Ry. Co., L. K. 19 Eq. 358 ; Matthews v. Great 
 Northern Ry. Co.. 2S L. J. Ch. 375, 
 
 121 lloyt r. Quicksilver Mining Co., 17 Hun. 169. 
 f^j Not rei|uirc(l by Quebec Act. (4) Sec. 37." 
 'S) Sec. 37. (6) lbi<i. 
 
 I 
 I 
 
90 
 
 The Railway Law ok Canada. 
 
 until the whole of the original ca])ital stock had been subscribed 
 and paid-up. This would seem to he consonant with logic 
 and reason, and it is doubtful whether an increase of stock 
 would be authorized by tlie Governor in Council here, unless it 
 was shown that tlie whole of the original capital stock had been 
 subscribed and paid-up, and that it was necessary and proper for 
 the purposes of the company to obtain a further uniount of 
 money by an increase of the stock. 
 
 Snl)-i(lics and 4, ]„ addition to this, railways are frecpientlv assisted bv 
 
 bonuses. ... .11 r 1 • !• I .' r • 1 
 
 IMiblic money granted by way of sub.^idics by the Legislature 
 by grants of public lands, and by bonuses from municipal cor- 
 jjorations. (i) 
 
 ,(! 
 
 (I) Anactoftlie Legislature of Canada Imvinj; pioviiled tliat a railway 
 company should be entitled lo 4,000.000 acies of the waste lanils of the 
 Crown or. com]ilt;lion of il-.eir road, and a jnoporlionate quantity of such land.s 
 on completion of 20 miles of the line: Held, that a petition ofri;;lit i)resented 
 to the Lieutenant Governor of Ontario, addressed to Her Majesty, was the 
 jiroper jiroceedinjj for the juiriioje of enforcing the claim of the com|>any 
 against the Province. Can. Central ky.Co. r. The Oueen. 20 CJr. Cliy. 273. 
 
 A bydaw of the defendant cotporatiun, prnvidinj; for the delivtry of 
 debentures to a railway represented by the plainiilTs as a bonus to aid them in 
 constructing their lailway, having been adopted by a vote of the rate-payers, 
 was read a second and third time, and passed by the council, but vas neither 
 signed nor sealed ln-rause a month had not elapsed from its ihst publication, 
 the notice recjuired by 36 Vic, c. 4.S, s. 231, ss. 3, to be apjiended to the 
 copy of the by-law as published, having slated that the bylaw woulii be 
 taken into consideration after a month. 
 
 .Subsfctiuently a motion to read the by-law a second and third time \va- lu>t. 
 Later on after election of new council it was finally passed, signed and 
 sealed. The railway company were bound to begin within three years and 
 to finish the road within eight years, which they tailed to do within the time. 
 
 Held (affirming S O. K. 201) that the plaintiffs were not in a jiosition to 
 enforce the delivery of the debentures after the lapse of nine years from the 
 passing of the by-law, when a total change of circumstances had taken place, 
 and when the period fixed by jilaintirt's charter for the completion of the 
 railway had exi)ired. Canada Atlantic Ky. Co. :■. The Cnrpor.ition of the 
 city of Ottawa, 12 O. A.R. 234, affirmed in Supreme Court, 12 S. C. K. 365. 
 
 In consideration of the bonus granted by the plaintiffs to the defendants, 
 the latter agreed: (1) To bring their railway from Ingersoll to some point 
 on the line of the Southern Railway, not more than I2 a mile east of the 
 present passenger railway station of the Canada Southern Ry. Co. at St. 
 Thomas; and (2) to run all their passenger trains to and from a small 
 station on Church street. The defendants performed the llrst part of the 
 agreement, and also the second, as long as the Canada Southern Ry. Co. per- 
 mitted the use of their line from the point of junction to the small station on 
 Church street ; but on the refusal of the other company to continue this 
 privilege, the defendants discontinued the performance of this part of their 
 agreement. 
 
 I 
 
 I!! 
 
Financing of Railway Companif.s. 
 
 9» 
 
 5. Besides these means of obtaining money, tlie directors Iiave Issue of pro 
 
 , • • rpi .• iiiissory notes 
 
 l)o\ver to borrow money in various ways. The company, acting; ^^^^j ^^^(^^ 
 
 Held, that this was not n caso in which defendants should be directed 
 specirically to perform their contract as to the Church street station, hut that 
 the plaintifls were entitled to a reference as to damaf;es for breach thereof. 
 The Corpoiation of the city of St. Thomas :•. The C \' . K. Co., 15 O. K. 
 673, and in Appeal, 12 O. A. K. 273. 
 
 A by-law of the defendant municijiality provided that on the coni])lelion 
 ready for running of the E. & H. Ky. from Chatham to tlie V. S. Ry. crossing, 
 by a named day,.ind the construction and completion within two years froni 
 the date of such by-law of the whole track and road, with stations, freij;lit 
 sheds, sidinj,'S at such crossing and upon tlie completion of a bridge across the 
 Thames, and the conijilete construction of the road in otlier respects to the 
 satisfaction of the Commissioner of Public Works, and ujion tlie company run- 
 ning said road with all necessary .iccommodations for the public for one week, 
 the defendants should forthwith, within 2 years from the (lay the by-law took 
 effect (.v^tii Dec, 1882), deliver to the K.Sl H. Ky. Co. debentures to the 
 amount of $30,000. liy an agreement made prior to the |)atsing of tlie by law, 
 the company covenanted with the defendants .nmongsi other tliinys to run the 
 road « lien completed, and to buihl a station at or near the comer of f.'ol- 
 borne and William .streets, and in consideration thereof tlie defend.int agreed 
 to suhiiiit the by-law. fjion an action by the .a.ssignee of the E. iS: H. Ry. 
 Co. to Compel delivery of the debentures, the defendants counter-claimed for 
 damages for breach of agreement and (or a spteilic performance. The 
 engineer named by the commissioner of 1'. \V. granted a ceitdicate as to 
 comjilelion of the work. The defendants claimed the right to have con- 
 tinuous use of the station "at or near the corner of CollKirne and William 
 streets " enforced by the Court. 
 
 Held, affirming Cameron, C. J., that the certificate of tlie engineer estali- 
 lislied a sufficient performance coupled with the fact that the roail liad aciiially 
 been run for a week, that the covenants in the agreements were indi^'eiident, 
 and non-compliance would not be a valid defence to the demand ; but that 
 under the agreement and by-law the station formed part of the general under- 
 taking, and the oblig.ition could not be limited to its mere construction as 
 separate from its use, and defend.ints were entitled to siiceilic performance as 
 respects such station; and tliat there should be reference to asceUain the 
 damages of the defendants on their counterclaim. 
 
 Held, al>o, that any objections to the by-law were cured by its registration 
 under 44 Vic, c. 24, § 2>S, no action to set it aside iiaviiig been taken within 
 three months, and tiiat the Statute apjilied although the debentures had not 
 been issued, liickford e-. Chatham, 14 O. A. R. 3^. Afl'irmed in .Supreme 
 Court with minor dil'terences, 16 .S. C. R. 235. 
 
 A by-law to aid a railway company by $75,o(x), w.is introduced into the 
 county council of Peterborough, llie by-law was read twice imly, and was 
 subsequently voted on by raie-pa)er5. When the voting took place there 
 was no power in the municipality to grant a bonus, but nibsequently an 
 Act was passed, declaring the by-law as valid as if it had been read a third 
 time, and that it should be legal and binding as if passed after the Act. llie 
 company subsequently notified the council to send the debentures to trustees 
 appointed under an Act 34 Vic. (Ont,), c. 48, and the council next year 
 formally repudiated all liability under the by-law by notice, and had collected 
 no money or made a sinking fund. 
 
 The company until seven years later made no demand for debentures and 
 then applied for a mandamus to compel delivery to the tru^tees. 
 
 Held, that the effect of the Statute passed 34 Vic. (Ont.), c. 48, apart 
 
9' 
 
 Til', KaII.WAV I, aw t)K C\NAI)\. 
 
 li 
 
 by the president, or vice |»resi(JeiU, or any other ofticer aiitlior- 
 i/'ilhy the l)y laws ol' the company, may h-come a ]):irty to pro- 
 missory notes, or l)illsof cxciiange, countersigned by tlie secretary 
 
 fif)tii any elTcct it niijjlit Inve of ri'coi>nizin(^ the I'xistfnce of the railway 
 coiiipany, was not to lcj;ali/,e the l>y-law in favor of the company, Imt was 
 meifly to make it valid a: if read a third tiini', or as if the municipality hail 
 ])o\vcr lo fjive a bonus to the company, and llnre \>v\u^ certain defects in the 
 i)y-law not cured liy the Statute, llie a|ipellants could not recover the bonus 
 from drfi'ndanl~. I he (irand Junctnui \<y. Co. :'. 'I'he Corporation of 
 County of I'eteiliorou^;h, /i S, C. K. 76. /'rry Crinifi/, jiul{;ment maintain- 
 inp, hut on other j^rounds. l-'iJr l^.K., It, App. Cas 136. 
 
 Under 44-4,S Vic, c. 40, § 2 (T. (]>.), jiassed on a petition of the 
 (Jueliec Central Railway Company, afier notice yiven l)y them asking fir an 
 aniendmenl of their charter, the town of Levis pas-ed a hydaw j^Miaranteeing 
 to pay to the (Jiiehec ('(antral Railway Company the whcde cost of expro|)ria- 
 tion for right of way for the extension of their railway to dee]> water, over 
 and ah've $vi.oo(). 'I'he apju-llants (rate-payers of I.i'vis) ap|)lied for and 
 obtained an mjunction to stay further proceedings on this l)ydaw on the 
 ground of dk'gaiity. 
 
 The jiroxiso in section 2 of the Act under wliicli the corporation of the town 
 of Levis Contended that the by-law was authon/ed is as follows : " I'rovided 
 that within thirty days from the sanction of the ])iesent Act the corporation of 
 the town of Levis furnishes the said company with its said guaiaiiti-e and 
 obligation to pay all excess over $50,000 of the cost of expropriation for the 
 right of way." 
 
 Hy the Act of incorporation of the town of Levis, no nower or authority is 
 given to the corporation to give such guarantee. The Statute 44 45 Vic, cap. 
 40. was ]iassed 30111 June. iSSi, and the by law 27111 July following. 
 
 Held (reversing (J. li.j, that the .Statute in (jueslion did not .lutliori/e the 
 corporation if Levis to iinjiose burdens upon the inuniciiiality which were 
 not authorized by their .Acts of incorporation or other s]>ecial legislative 
 authority, and therefore the by law was invalid and injunction sustained. The 
 (^)uebcc Warehouse Co. r. the Town of Levis, 1 1 .S. C. R. 6C6. 
 
 Held, by Sujirenie Court affirming judgment of (). 15., that a debenture 
 being a negotiable Instrument, a railway company that has complied with all 
 the conditions precedent stated in the bylaw to the issuing and delivery of de- 
 benUiresgianted by a municipality is entitled to said debentures free from any 
 declaraiion on their face of conditions mentioned in the by-law to be performed 
 in future, such as the futuie keeping up of the road. Article 962 Municipal 
 Code. L. C. Parish of St. Cesaire c. MacFarlane, 14 .S. C. R. 73S. 
 
 A municipal corporation under authority of by law issued and handed to 
 the Treasurer of the jirovinceof Quebec $50,000 of its debentures as a subsidy 
 to a railway company, the same to be paid over to the company in the manner 
 (and subject to the same conditions) in which the Government iJiovincial 
 subsidy was payable under 44-45 Vic, cap. 2, 'it 19, when the road was com- 
 pleted and in good runningorder,to the satisfaction of the Lieuten.int Governor 
 in Council. The debentures were signed by S. M., who was elected warden, 
 and took and held possession of the office after W.J, P. had verbally resigned 
 the position. 
 
 In an .action by the railway company to recover from the Treasurer of the 
 Province the $50,000 debentures after the Government bonus had been paid, 
 in which action the municipal corporation was mis en cause as a co-defendant, 
 the Provincial Treasurer pleaded bydemurrer only, which was over-ruled, and 
 
FiNANciNc. (IK Railway Cd.mi'aniks. 
 
 93 
 
 for amounts not less than $ioo. (i) Notes and bills of cxcliango 
 so drawn and signed arc binding upon the tomiiany witlioul liie 
 necessity of liaving llio seal of tiie company allixed, and it i-i 
 provided tliateveiy such note or l)ill of exchange shall he iire- 
 sumed to h;ive been made with proper authority until )he con- 
 trary i> shown. (2) Hut the company is of course not authoi- 
 izcd to issiii; any note or bill payable to bearer, or intended to be 
 circulated as money or as the note or bill of a I)ank. (3) 
 
 KoimIs, DelioiitiU'eH, Kic. 
 
 <{. The directors n)ay also, uniler the authority of the shux- Issue uf, 
 
 hoKlers yiven at a siiecial general meeting of the sharehokkis, '""';°'''''-^'"'" 
 
 '^ ' ^ . .... "fsliarc- 
 
 called after due notice as requiied for any special mcetmg of thti,„ijeis. 
 
 company, provided that two-thirds in value of the subscribed 
 
 stock of the company is represented at the meeting by (pialified 
 
 the County of Pontiac pleaded general denial and thattiie debentures were IIIl-- 
 gally signed. 
 
 Held, tliat tlie debentures si(;ned by llic warden a'c facto were perfectly 
 legal, 
 
 lliat as llie Provincial Treasurer liad admitted by liis pleadings that tliu 
 road liad been complL-ted to the satisfaction of tlie Lieutenant Oovernor in 
 Council, llie onus was on tlif munitipal corporation inis en tiiitst' to jirovL' that 
 the (lovcrntueiit had not adeil in conformity with the statute. Corporation of 
 County of routine c. lion. J. G. Koss, 17 S. C. R. 406. 
 
 In consivlcration of a bonus granted by the plaiiitifi's, the \V. G. iS: \'>. 
 Ry, Co. covenanted: "To erect and maintain a permanent frtight and 
 passeiij^er station at G." .Sliortly afterwards the load was leased, with notice 
 of this iigreement to the defendants, who discontinued Cj as a regular station, 
 merely stopping there when there were any pa-.sengers to be let down or 
 taken u]). 
 
 Held, affirming the decree of .'^pragge, J., 25 (Jr. S6, that the mere 
 erection of .station buildings was not a fullillment of tli'.' covenant, and that 
 the municipality was entitled to have it specifically jierformed. The corpora- 
 tion of the township of Wallace r'. The G. W, Ry. Co., 3 (J. A. R. 44. 
 
 
 (i; Sec.gS. 
 
 (2) Ibid. .Sec. 5 of 16 \'ic., ca]). 241, gives power to the Midland Ry. 
 Co. to become panics to bil! , and enacis: " Any bill of exchange drawn, 
 accepted or endorsed by the ]iicsident of the company, with the couiUcr- 
 signaiure of ihe secretary of the company, and under the authority of a tpiorum 
 of a majority of ihe directors, jihall be liinding on llie company," etc., etc. 
 f'/V/e" report of ease and Act, A bill of E.\cliaiige addressed to the rresideiU 
 Midland Railway, Port Hope, was accepted as follows : — "For the Midlantl 
 Railway of Canada. Accepted, II, Read, Secretary; Geo. A. Cox, Presi- 
 dent ; " the latter being then the president of the company, //n/d, airirming 
 Q.B. (44 U. C. R., 542), That the defendant Cox was personally liable 
 (Patterson & Morrison, J. J. A., Diss.). Madden c. Cox, 5 O. A. R. 473. 
 
 (3) Sec. 98. 
 
■■■ 
 
 I 
 
 94 
 
 The Railway Law ok Canada. 
 
 Time .iml 
 place of pay- 
 niL'iU. 
 Kate of 
 inlciL'Si . 
 
 I'Ollll. 
 
 Sale and 
 l.ledye. 
 
 shareholders, (i) issue bonds, debentures, or other securities, 
 signed by the president or otiier presiding officer, and counter- 
 signed by the secretary. (2) 
 
 Tiic issue of these bonds is subject to the provisions contained 
 in the general Act, and to any sjiecial provisions which may be 
 contained in the charier of the company. 
 
 7. 'I'liey may be made ])ayable at such limes and places, and 
 in sucli manner, and may bear sucii rate of interest, not 
 exceeding six per cent., as the directors may think proper. (3) 
 
 8. Tliey are generally issued in printed form, and it is pro- 
 vided that the signatures to the bonds or debentures may be 
 engraved. (4) 
 
 1). 'J'hese bonds or debentures may be issued, sold or 
 . , i)ledged by the directors, at the best i)rice and on the best terms 
 
 riir]Kise to be ' ° ■'_ , ' ' 
 
 appliiil in. and conditions that they can obtain, for the ])urpose of 
 
 raising money for the prosecution of the undertaking, (5) but 
 
 none of these debentures may be for a less sum than $100. (6) 
 
 Limit of issue 1(). It niiist be remembered that if any limit is fixed by tiie 
 must not be i;i,(^.cial Act, the amount of bonds or debentures to be issued 
 
 e.\eee.!e(l. ' , , . n 
 
 must not be exceeded. (7) 
 
 Re-issue. xl. Tile power of issuing bonds is not exhausted by the 
 
 total authorized issue, but may be exercised from lime to time 
 upon the bonds constituting such issue being withdrawn or paid 
 off and cancelled. (8) 
 
 Kisirietion of 1"^. Previous to the ])assing of 55-56 Vic, cap. 27, the issue 
 powers (now ^^j- |j,j,-,,]s or debentures was prohibited until 20 per cent, of the 
 
 rosl had been actually expended on the work; but by that Act 
 
 this restriction has been removed. 
 
 1 JJ, 'i'hese bonds or debentures are secured by a mortgage 
 deed, by wiiich a mortgage and lien may be created upon the 
 
 Mortga 
 deed. 
 
 (1) No restrictions under Quebec Act as to meeting, etc., company may 
 borrow and issue bonds, etc., and liypotliecate the lands, tolls, etc., of the 
 company as security. R. S. Q. Art. 5132 (il). 
 
 (2) Sec. 93. 
 
 (3) !^ec.93. (4) H''''- 
 
 (5) Ibid., ss. 2. (6) Ibid., ss. 3. 
 
 (7> lbid.,ss. 4. (8) Ibid.jSs. 4, 
 
 Vl 
 
P'iNANCING OF RAILWAY COMPANIES. 
 
 95 
 
 wliole of the properly, assets, rents and revenues of the company, 
 both present and future, as :viay be described in tlie deedj (i) 
 but the rents and revenues of the railway are subject in tlie first 
 instance to the payment of any penalty imposed for noncom- 
 ])liance with the requirements of the Ac respecting returns to 
 tlie minister, and next to the payment of the working expenses 
 of the railway, which payments take precedence of the rights of 
 tJic holders of the bonds. (2) 
 
 Uy the mortgage deed, any powers, rights and remedies may 
 be given to the bondholders or the trustees, not inconsistent 
 with the provisions of the Act, or the holders may be restricted 
 in the exercise of any jiower, privilege or remedy granted by the 
 Act. (3) 
 
 14. 'Hicse bonds or debentures so issued constitute a first Bonds a fust 
 IMctVrential claim and charge upon the property of the comjiany, *^^^'"^' 
 and its franchises, lolls, income, rents and revenues, and all 
 projierty of every kind and description after the satisfaction of 
 tile payment.; just mentioned. (4) 
 
 li*. By the mortgage deed securing the bonds or debentures, Trustees for 
 trustees are ajipointed, in whose favor, as representing the ^°"'"'"''''^'''' 
 holders, all the property, revenues and franchises of the company 
 are mortgaged; 
 
 l(>. And each holder of the bonds is deemed to be a mortgagee Bomlhol.lers 
 /;v ra/a with all the other holders, but no proceedings can be ™°'''^'''^S^''^'- 
 taken by law or under the Act to enforce payment of these 
 bonds, or the interest upon them, except tlirought the trustees 
 a]jpoinled by the mortgage deed. (5) 
 
 IT. The interest on these bonds is generally made payable interest, 
 semi-annually, at a fixed date, and detachable coupons are affixed Coupons, 
 to the bonds, which are generally made payable to bearer, either 
 at the office of the company or more generally at some bank. (6) 
 
 (I) Sec. 94. 
 
 l~>l^''''^- (3) Il'i'l.,ss. 2. 
 
 'j^ \«"=:95- (5) Il,i,i., ss. 2. 
 
 (6) Article 1069 of the Civil Code applies to the coupon, of bonds 
 nu.l interest runs on such coupons from the dates they respectively fall <hie 
 N Uhout proof that the debtor was put in default otherwise than bv the mere 
 Lapse of lime. Desrosiers r. M. 1>. \-, B. Ky., 28 L. C. J. i, in Re'view .883. 
 
 As U. .he validity of bonds issued when the conditions imposed on the 
 
 I 
 
c/> 
 
 The Railway Law of Canada. 
 
 Bondholtlers' 
 position. 
 
 Powers of 
 bondholders. 
 
 ,li 
 
 18. It will be seen at once that by means of the issue of 
 bonds and debentures such as these, the company is given a 
 very important means of raising money for the purposes of its 
 undertaking ; and the holders of the bonds are secured by the 
 mortgage upon the property and franchises of the company ; 
 (i) and are put in a better position than the shareholders 
 themselves, inasmuch as the holders of the bonds take pre- 
 cedence of all other creditors, and the shareholders are only 
 entitled to be paid after the creditors' claims have been satisfied. 
 
 lt>. The powers of the holders of the bonds in the case of 
 non-payment of principal or interest are, that at the first annua! 
 general meeting of the company, after default has occurred in 
 paying the principal or interest on any of the bonds, and at ail 
 subsequent meetings, the holders have the right to vote, and to 
 be elected as directors, in the same manner as shareholders 
 would, (2) that is to say, that they have the same number of 
 votes as shareholders, holding an equivalent amount of stock. 
 But these rights, be it observed, cannot be exercised unless it is 
 so provided by the mortgage deed, nor unless the bonds or 
 debentures have been registered in the name of the holder, in 
 the same manner as the shares of the company are registered, 
 at least ten days previous to the meeting at which the holder 
 claims to excise his right to vote ; (3) but the company are 
 bound, on demand, to regis'.er such bonds, and the bonds are 
 thereafter transferable in the same manner as the shares of the 
 
 railway company h.ive not been substantially fulfilled. See The Corporation 
 of the City of (Juel)ec i\ The Quebec Central Ry. Co., lo S. C. K. 563. 
 liickford ti. Grand Junction Ry. Co., i S. C. R. C96 ; Cassils I)if;. 423. 
 iiijra, p. 97. 
 
 (j) A holder of railway bonds lias the rifjhl by conservatory proces- 
 to jirevent roUini; slock ^viiich is hypothecated for the payment of the 
 bonds from being removed from the road. Wyatt c- Senecal, 4 Q. L. R. 
 76, also I L. N. 98. 
 
 In an action between a preferential bomlholder and the company, the 
 Court cannot adjudicate with respect to priority of hypothec or lien of such, 
 bondholder, nor in such action can the Court declare that the road rolling 
 stock, etc., are not susceptible of sale bv the sherilf. Morrison v, G. T. Ry, 
 Co, 5 L. C. J. 313, S. C. 1861. 
 
 (2) Sec. 96. See The M. P. iS: B. Ry. Co. & The Hochelaga Uank, 27 
 L. C.J. 164, Q.li. 1883. 
 
 (3) Sec. 96, ss. 2. 
 
i 
 
 Financing of Railway Companies. 
 
 i. 
 
 97 
 
 capital stock, (i) The bonds so issued by the directors may 
 be payable either to order or to bearer. (2) 
 
 ^O. Tliey are generally made payable to bearer, and in sucli 'I'mnsfer. 
 case are transferaljle by delivery, tliat is to say, transferable from 
 hand to hand without endorsement, unless they are registered as 
 just mentioned ; but once registered they are only transferable 
 by written transfers upon the books of the company in the same 
 manner as shares in the capital stock. (3) 
 
 !il. Having stated the clauses of the .Act with regard to ilie Juvi^pnulence. 
 powers of the company as to morlaging property, the issue of 
 bonds and similar securities, and the rights of tlie holders under 
 the Act, it may be convenient to consider some of tlie more 
 important judicial decisions bearing upon questions which have 
 arisen under the Act or similar provisions of other Acts. 
 
 ;iJi. An important case involving the jjowcr to mortgage. Power to 
 
 arising under similar provisions of a former Railway .Act, is that of^'"'™'^ '^"^ 
 ° .; ' ■ mortgage. 
 
 Bickford v. Grand Junction Ky. Co. (4) The Grand Junction 
 Ry. Co. having statutory authority to borrow money, issue bonds 
 or other securities, to hypothecate the lands, tolls, and other pro- 
 perty of the company, and to sell or dispose of property re- 
 quired for the purposes of the company, entered into an agree- 
 ment with a contractor for building its road, by which the con- 
 tractor was to receive in payment certain municipal and other 
 securities, and the balance in the first mortgage bonds of the 
 comjiany, upon the comi)letion of the work. After building a 
 portion of the road, the contractor was unable to i)rocurc iron 
 for it, and the railway company, to enable him to obtain it, made 
 a m )rtgage, to one Buchanan, as trustee, of a portion of its road, 
 to secure the payment to the Bank of Montreal of the notes of 
 the contractor given for the price of the iron ; providing hr-wever, 
 that, in case of his failure to pay the notes, the mortgagee's sole 
 recourse should be against the property and not agairst the com- 
 pany. The vendors of the iron retained a lien upon it until it 
 should be laid upon the track. The contractor, after laying a 
 
 (i) St'C. 96, ss 2. 
 (3) ^ei--- 97- 
 
 (2) .Sec. 97. 
 (4) I S. C. R. 696. 
 7 
 
! ^ 
 
 'fwrr 
 
 ^8 
 
 The Railway I aw of Canada. 
 
 m] 
 
 J 
 
 ,11 
 
 small part of the iron, became insolvent, and a large quantity 
 of the iron which had been delivered to him, but which had not 
 been laid upon the road, was sold by vendors at a large loss upon 
 the price at which the iron was purchased. The holders of the 
 mortgage on the railway then sought to enforce it for the value 
 of the iron actually laid upon the track, as well as for the loss 
 resulting from the re-sale of the iron. The railway company, 
 while not objecting to paying the price of the iron actually placed 
 ujjon the road, objected to paying the loss arising from the re- 
 sale, and contended that the mortgage was uUra vires. 
 
 The Court of Appeal of Ontario started with the principle, 
 tliat without express legislative authority a mortgage of tlie cor- 
 porate property of a railway company could not be made; and 
 from this deduced the conclusion, that a mortgage, to be effectual, 
 must be within the terms of the authority given to create it. The 
 only authority this company had to mortgage its properly was 
 given to secure the repayment of money borrowed for the pur- 
 pose of completing or maintaining the road ; whereas the debt 
 secured by the mortgage in this case was that of the contractor. 
 The mortgage was a pledge, by way of collateral security, that 
 the contractor should pay his own debt; and the Court regarded 
 such a mortgage as beyond the power of the company, and inva- 
 lid, even if assented to or ratified by every stockholder. The 
 court also declared that, inasmuch as the authority given to the 
 company was to mortgage its property, toils and revenues, the 
 company could mortgage only the whole undertaking, and that a 
 mortgage of a portion of the line which the company was consti- 
 luitd to build was void, (i) 
 
 On appeal from the judgment of the Court of Appeals of Ont- 
 ario, the Supreme Court of Canada reversed this judgment and 
 held tlie mortgage valid. (2) The court laid down the jjropo- 
 sition that every corporation has the power to mortgage its pro- 
 perty for the purposes of tlie undertaking, unless this power be 
 limited by its charter ^r by statute; although such limitation 
 may be deduced either from the object of tiie corporation being 
 limited to certain specific things, or from its property being subject 
 
 (1) 23 Grant's Chy. 302. 
 
 (2) I S, C.R. 696. 
 
 A 
 
 ■i 
 
 '.1 
 
Financing of Rmlway Companies. 
 
 99 
 
 to charges or trusts in favor of the public, with which a mortgage 
 would be inconsistent, (i) 
 
 'I'he Statutes, however, confer express power to mortgage 
 the company's property for the payment of loans and debentures. 
 This statutory power to mortgage for a special purpose does not 
 restrict the general power of the company incidental to its exist- 
 ence to deal with its property by way of mortgage. 
 
 The mortgage, moreover, was within the scope of tlie powers 
 conferred upon the company to construct and work a railway 
 and to alienate and to dispose of lands for that purpose. 
 
 " The rails, for the price of which the mortgage was given, 
 " were indispensable to enable the company to carry out its 
 " undertaking. The company might have purchased them directly 
 '• irom the vendors. It was found more convenient, however, 
 '• 10 make a contract for the construction of the railway, by 
 '' which the contractor undertook to furnish the iron. 
 
 " Having power to give a mortgage to secure the price of rails, 
 " ii can make no difference that they have given tlio mortgage as 
 '■ sureties for the contractor, and not as direct purchasers. 
 " Indirectly, it is given to secure the price of the rails. 
 
 " Had the mortgage been given for any object foreign to, or 
 inconsistent with, the purposes of the incorporation, then, no 
 doubt, it would liave been ultra vires of the company. A 
 familiar instance of a railway company exceeding the limits 
 of its undertaking is afforded by a well-known case, in which sucli 
 a corporation added to its legitimate business that of a line of 
 steamsliip'^. Had this mortgage been given in aid or furtherance 
 of any similarly unauthorized enterprise, it would, of course, have 
 been li/tra vires; but it is manifest that sucii was not ihe case 
 here, and that the sole object of the corporation was to attain the 
 end for wliich it had been created." (2) 
 
 Furthermore, the mortgage cannot be considered wholly void 
 w!icn it creates a good cliarge upon any ])art of the company's 
 property, although it includes franchises and property which may 
 be so impressed with a trust in favor of tlie public that it is beyond 
 tlie jjower of the company to deal with them. 
 
 (1) IVr Stron!,r,J.,m p, 730. 
 
 (2) Strong, J., at pp. 732-33. 
 
100 
 
 The Railway Law of Canada, 
 
 3 i 
 
 !:■ I 
 
 Conceding, say the court, that the mortgage, if confined to tlie 
 franchise and to \] e railway and its adjuncts, would have been 
 void as being je on subjects exha coiinnercium, it does 
 
 not follow li.,: ,in_, -^ot be a good charge on the other lands 
 over which lliv, > ■ji.ij u.y had power of free disposition, and for 
 that reason alone the order of the court below should be re- 
 versed, (i) 
 
 lowei 10 give 23. 'Ihe case of Bickfi)d\. (Jr and Junction Jiy. Co. was 
 
 lien on rail- recently followed in the case of Cliarlcbois v. The Great North 
 
 way and alic- 
 
 iiaic lands. Weit Central Ry. Co., (2) which decided that it was intra vires of 
 
 a railway company to give a contractor a lien and first charge on 
 
 the part of the railway whicii he constructed, and tliat a railw.iy 
 
 company has a general power to give securities for purposes 
 
 within the scope of the power conferred upon tb.e comiJany to 
 
 construct and operate the railway, unless this power is expressly 
 
 negatived in the Act of incor|)oration, and express power to 
 
 borrow, and give specified securities, will not exclude the gcutial 
 
 power. (3) 
 
 Mr. Jones, in his work on railroad securities, disa])proves of 
 the judgment in Bickfoni w Grand Junction Ry. Co., in tliil, 
 conceding its correctness as applied to the case in hand, ii con- 
 tains some propositions and reasoning regarding tie power of 
 railway companies to alienate lands, not in accordant' with the 
 best English and American authorities. (4) 
 
 But the present Dominion Railway Act (as amended by 53 
 Vic, cap. 2<S, and 55-56 Vic, cap. 27) contains provisions au- 
 thorizing a company to alienate, sell, and dispose of the: lands 
 obtained by them Irom the Crown, or given to them by any 
 corporation or other party, for the construction, mainte- 
 nance, accommodation and use of the railway. It is true that 
 by section 90, par. {c) of that Act, th.e power to alienate and 
 dispose of lands purchased is lestricted to so nuich thereof 
 as is not necessary for the i)'irposes of the road. But by jjar. 
 (i) added by the amending Acts, the power to sell or otherwise 
 dispose of lands obtained either from the Crown, corporations, 
 or persons, seems unlimited. 
 
 (I) I S. C. K. at p. 
 
 (2) 9 Man. I. 
 
 (3) And see Win. & 11. 15. Co. t. Mann 7 Man. bi. 
 
 (4) § 10. 
 
I'lNANCiNc; OF Railway Companies. 
 
 lOI 
 
 ;o tVie 
 been 
 does 
 lands 
 ul for 
 be le- 
 
 'o. was 
 
 North 
 •I ires of 
 urge on 
 railway 
 urposes 
 5any to 
 <pressly 
 ower to 
 
 gcncial 
 
 roves ot 
 in th.ii., 
 ,. il con- 
 power ot 
 with the 
 
 d by 53 
 isions au- 
 u; lands 
 in by any 
 mainte- 
 true that 
 nate and 
 1 thereof 
 ut by par. 
 otherwise 
 porations, 
 
 However, the above decision goes the length of holding that 
 the express power to borrow and to give tlie securities specified 
 by the Statute will not negative or exclude the general power 
 tlic company has to dispose of lands and give other securities 
 for i)urposes within tiie scops of the po>vers conferred upon the 
 company to construct and operate the railway, (i) 
 
 ♦^4. The right to be a corporation is not of course susceptible i»(nvert« 
 of alienation by mortgage or otherwise, and this is recognized in 'i'';"^''- '••"' 
 'J'iie Railway Act, under sections 278-280. Tiie franchise men- 
 tioi.ed in article 95 means such of the compiny's francliises or 
 privileges as will enable the grantee to have tiie same use and 
 beneficial enjoyment of the property which the company itself 
 had. (2) 
 
 'I'lie question debated by Strong, J., in Bickford v. Grand 
 Junction Rv. Co. (3) as an open one, viz., as to whether a rail- 
 way can mortgage or otherwise cliarge its franchise and under- 
 taking, is now set at rest by section 95 of The Railway Act. 
 
 Where the railroad passes into hands of persons not having 
 the iiiicessary corporate powers to operate it, special leave must 
 be olitained by act of Parliament to do so. (4) 
 
 *i5. It has l)een recently held in Ontario, (5) that, so long as sale oF 
 a railway is a going concern, bondholders have no right, where railway, 
 interest on their bonds is in arrears, to seize, or take, or sell, or 
 foreclose any part of the property of the company. Their 
 remedy is by the ai)pointnient of a receiver. 
 
 riic reasoning in this case was based upon, among others, the 
 leadnig Englisii case of Gardner v. Loiidon, Chatham & Dover 
 Ry. Co., (6) which appears to rest upon the consideration that, 
 inasmuch as Parliament has made no provision for tlie transfer 
 of its statutory powers, privileges, duties and obligations from a 
 railway corporation to any other person, wliether individual or 
 
 ^ 
 
 (1) And sec Cli;nlel)oiN 7.'. CX. W. C. Uy. Co., 9 Man,, at jip. 12, 13. 
 
 (2) Per Strong, J., in Bickford f. Grand Junction Ry. Co., I S. C. R. 
 
 737- 
 
 (3) .S'«/;vi, p. 99- 100. 
 
 (4) Sec 278 et seq ; ii'ii j7///v;, i>. 4. 
 
 (5) I'hleps T. The St. Catliarinus & Ni.ii^ara Central R. R. Co., 19 O. R. 
 501 ; Gait V, Erie, etc., Rv. Co , 14 Grant Chy. 499. 
 
 (6) L. R., 2Ch. 201. 
 
 i„.*a*' 
 
103 
 
 The Railway Law of Canada. 
 
 ^ I, 
 
 I I 
 
 i 
 
 ,|! 
 
 /" 
 
 corporate, it would be contrary to the jjolicy of the Legislature, 
 as disclosed in the general railway statutes, and in the special 
 acts incorporating railway companies, to permit creditors of any 
 class to issue execution which '.vould have the effect of destroy- 
 ing the undertaking or of preventing its completion. 
 
 However, it would appear by sections 278-280 of our Act, that 
 Parliament distinctly contemplated the sale of a railway at tlie 
 suit of a bondliolder or under any otlier lawful i)rocceding, and 
 its subsequent operation by the purchaser under licence from the 
 Minister of Railways, or under corporate powers granted by Par- 
 liament; and also the closing of the railway, or its being otherwise 
 dealt with, as the Railway Committee might determine on the 
 purchaser's failure to obtain such powers. 
 
 It is difficult to see, in view of these provisions of the Act, how 
 the reasoning upon which the Phelps case was arrived at could 
 be sustained, Andin Re(/fie/t/ v. Corporation of Wickhani (i) 
 the Privy Council decided that under the Canadian railway 
 statutes a railway may be taken in execution and sold, like 
 other immoveables, in ordinary cou'se of law. Tliis decision 
 \vas apparently overlooked in the Phelps case, as pointed out 
 by Bain, J., in Charkbois v. G. N. IV. C. Ry. Co. (2) 
 
 In Quebec the right to seize and sell a railway by ordinary 
 process of law has always been recognized, (3) and is endorsed 
 by the decision of the Privy Council in Reifficldv. Corporation 
 of IVickham ; (4) though this case seems to have turned some- 
 what upon the special provisions of the railway company's 
 charter. 
 
 The railway may be seized and sold by ordinary process of 
 law, even though subsidized by the Provincial Government. (5) 
 But held by the Court of Appeals of Quebec, that a railway 
 may not be sold in part, and is an indivisible thing, and can 
 
 (1) 33L.J., P.C. 170. 
 
 (2) 9 Man. II. 
 
 (3) Morrison z^. G. T. R. Co., 5 L. C.J. 313; Corporation of Co. of 
 Drummond t/. South Eastern Ry. Co., 24 L.C.J. 276; Hochelaga Bk. 7>. 
 M. P. B. Ry.Co., 4 L. N. 333; Ontario Car Co. v. Que. Central Ry. Co., 
 lo L. N. 12. 
 
 ^4) 33L.J.. P.C. 170. 
 
 (5) Wason Mfg. Co. ». Levis & Kennebec Ry.Co., 7Q.L. R.330, SCI;. 
 1880 reversing. 
 
Financing ok RAii.wAy Companies. 
 
 103 
 
 S.C.I;. 
 
 umlLTlal. 
 
 only be sold as a whole, (i) This decision would not apply 
 in the case of the sale of a part of a railway under the Domin- 
 ion Act, which distinctly contemplates the sale of any section of 
 a railway. (2) 
 
 S86. Bonds issued under the present Railway Act are a first i;,,i,i>, 
 preferential claim and charge upon the company and its fran- Lliari,'e 
 chise, undertaking, tolls and income, rents and revenues, and real^.',".' 
 and personal property at any time acquired. (3) This secures 
 everything to the mortgagees but the company's right to be a com- 
 pany ; and upon non-fulfillment, by the company, of tlic terms 
 of the deed, the mortgagees can come in under the deed of trust 
 and, through the trustees appointed thereunder, take possession 
 of and operate the ro.id for their own benefit. (4) For the 
 deeds of trust now in general vogue allow the trustees to 
 take possession of the road, upon a certain default on the jiart 
 of the company, and operate it, and after a further delay, if 
 necessary, to acquire the absolute right to the railway. 
 
 I Mr.-t 
 oil tlie 
 
 kill", 
 
 ic uiiiler- 
 
 27. While the word "undertaking" used in the section taken "i 
 alone would not /)/7'w£?/(:j(r/V include the lands of the company, ^^!^"'y:- 
 it does not necessarily exclude them. (5) " The word is ambigu- 
 ous, and may be construed as meaning the speculation generally, 
 or possibly it may be taken to include the land itself." (6) This 
 point is further illustrated by the case of the JVac Bnmscoick 
 and Canada Atlantic Ry . C). (7) By various acts of the 
 Imperial and local governments, this company was entitled to 
 grants of a large amount of land not connected with or neces- 
 sary for the completion of the railway. 
 
 This land the company had taken as a land company, with 
 the object of making it a source of profit by sale and otherwise. 
 It issued debentures, mortgaging to each holder the undertaking, 
 and all monies to arise from the sale of lands and all future calls, 
 
 (I) Stephen z^ Banque d'Hochelaqa, M. L. R., 2 Q. R. 401 (O B i8S6^ 
 of^c!^;,t^3i i:X^;'^.';;->^l---'e,.r. (Uedfield .. Corporatioi 
 
 (3) Sec. 95. 
 
 (4) Sec. 95, ss. 2. 
 
 (5) Myatt V. St. Helen & R. G. Ry. Co., 2 Q B ^64 
 
 (6) Coleridge, J., in same case at p. 1574 
 
 (7) Wickham V. N.B. & C. A. Ry. Co., L. R., i P. C. 64. 
 
 ^ 
 
104 
 
 Tuf, Raiiavav Law ov Canada. 
 
 \i 
 
 ,ii 
 
 ^^ 
 
 and all tolls, rolling stock, etc. ; pruviilcd, lliai iiotliing therein 
 contained s'lould be held to limit tlie i)o\ver of sale or appro- 
 l)rialion by the company of any of its lands, nor <:onslilute 
 a cliargo upon them. Certain judgment creditors of the com- 
 pany issued execution against the land of the company, where- 
 upon the debenture holders, in order to protect the lands of the 
 comjjany and restrain a sale of the lands by the judgment cred- 
 itors, instituted a suit in the Sujireme Couit of New ilrunswick, 
 and obtained an order appointing a receiver. 
 
 A motion for an injunction having been refused by or.e of the 
 judges, and, upon a})peal, again refused by the Supreme Court 
 of Judicature of the Province, an appeal was ;aken to the Privy 
 Council, which affirmed the decree of the Provincial Court. 
 
 Lord Chelmsford, delivering the judgment of their Lordships, 
 said (i) that the i)roviso wa^ not inconsistent with the sweeping 
 and general terms of the debentures, but merely explanatory of 
 them. " It seems clear to tlieir Ivordsliips that the lands not 
 being in terms granted by tlie mortgage debentures, the proviso 
 makes the intention of the parties perfectly clear, that no general 
 expression used in the grant was intended to compreiiend them, 
 and therefore that the debenture holders are not entitled to in- 
 terfere with the sale of tlie lands under the execution issued by 
 the judgment creditors. But the debenture holders insist, that 
 if they cannot stop the sale of the lands, they are entitled under 
 the terms of the de!)entures to all tlie money arising from such a 
 sale. It is quite clear, however, that the sales contemplated by 
 the grant are liiose which are to be made by the company in the 
 course of their regular operations. The judgment creditors take 
 what belonged to the company, but do not take under them, and 
 a sale by the sheriff under an execution is a sale by law, and 
 not by the company. 
 
 '• It is clear upon the whole case, that the lands of the company 
 did not pass to the mortgagees under the debenture, nor are they 
 entitled to the proceeds of the forced sales." (2) 
 
 A mortgage of the undertaking and all the real and personal 
 estate lias been held in England to include all the personal estate 
 
 (0 At p. 79. 
 (2) At p. So. 
 
I'iNANciNc. OK Railway Companif.s. 
 
 '05 
 
 herein 
 appro- 
 isliiule 
 e coni- 
 wlierc- 
 , of tlie 
 U crcd- 
 iiswick, 
 
 ; cif the 
 J Court 
 ic Privy 
 art. 
 
 irdships, 
 weeping 
 liitory of 
 uids not 
 proviso 
 o general 
 nd them, 
 led to in- 
 issued by 
 isist, that 
 led under 
 jm such a 
 iplated by 
 any in the 
 iitors take 
 them, and 
 y law, and 
 
 le company 
 lor are they 
 
 id personal 
 sonal estate 
 
 ■ income. 
 
 llicii existing, but not personalty subsequently acquired, (i) 
 ]hn tlie Railway .Act provides tluxt the bonds, etc., are to be a 
 cliaige upon ail the real and personal property, at any lime 
 ac(]uircd. (2) 
 
 **.S Tiie earnin-'s of a railway, while it is allowed to remain Tolls and 
 ill the possession of ihc company, are not subject to liie lien of 
 the mortgage, although in terms the mortgage covers the tolls of 
 till' r.jad. if at the same time the mortgage implies that the com- 
 ])any is to hold possession and receive the earnings of the road 
 um:! the mortgagee lakes possession. (3) Thus,wheiea railway 
 company executed to trustees a mortgage of its road, property and 
 franrhises, " together with the tolls, rents and profits to be had, 
 gained or levied therefrom " ; and the mortgage provided that 
 after default continued for a certain period, the trustees might 
 enter and lake jiossession ; but that until such time the company 
 should have the sole right of possession, use and management 
 of the mortgaged premises ; the mortgagees subsequently cora- 
 meiiccd a suit to foreclose the mortgage, but did noc take pos- 
 session of Ihe properly or ask for the appointment of a receiver in 
 the suit. Pendin-lhe suit, a creditor of the company obtained 
 judgment a!:;ainsl it, and attached in the iiands of an agent of the 
 company monies belonging to it received from tlie sale of 
 passenger tickets and for freight charges, .\ receiver was 
 subsequenllv appointed on behalf of the mortgagees, who also 
 claimed the funds attached in the hands of the agent and received 
 by him before the appointment of the receiver. The Supreme 
 Court of the United States adjudged that tlie mortgagees had no 
 rii;hl to the earnings of the road until tiiey look possession 
 through the receiver. (4) 
 
 This point was referred to by Strong, J., in IVallbriJge v. 
 larvell. (5) The learned judge said : " In assenting to the 
 judgment of the vnxxK dismissing these appeals, I do not by any 
 means intend to preclude myself in future, '^hould the question 
 be raised in proper form and in an appropriate case from consid- 
 
 (\) New Clyilock Sheet 61: Bar Iron Co. in re, L. R., 6 Eq. 514. 
 
 (2) Sec 05. (3) Jones, R. R. Securities, § 1 14. 
 
 i'4) tjilinan r. Ills, it Miss Telegraph Co., 91 U. S. 603 ; see also 
 Aiiit-rican Biidj^e Co. v. [lei(Jell)ach, 94 U. S. 798; Galveston R. R. Co. t). 
 Cowdvey. II Wall. 459, 
 
 (O 18S. C. R. I. 
 
 1^^ 
 
io6 
 
 'I'liK Railway Law ov Canada. 
 
 ,li 
 
 III 
 
 ering whether tlie principle, whicl) is now universally recognized 
 in the United States as to the applicability of current earnings to 
 current exj)enses, incurred either whilst or before railway property 
 comes under the control of the court, by being placed, at the 
 instance of mortgagees, in the hands of a receiver, in preference 
 to mortgage creditors whose security has priority of date over the 
 oi)ligation tiuis incurred for working expenses, siiould be adopted 
 by our courts. This doctrine is now finally settled in the 
 United States, whore railway mortgages exactly resemble those in 
 use with us, and which do not at all resemble tiie securities of 
 debenture iiolders under the English system of securities for 
 borrowed capital ; and the practice referred to is so pregnant with 
 justice, good faith and equity that there may be found strong 
 reasons for applying it here when the question arises." (i) 
 
 While the company remains in possession of the road, the right 
 to api)ly enough of the income to operate the road cannot be 
 quest: uied. The amount to be so applied is within the discretion 
 of the company. The same discretion extends to the surplus. 
 It is for the comjiany to decide what shall be done with it. (2) 
 
 Afieiiicqiiirtd 39. Section 95 of the Act includes, as subject to the pre- 
 jTiiiit). ferential claim of the bondholders, property at any time 
 acquired, which of course implies that property acquired by the 
 railway after the issue of bonds is subject thereto. Generally, 
 such mortgage can only attach to such property in the condition 
 in which it comes into the mortgagor's hands. 
 
 Thus it has been lield that a mechanic's lien for work done 
 and materials furnished in building for a railroad company 
 docks, wharves and piers, upon a branch road acquired after the 
 making of the mortgage, takes precedence of the mortgage. (3) 
 
 Vendor'^ lien. 30. l>ut this rule does not apply to an unpaid vendor's lien 
 where the material supplied by the vendor becomes amalga- 
 mated with and a part of the whole railway, as in the case of 
 rails, and dierefore subject to the mortgage. And this is the 
 rule both under the Quebec law and the English law. (4) 
 
 (1) At p. 4- 
 
 (2) Gilman v. Ills. & Miss. Telegraph Co., 91 U. S. 603. 
 
 (-,-> Williamson r. N. J. Southern Ry. Co,, 28 N. J. Eq. 277-298, 29 
 lb. 31 1 i U. S. V. New Orleans R.R. Co., 12 Wall. 362-364. 
 
 (4)Wallbriilge v. Farwell, 18 S. C. R. 7; and see Galveston R.R. Co. 
 V. Cowthey, 11 Wall. 459. 
 
 ^ 
 
I 
 
 KiNANCiNG OK Railway Companies. 
 
 lo: 
 
 .'{1. But in the case of rolling stock it becomes a (nic.ition Uollinj; >iuck 
 whetl'er such slock forms a part of tiie realty or not. Under —Ijj'^'y''' 
 the law of Quebec it does, becoming immoveable by destination. 
 (i) And it has been held by the Supreme Court that the uni)aid 
 vendor of rars siii)plicd and delivered to the company loses 
 his privilege for their price, because they had become immoveable 
 by destination, and the railway to whicii they were attached was 
 mortgaged and had j^assed into the hands of third ijariic . ; and 
 that even considered as moveables the rolling stock became 
 affected and charged by virtue of the Statute and the mortgage, 
 as security to the bondholders with right of priority over all 
 other creditors, including ihe unpaid vendors. (2) 
 
 The Supreme Court of the United States, however, has decided 
 that such cars, etc., are loose property, susceptible of sejiarate 
 ownership and separate liens; and that such liens, if binding on 
 the railway company itself, arc unaffected by a prior general 
 mortgage given by the company, and paramount thereto. (3) 
 
 But in this country the decision of our Supreme Court would 
 seem to have decided the question under our statutory law, at 
 least in the Province of Quebec. The bonds in that case were 
 issued, and the bondholders' rights declared, under a special 
 Act of Parliament, which declared such bonds to be a first lien, 
 privilege and mortgage upon the railway, its franchises and all 
 its property, tolls and income, profits and improvements and 
 renewals thereof. This statute was regarded by Mr. Justice 
 Taschereau, who rendered the principal judgment, as setting 
 at rest all possible controversy as to the relative rank of the 
 unpaid vendor's claim and that of the trustees by enacting that 
 the trustees should be first. (4) It was argued for appellant 
 that the Statute merely says that the conveyance shall be " d 
 first charge," and that this does not mean t/ie first charge. But 
 the learned judge thought there was no ground whatever for 
 that distinction. The decision would a fortiori apply to any 
 railway under the present Act where the language used is 
 that " the bonds, etc., shall be taken and considered to be the 
 
 (i)C.C.379. 
 
 (2) Ontario Car Co, i'. Farwell, 18 S. C. R. I. 
 
 (3) U. S. 0. New Orleans R.R. Co., 12 Wall. 362. 
 
 (4) 18 S. C. R. at p. 15. 
 
— ^ tVM!l» I 
 
 1 08 
 
 The Railway Law ok Canada. 
 
 Ji 
 
 first ])refercntial claim and charge upon the company and the 
 Irancliise, etc., and real and personal property thereo!' at any 
 lime acquired." In the Harwell case, however, tlie trust inden- 
 ture authorized the payment by the trustees " of all legal claims 
 arising from the operation of the railway, including damages 
 caused by accidents and all other charges ; " and it was the 
 opinion of Mr. Justice Gwynne that tiic appellants might be 
 entitled to an equitable decree, framed with due regard to the 
 otlicr necessary appropriations of the income in accordance with 
 the provision of sucii trust indenture, (i) 
 
 The most intelligent view would seem to regard rolling stock 
 as being of the nature of immoveables. 
 
 In the Province of Quebec tiic question is free from doubt, 
 rolling stock there being held to be immoveable by destination. 
 
 (2) 
 
 In tlie United States the question is much debated. But in 
 favor of the above contention it may be argued that the right to 
 buy and own rolling stock is a franchise, and can only be exer- 
 cised as an accessory to the operation of the railway. Any 
 buying or selling of cars, engines, and the like, by the company, 
 for the mere purpose of speculation, would be unauthorized and 
 illegal. Hence the intention of the company to ])lace them 
 upon the railway for a permanency, the use to which they are 
 destined, tl.e connection between the railway and the cars, and 
 the essential relation between them for the purposes of the 
 undertaking, all combine to point out the true position of roll- 
 ing stock as i)art of the realty. (3) 
 
 Mr. Jones, in his work on railway securities, says that while 
 there are many and strong arguments for holding that rolling 
 stock is part of the realty — and this view seems to have the sup 
 port of the United States courts — the weight of authority in the 
 State courts seems to be against that position. He, however, 
 favors the view that rolling stock is part of the realty. (4) 
 
 i 
 
 (1) 18 S. C R. at p. 34. 
 
 (2) C. C. 379. Grand Trunk Railw"';- •), Eastern 'I'ou nsliips IJank, 10 
 L. C. J. 1: ; \Vallt)ri(l{,'e v. Farwell, 18 S. C. R. I. 
 
 (3) And sc-e Minnesota Co. r. St. I'aid Co., 2 Wall. 6)9, note j). 648, 
 on rolling sttck as a fixture, beiuK an extract from tirief of" Mr. Carpenter. 
 
 (4) Jonts, Kailw.ay Securities, § 154. 
 
Financing of Railway Companies. 
 
 109 
 
 id the 
 at any 
 in den- 
 claims 
 amages 
 vas the 
 ight be 
 I to the 
 ice with 
 
 ig stock 
 
 I doubt, 
 tinalion. 
 
 But in 
 I right to 
 be cxer- 
 y. Any 
 ;onipany, 
 ized ;ind 
 ice them 
 they are 
 cars, and 
 ;s of the 
 n of roll- 
 that while 
 
 at rolling 
 'c the sup 
 rity in the 
 
 however, 
 
 (4) 
 
 s 15;iuk, 10 
 
 lote 1). 648, 
 ■. Caii)t;nter, 
 
 On the Other hand, Mr. Ewcll, in his .vorkon fixtures, takes the 
 opposite view, (i) 
 
 Many authorities, without holding that engines and cars are 
 fixtures, regard them us so indisptasable to the operation of a 
 railway, lliat they make a distinction between the rolling stock 
 and the other kinds d" personal property, in respect to tlie rule 
 that property not it: esse cannot be conveyed. The rolling stock 
 of a railroad is regarded as so appurtenant to tlie road, tliat when 
 tlie comi)any makes a mortgage of its road and franchise, it has 
 a present existing interest in the rolling stock to be acquired for 
 its use sufficient to uphold a grant of it as incident to the road. 
 
 The question might be considered from another jioint of view, 
 viz., not as to whether rolling stock is theoretically ])art of the 
 really, hat whether, for the purposes of the particular transaction, 
 it siiould be so regarded or not. Thus, while it might be consi- 
 dered to be a jjart of the realty, as between tlie mortgagees and 
 creditors claiming liens upon it as personal property, it is not 
 necessary that it should be considered realty for the purpose of 
 taxation, or that it should be consdered realty in any other re- 
 lation than that existing between the 1 -lilway company and tliose 
 claiming under it on the one hand, and the mortgagees on the 
 other. 
 
 ',VZ. A railway company, in order to secure a loan, mortgaged K iil> and 
 to a municipal corporation their lands, roads, depots, wharves," '''^' ""''''''■ 
 stations, toils, revenues and all other property " now or during 
 the existence of the said mortgage to be acquired." A quantity 
 of iron rails was purchased for tlie railway, tlie vendors stiini- 
 lating at the time of the sale that the rails should be laid down 
 on that ]iarticular road. 
 
 The iron was shipped by the vendees, who endorsed the bills of 
 lading, to the municipality, who paid the shipping charges, insur- 
 ance, and freight duties, etc., out of monies which formed part 
 of the advances secured by the mortgage. The iron was seized, 
 
 (1) Kwell, Fixtures-, [1,39. 
 
 (2) Jones, § 150. 
 
 Under the Code Napoleon, .ill objects placed by a proprietor on his pro- 
 perty for the service and workinj,' of the property are immoveable liy destina- 
 tion. C. N. 524, ep, C. C 379. 
 
 tt 
 
no 
 
 The Railway Law of Canada. 
 
 ,ii 
 
 under an execution against the railway, while in possession of 
 the municipality, it being ready to be placed on the road. It 
 was held that as the mortgage covered personal as well as real 
 property, tlie words "other property " were not restrained to 
 real property, and that under the endorsement of the bill of 
 lading to the municipality, who obtained possession of the iron 
 by such endorsement, together with the stipulation of the ven- 
 dors and the assent thereto of the vendees, the municipality 
 acquired the possession aiid the property in the iron, and it 
 became a part of the propel ty mortgaged, (i) 
 
 On the other hand, supplies intended for the maintenance 
 
 and operation of the railway, but not incorporated with it, such 
 
 as sleepers or ties, fastenings, fuel, etc., have been held in the 
 
 Province of Quebec not to be immoveable by destination. (2) 
 
 Formalities in ;j3 Wliatever may be the irregularities in the issue of bonds, 
 
 issuing bonds <-'ic., the corporation and its members are estopped from pleading 
 
 — Avaiver. the Want of any formality prescribed by the Act by previous 
 
 waiver of such formality. (3) 
 
 Thus wiiere bonds issued in disregard of a prescribed 
 formality were treated by the company as good, a stockholder 
 wlio had attended n,c ings where the bonds were treated as good, 
 upon subsequently filing a bil 1 to restrain the company from re- 
 deeming the bonds, was held to be estopped from contesting 
 their legality. (4) 
 liiectoiy re- 34. The general rule, that when statutory requirements are 
 n!'.forinaliries. """-'■ ^''y directory and not imperative, the omission to comply with 
 them would not render void the particular act done under the 
 authority of the Statute, would ai)ply to any merely directory 
 formalities required by the Act. So it would seem t:,at where 
 a Statute required ail evidences of de bt issued by a company to 
 be signed by the president and treasurer, this would be looked 
 upon as directory merely, and the signature of the secretary 
 instead of the treasurer would be sufiicient. (5) 
 
 (i) C'oi]). of Lanark iS: Renfrew v. Cameron, 9 U. C. C. P. 109. 
 
 (2) Wyatt V. Levis &. ls.ennel)ec Ky. Co., 6 Q. L. R. 213 (S. C. K. 1880). 
 
 (3) .See Jones r. Municipality of the County of Albert, 20 N. H. 78; 21 
 N. I'l. 201 ). 
 
 (4) Zabriskee r. Cleveland, Columbus & Ohio Ry., 23 How. 381-398. 
 
 (5) City Bank v. Chent-y, 15 U. C. Q. B. 400; and see /n re Karlin^jer & 
 the Village of Morrisburg, 16 O. R. 722 ; Lewis r. Brady, 17 O. R. 377; 
 •Giand Trunk Ry, Co. i-. Corporation of Levis, 10 R. L. 612 ((J. B. Que. 1879). 
 
 m 
 
Financing of Railway Companies. 
 
 Ill 
 
 Where a mining company W'as empowered to borrow money 
 and mortgage its property upon a vote of the stockholders and 
 directors, it was held that the company was liable upon a loan 
 obtained by the directors without such vote, for the lender was 
 justified m assuming that there had been a meeting and vote of 
 the shareholders in the manner directed; (i) and likewise with 
 the omissions of the preliminaries of corporate meetings, such as 
 the publication of notices, or with regulations as to the manner 
 of conducting su( h meetings, or the appointment and election 
 of directors. (2) But this is not the case where the irregularity 
 is one which appears on the face of the instrument itself ; — the 
 purchaser is bound to take notice of it. (3) 
 
 A distinction is also to be observed between transactions 
 which are within the general scope of a corporation's powers 
 without the aid of statutory authority, and those which depend 
 Jto;.ether upon such authority for their validity. Requirements 
 in the case of the former might be regarded as directory merely, 
 which in the case of the latter might be regarded as conditions 
 precedent to the exercise of the authority, or imperative require- 
 ments. 
 
 A defect in the mortgage does not invalidate the mortgage 
 debt, but only the security for it ; and a want of power to make 
 the mortgage does not affect the obligations of the bonds secured. 
 (4) 
 
 ',i5. The fact that a certain municipal debenture had been g,, 
 stolen previously to its being issued has been held to be no bar to 
 the claim of a /wfia fide holder for valuable consideration with- 
 out notice. (5) 
 
 (1) Tyson's Reef Co. in re 3 W. W. & A. H. Cases at law 162 ; Brit. 
 Bank r. 'I'liiquand, 6 V\. ik. LI. 327. 
 
 (2) Township of liiock r Toronio &. Nipissing Ky., 17 (irant Cliy. 425; 
 Foiintaine r. Carmarthen Ry. Co., L. R., 5 l-q. 316; Worcester Corn Kx- 
 change /« /v, 3 D. G. M. & G. I So ; Anderson v. Duke, etc., Gold Mine 
 Co., I Australian Jurist 161. 
 
 (3) Athenieum Life Assur. Soc. in re, 4 K. & J. 549; Geddes v. The 
 Toronto Street Ry. Co., 14 U. C. C P. 513; The Commercinl Hank of 
 Canada i: 1 he Great North Western Ry. Co., 3 Moore P. C. N. .S.313-314 
 
 (4) Hhildel])hia & Sunbury R. R. Co. v. Lewis, 33 Pa. St. 33, 
 
 (5) Th- Trust & Loan Co. of Upper Canada «. The City of Hamilton, 
 7 U. C. C. P. 98; and see Jones v. Municipality of Albert, 21 N. B. 200. 
 
 iionds. 
 
I 12 
 
 The Railway Law of Canada. 
 
 Pleading 
 want of 
 foitiiality. 
 
 I'a\(i' not 
 nifiitiiiiied. 
 
 nc^otiahle 
 iiistiun.onts 
 
 ,li 
 
 
 30. A plea that such debenture was not issued " under the 
 formalities required by law," because the by-law under which 
 it was issued did not settle a special rate, and was therefore 
 void, WIS held bad, for not averring distinctly that such deben- 
 ture was issued in pursuance of a by-law, and for not pointing 
 out wherein it was defective, (i) 
 
 37. Debentures are not void because they are not made pav ible 
 to any particular named individual or company ; as the legal effect 
 of such an instrument must be construed to be an undertaking 
 to pay the monies therein mentioned to the person to wlium it 
 was delivered, and who, by the effect of such delivery, became 
 the payee in fact. (2) 
 
 38. A debenture as commonly understood, and according to 
 the general usage of this country, is a negotiable instrument in 
 the nature of a promissory note transferable by endorsement or 
 by mere delivery, (3) and therefore cannot bear a condition on 
 the face of it, making its validity depend upon obligations tu be 
 performed in the future, and the party having a right to the deli- 
 very of debentures to him is entitled to have them free from such 
 conditions. (4) The fact that debentures are under seal does 
 not detract from their negotiable character ; and though a statute 
 makes them a charge on all the property of the com[)any, with 
 aright of foreclosure and sale, this is something superinduced 
 upon the security by virtue of the statute. (5) 
 
 The issuing of debentures in blank to be subsequently tilled 
 in upon delivery by the managing director, who is also secre- 
 tary and treasurer, does not invalidate the debentures, Tiie 
 strict rules of the common law relating to deeds are not applica- 
 ble to such debentures, but rather the rules of the law merchant 
 relating to negotiable securities. (6) But even if this were not 
 so, the fact that '.he name of the payee is not filled in until deli- 
 
 (i) The Trust & Loan Co. of Upper Canada c. The City of Ilainiltoii, 
 7 U. C. C. r. 98 
 
 (2) Geddes ).!. The Toronto Street Ry. Co., 14 U. C. C. P. 513. 
 
 (3) Eastern 'townships liank v. Munieipality of Compton, 7R. L. 446. 
 
 (4) MacKarlane t. Corp. St.C^saire, M. L. R., 2 Q. 13. 160, confirmed in 
 .Supreme Court, 14 S. C. R. 738. 
 
 (5) Bank ol Toronto f. Coburg, etc., Ry. Co., 7 O. R. I. 
 (b) Ibid. 
 
Financing of Railway Companies. 
 
 113 
 
 ider tlie 
 ;r which 
 lerefote 
 1 deben- 
 pointing 
 
 : payable 
 gal clVect 
 .ertakiiig 
 wlium it 
 , became 
 
 ording to 
 ument in 
 iemeiit or 
 dition on 
 ons to be 
 ) the dtli- 
 from such 
 seal does 
 I a statute 
 )any, with 
 erinduced 
 
 :iitly tilled 
 ilso secre- 
 les. The 
 ot applica- 
 ,' merchant 
 s were not 
 until deli- 
 
 )f llamiltou, 
 
 I. L. 446. 
 confirmed in 
 
 very does not make the debentures void. It would come within 
 that class of cases where deeds have been held good, notv.'th- 
 standing an alteration or subsequent addition, because, at the 
 time of execution, there was something which could not be as- 
 certained, and was therefore to be filled in afterwards. In this 
 case, however, there was no execution, which imports delivery 
 prior to the time when the name was filled in. (i) 
 
 39. Coupons are simply in effect promissory notes payable Coupons and 
 on tiie very day of their maturity without grace. (2) However '"^^''^^' 
 their foims may vary, the interest and legal effect are the same. 
 
 (3) Interest runs on them from the dates on which they re- 
 spectively fall due, without the necessity of putting the debtor in 
 default ; (4) and this is the law in Quebec. (5) 
 
 40. It is not necessary that the coupons should be presented Place of pre- 
 fer payment at the place named, in order to establish a default pay'ment! *"^ 
 on the part of the company, if it can b- shown that the comp...iy 
 
 was never ready to pay them, there or elsewhere. (6) 
 
 As soon as the day on which a coupon becomes due passes 
 without payment, it is regarded as dishonored like other com- 
 mercial paper remaining unpaid at maturity; and if thereafter 
 transferred, the transferee takes it subject to all equities with 
 which it was affected in the hands of the transferor. (7) The 
 simple fact that an instalment of interest is overdue and unpaid 
 is not sufficient to affect the position of one taking the bonds and 
 subsequent coupons, before their maturity for value, as a bona 
 /^/^ purchaser. (8) But the presence of overdue and unpaid 
 coupons on bonds may be a circumstance which, when coupled 
 with other significant indications of invalidity, will prove suffi- 
 cient to put a purchaser on inquiry. (9) 
 
 (i) Biink of T'^ronto f, Coburg, etc., Ry. Co., 7 O. R. I . 
 
 (2) Daniel, Negot. Inst. 1490. 
 
 (3) Ibi'l . J493- 
 
 (4) Daniels Kegot. Inst.,§ 1505. 
 
 (5) Desrosiers v. Montreal, Portl.ind & Boston Ry. Co., 28 L. C J. i. 
 
 (6) /V Thompson and the Victoria Ry. Co., 9 P. R. (Ont.) 119. 
 
 (7) Daniels, § 1505. 
 
 (8) Ry. Co. V. Sprague, 103 U. S. 762. 
 
 (9) Parsons v. Jackson, 99 U. S. 434- Explained in Ry. Co. v. Spraeue. 
 103 U.S. 762. f B I 
 
 8 
 
 '^1 
 
 m 
 
 \ til 
 
 m 
 \% 
 
 I'll 
 
714 
 
 'I'he Railway Law of Canada. 
 
 Suit U])on 
 coupons. 
 
 Ji 
 
 41. On motion of the owner of bonds with coupon? attached, 
 the Court will order such of the coupons as are not in litigation 
 to be detached by the clerk of the Court and delivered over to 
 the party moving, (i) 
 
 Transfer and 43, A trustee held certain debentures of a railway company, 
 bonds'!^ '°" ° °" trust, to secure certain creditors of the company for advances 
 made by them, which debentures were to ba handed over to the 
 creditors for sale, upon default in payment of the advances. 
 The company made default, and the debentures were delivered 
 over to the creditors. Held, that the creditors were entitled un- 
 der a statute, (2) the relevant section of which was substantially 
 the same as sec. 96 of The Railway Act, to be registered as hold- 
 ers of the debentures, to enable them to qualify and vote for 
 directors. (3) 
 
 Where an Act provided that the secretary should register the 
 bonds, it was held that a demand upon the assistant secretary 
 was sufficient, where it could be shown that he performed all the 
 duties of the secretary's office. (4) 
 
 Under the provisions of sections 96 and 97 requiring registra- 
 tion of bonds as a condition precedent to the holder's right to 
 vote thereon, questions may arise as to what title should suffice 
 to entitle the holder of such bonds to registration. Thus, in one 
 case, under a similar act, the secretary refused to register unless 
 the intermediate transfers were produced and registered at the 
 same time. But it was held that he was bound to do so with- 
 out the production or registration of the previous transfers. (5) 
 In another case a bank in Ontario received from bankers in 
 London a number of bonds, represented by the London bankers 
 as belonging to different persons named, and tendered them for 
 registration at the railway office, in order that these persons 
 might vote thereon. The secretary of the railway company re- 
 gistered such of the bonds as stood in the names of the original 
 holders, but refused to register the others unless written transfers 
 
 (1) Montreal, Portland & Boston Ry. Co. v. La Banque d'Hochela{;a, 
 27 L. C. J. 164 (Q. B. Que., 1883). 
 
 (2) 34 Vic, cap. 43 (Ont.), sec. 33. 
 
 (3) In re Thompson & the Victoria Ry. Co , 8 Ont. Pract. 423. 
 
 (4) In re Thompson & the Victoria Ry, Co., 9 Ont. Pract. 1 19. 
 
 (5) In re Osier v. The Toronto, Grey & Bruce Ry. Co., 8 Ont. Pract. 506. 
 
 
1 
 
 Financing ok Railv/ay Companies. 
 
 "5 
 
 from the original holders were produced. It was held: that the 
 comijaiiy should register the bonds without such transfers; the 
 proof of title in the alleged owners was sufficient; the issue of 
 scrip in London as representing the bonds formed no objec- 
 tion, (i) 
 
 These cases arose under a statute which provided that the 
 bonds " and any transfers thereof " should be registered before 
 voting. These words are not in the present Act, under which the 
 company are bound, on demand, to register such bonds, etc , and 
 thereafter any transfers thereof. (2) 
 
 If the transferees desire to acquire the right of voting on the 
 bonds, all the transfers should be evidenced in such a way as to 
 enable the company to register them in the same way as trans- 
 fers of shares. (3) The rights of the holder are always subject to 
 the provisions of the morigage deed, (4) one of the most usual 
 being that no transfer, except upon the transfer book, shall be 
 valid unless the last preceding shall have been to bearer, which 
 shall restore transferability to the bond by deli\ery, but every 
 such bond shall continue subject to successive registrations and 
 transfers to bearer at the option of eacii holder. 
 
 43. In the case of an application for a mandamus, to compel Default, 
 a railway company to register bonds, it was objected that it did 
 not appear the company had made default in payment of the in- 
 terest, the coupons not being shown to have been presented at 
 the place named for payment ; but it was held that the fact of 
 the company never having been ready to pay them, there or else- 
 where, was a sufhcieni answer to this objection. (5) 
 
 It is therefore not necessary as a condition precedent to 
 recovery, to aver and prove presentment at a particular place, 
 and a tender of the surrender of the bonds or a readiness to 
 surrender them. (6) 
 
 
 (i) In re Johnson & The Toronto, Grey &. Bruce Ry. Co., 8 Ont. Pract. 
 535 • 
 
 (2) Sec, 96, and siipia p. 42 */ scc^. 
 
 (3) In re Thompson & the Victoria Ry. Co., 9 P. R. (Ont.) 1 19. 
 
 (4) Sec. 96, ss. 3. 
 
 (5) Re Thompson & the Victoria Ry. Co., 9 P. R. (Ont.) 1 19. 
 
 (6) Fellowes 7: Ottawa Gas Co., 19'C. P. 174. 
 
 /» 
 
 
ii6 
 
 The Railway Law of Canada. 
 
 " At tlie next 
 general meet- 
 
 " Raising 
 monev." 
 
 " Best terms 
 and condi- 
 tions." 
 
 Distinction 
 between 
 pledge and 
 deposit as 
 collateral 
 security. 
 
 44. Tlie words " at the next general meeting " used in a statute 
 merely indicate the earliest period at which the bondholders may 
 vote, and the statute does not require a new registration, in order 
 to entitle the bondholder to vote at any subsequent meeting so 
 long as the interest remains unpaid, (i) 
 
 Where the exercise of any power given under the general or 
 special Act requires the assent thereto of a certain majority of 
 the shareholders, present at a meeting specially called for that 
 purpose, the word " shareholders " must be interpreted to include 
 all who are entitled to vote as shareholders, which includes bond- 
 holders. (2) 
 
 45. Tlie expression " raising money "used in section 93 sub- 
 sec. 2 must be given a liberal construction, so the pledging of 
 bonds with a contractor, as security for the price of the construc- 
 tion of the railroad, and in default of payment by the company, 
 the contractor to take the bonds in payment at so much on the 
 dollar, is to be construed as " raising money for the prosecution 
 of the undertaking." (3) 
 
 46. And the alternative given to the contractor of taking tiie 
 bonds in default of payment of the contract at fifty cents in the 
 dollar was considered, in the absence of evidence that more 
 favorable terms could have been made, as being a pledging and 
 allotting of the bonds upon the best terms and conditions obtain- 
 able within the meaning of the section. (4) 
 
 47. A distinction has been drawn in a Manitoba case between 
 a pledging of bonds and a mere deposit of them as collateral 
 security. Defendants purchased certain rails from the plaintiffs, 
 giving in payment certain acceptances. It was agreed that " as 
 collateral security for the payment of said acceptances at matur- 
 ity, the defendants shall issue, and on production of the respective 
 bills of lading shall deposit with the plaintiffs or their bankers 
 
 (i) Hendrie v. Grand Trunk Ry., 2 O. R. 441. (Section 96 provides 
 for voting at all subsequent meetings.) 
 
 (2) Hendrie v. Grand Trunk Ry., 2 O. R. 441. 
 
 (3 Winnipeg & Hudson Bay Ry. Co. v. Mann, 7 Man. 81. 
 
 (4) Winnipeg & Hudson Bay Ry. Co. 7'. Mann, 7 Man. 81 ; and see 
 Regent's Canal Iron Works Co., L. R., 3 Ch. D. 43. 
 
 ijl 
 
Financing ok Railway Companies. 
 
 ir; 
 
 bonds of the defendants to an amount double that of the said 
 acceptances." Power of sale in case of default was given. 
 After default and recovery of judgment upon the acceptances, 
 plaintiffs filed their bill on behalf of ail holders of similar bonds 
 for a receiver and for sale of the railway. It was held : that 
 having regard to the surrounding circumstances, the plaintiffs 
 were not pledgees; and that no obligation arose upon the bonds 
 until after their sale by the plaintiffs under their power, (i) 
 It may be well to quote the language used by the Court in de- 
 livering judgment : " It is not a question of the property in the 
 pieces of paper on which the instruments are written, which would 
 be originally in the railway company, and of which it might make 
 a legal pledge. In the hands of the railway company there was 
 no other property in respect of them. It could only be when 
 issued to another party, as obligor or promisor in respect thereof, 
 that the instruments could take effect as the obligations of the 
 railway company, or that there could be said to be any property 
 in the obligations to be pledged by a pledge of the papers con- 
 taining them." 
 
 " There is then no possibility of treating the transaction as one 
 of pledge of the obligations, for, unless the plaintiff company 
 became the obligees or promisees so as to possess the legal title to 
 the chases in action which the instrument purported to represent, 
 there was no obligation or choses in action to be pledged. 
 
 " It is quite competent, however, for the/^railway company, by 
 its officers, to sign and sc?.l such instruments, and deposit them as 
 security with a party making advances to it, upon the terms tluit 
 such party should not be holder of them, that they should create 
 no obligation to him, but that his only right should be to sell them, 
 as the railway company might, and repay himself from the pro- 
 ceeds j he making them, thus, the obligations of the company to 
 the purchasers." 
 
 "This, it appears to me, was the very transaction to which the 
 parties sought to bind themselves by the agreement set out in the 
 bill." 
 
 " At first sight the word ' issue ' seems to imply the complete 
 execution and delivery of the instruments to the plaintiff com- 
 
 (i> West Cumberland Iron Co. v. Winnipeg & H. B. Ry. Co., 6 Man. 388. 
 
 C I 
 
 
ii8 
 
 The Railway Law or Canafm. 
 
 li 
 
 III 
 
 Extent of 
 borrowing 
 power — con- 
 dition prece- 
 dent. 
 
 I If 
 
 pany, so as to make them the holders of the obhgations thereby 
 represented ; but I think that the word may be considered to be 
 used in a somewhat less proper sense to signify the preparation, 
 signing and sealing of the docinrients, and the placing of them 
 absolutely out of the possession and control of the railway 
 company. 'I'hc word is simihiily use i by Britt, C. J., in Baxeii- 
 (iaiey. Bennct (i) in speaking of a blank acceptance handed 
 to a party to be filled up and negotiated. In fact, the ' issue' 
 there was less complete as it was without consideration, and 
 could be recalled at any time before use of the bill." 
 
 " The word used in the agreement to specify the transmission 
 to the plaintiff comiiany is 'deposit.' The instruments were to 
 be ' deposited' with that company or its bankers. This is not 
 an apt word to denote a completion of the execution by delivery. 
 It appears rather to indicate the physical transfer of the pieces of 
 paper unaccompanied by the mental intention involved in the 
 word ' delivery ' when technically used. I agree with the view of 
 my brother Bain, that the word would be properly applied to a 
 transaction of pledge, rather than to one of mortgage, which is 
 what the plaintiff's bill really assumes this to have been. In 
 fact, it represents a bailment rather than a transfer of property or 
 creation of an obligation, though often of another kind than the 
 naked bailment known as depositum." (2) 
 
 48. A very important point as to the extent of a company's 
 borrowing power, and the effect to be given to statutory condi- 
 tions limiting such power, arose in the case of the C')r[>oratioii 
 of Quebec \. Quebec Cent rixl Railway Co. (5) A railway coni' 
 pany was authorized by a special Act to issue bonds or deben- 
 tures to the extent of ;£,'3co,ooo, in ihree successive issue?, each 
 of the second and third issues to depend upon the performance 
 by the company of certain conditions precedent. 'I'iie fir.-t 
 ;^ioo,ooo were issued at once as authorized. 
 
 The second ;;^ioo,ooo tveie issued when only 4314 miles of 
 the railway had been completed, it being one of the conditions 
 precedent that 45 miles should be completed and in running order, 
 as certified by the Government inspecting engineer. 
 
 (1) L. R.,3Q B. D. 525. 
 
 (2) 1 > Wtsi C»m\)erlaiHl v. Winnipeg & II. li. R. I\. Co., 6 Man. 394, 
 per Killam J. 
 
 (3) 10 S. C. R. 5<'>3- 
 
 i!r. 
 
KiNANCiNo OF Railway Companies. 
 
 «9 
 
 f- 
 
 thereby 
 
 ;d to be 
 
 laration, 
 
 :)f tliem 
 
 railway 
 
 Baxeii- 
 
 handed 
 
 * issue ' 
 
 ion, and 
 
 smission 
 were to 
 lis is not 
 delivery, 
 pieces of 
 ;d in the 
 e view of 
 )lied to a 
 which is 
 )een. In 
 operty or 
 1 than tlie 
 
 lompany's 
 ary condi- 
 n-[)oration 
 way com- 
 or deben- 
 sucT, each 
 rformance 
 The fir.-t 
 
 ^ miles of 
 conditions 
 ning order, 
 
 6 Man. 394, 
 
 Before the issue of tiie third ^100,000, an Act was passed 
 modifying the previous conditions as to that issue, and tlie pre- 
 amble declared that a total length of 45 miles had been com- 
 pleted, and a first and second issue eacli of ^100,000 of the com- 
 pany's debentures made. 
 
 This recital was erroneous. The question that arose was 
 whether the recital in the preamble of the last act rendered the 
 second issue of bonds mentioned therein good and valid and 
 binding on the company, although the conditions precedent re- 
 quired by the first Act had not been fulfilled. The majority of 
 the Court held that it did, Ritchie, C. J., and Strong, J., dissent- 
 ing, (i) 
 
 49. Where a company had exceeded the borrowing poweis Kxcessive 
 given by their original Act of incorporation, yet sufficient bor- '"""^^'"^ j 
 
 rowing powers had been given by subsequent Acts, and their by subRernient 
 exercise sanctioned by the shareholders, the borrowing was not'^'^'' 
 ultra vires the authority of the managers and directors. (2) 
 
 SO- Where power is given to a company by its special Act Company not 
 to borrow money, and to issue bonds or debentures for neces- fe^tncted to 
 
 ■' ' bonds alone 
 
 sary repayment of any sums so borrowed on certain terms, the as seciuiiy for 
 
 securities upon which the company has power to borrow are not"^""'*;'^ ''°'"' 
 
 111 1 1 , T^ • , roweil. 
 
 restricted to bonds or debentures only. Borrowing money by 
 
 advances from a bank, which advances were to be covered by 
 
 montlily bills on the company borrowing, and their available 
 
 traffic receipts would be within such a provision. (3) 
 
 Where an Act makes it lawful to promote the traffic of other 
 
 railways, the company can apply funds borrowed under their 
 
 powers for the maintaining of such railways. (4) 
 
 Trustees. 
 
 51. Notwithstanding the provision of sub. sec. 2 of section 95, Kailure to act. 
 that no action shall be taken to enforce pay ment of the bonds, 
 
 (i) It should be noted that Fournier and Henry, J. J., held in this case 
 that the illegality of the second issue had not been legally proved, as the cer- 
 tificate of the engineer that only 43^4 miles liad been completed was not 
 produced. 
 
 (2) The Commercial Bank of Canada v. The Great Western Ry. Co., 3 
 Moore N. S. 295. 
 
 (3) Il^H- (4) Ibid. 
 
 / <' 
 
 I; 
 
fM 
 
 The Railway Law ok Canada. 
 
 debentures, etc., or of tlie interest tliereon, except through the 
 trustee or trustees appointed under the mortgage deed, it would 
 seem ihal if the trustees should fail or refuse to act, any of the 
 bondhold'.'rs, for themscKes and in behalf of the rest, might step 
 forward and put in motion the machinery of the law, making 
 the trustees parties defendant, (i) otherw ise the bondholders 
 would be without remedy, except perhaps by mandamus to 
 compel the trustees to act. However, this right is generally given 
 by the deed, and if so could be validly exercised under section 
 96 (ss.3). 
 
 Rigliis of 53, The trustees, acting for the bondholders, have suHicient 
 
 to°nrot°ct'^'^^ authority and interest to enable ihem to maintain a bill in equity 
 ilieir iiueiests. to enjoin an alleged illegal proceeding which will seriously depre- 
 ciate the value of the bonds secured. (2) hi Quebec it has been 
 held tiiat the holder of railway bonds, constituting a privileged 
 claim on the moveable property of the "ompany, may, for the 
 protection of his rights, proceed against such proi)erly by an 
 attachment in revendication in the nature of a. sais/'e cottsrva- 
 toire. (3) And the bondholders themselves can maintain an 
 action to restrain a fraudulent diversion of a portion of property 
 mortgaged for their security, when one of the trustees is in col- 
 lusion with the company. (4) 
 
 Notice. 
 
 ,11 
 
 Trustees as 
 
 common 
 
 carrierf. 
 
 5J5. Notice to trustees under an ordinary mortgage deed is 
 iiotice to the holders of the bonds secured by the mortgage. 
 'J'hereforc, actual notice to the trust"°s of a prior equitable mort- 
 gage is notice of it to the bondholders, who therefore take their 
 bonds subject to the legal consequences of the incumbrance. (5) 
 And the fact that the bonds are treated as negotiable, and pass 
 from hand to hand like bank bills, does not affect the question 
 of the agency of the trustees in reference to the security pro- 
 vided by the mortgage. (6) 
 
 •51. Trustees in possession of the railway under the provi- 
 
 (1) Jones K. K. Securities, § 362. 
 
 (2) Murdock y. Woodson, 2 Dill. 188. 
 
 (3) Wyiilt f. Senfcal, 4 Q. L. R. 76. 
 
 (4) Weetjen c. St. Paul & Facitic R. R. Co., 4 Hun. 529. 
 
 (5) Miller y. Rutland & Washington R. R. Co., 36 Vt. 452. 
 
 (6) Per Barrett, J., in same case, p. 484. 
 
Financing of Railway Companifs. 
 
 I 21 
 
 sions of the deed Imve been held liable as common carriers to the 
 same extent that the corporation would be liable, (i) 
 
 as. A party having agreed to advance money to a railway Who are 
 company for the completion of its road, an agreement was exe- '•■"»*"«• 
 cutcd, by which, after a recital that he so agreed, and tliat a bank 
 h.id undertaken to discount his notes endorsed by the firm of 
 which he was a member to procure the money to be advanced, the 
 railway company appointed said bank its attorney irrevocable 
 (in case the company should fail to pay the advances as agreed) 
 to receive the bonds of the company (on which the lender held 
 security) from a trust comi)any with which they were deposited, 
 and sell them to the best advantage, applying the proceeds as set 
 out in tiie agreement. 
 
 riie railway company iiaving failed to repay, as agreed, to 
 thi.' party making the loan, the bank obtained the bonds from the 
 trust comi)any, and threatened lo sell the same. 
 
 The company by its manager wrote to the lender's firm a 
 iottei', rcrpiesting that the sale be not carried out, but that the bank 
 should substitute them as the attorneys irrevocable of the com- 
 pany for such sale, promising that if that were done, the firm 
 should have the sole and absolute right to sell the bonds, the 
 proceeds to be api)lied in a specified manner. The firm agreed 
 to this, and extended the time for payment of their claim, and 
 made further advances ; and, as authorized by the last mentioned 
 agreement, they re-hypothecated the bonds to the bank on cer- 
 tain terms. The company having again made default, the bank 
 gave notice that the bonds would be sold. 
 
 in an a' 'on by the railway company to restrain such sale, it 
 was held tiuit the bank and the firm were respectively first and 
 second encumbrancers of the bonds, being to all intents and 
 purposes mortgagees, and not trustees, of the company in respect 
 thereof, and that there was no rule of equity forbidding the bank 
 to sell or e firm to purchase under that sale. (2) 
 
 It was further held that if the firm should purchase at such sale, 
 they would become absolute holders of the bonds, which would 
 
 (, , 
 
 t.;. 
 
 i 
 
 (1) Daniels v. Han, 118 Mass. 543. 
 
 (2) Nova Scotia Central Ry Co. i-. Halif.i.x Ranking Co., 21 S. C. R. 537. 
 
 III 
 
laa 
 
 Thk R.AILWAY Law ok Canada. 
 
 Di^tiiu'iidU 
 between mort- 
 gage and 
 liyjiothec 
 under tlie 
 civil and com- 
 mon law. 
 
 I Ji 
 
 not be liable to be redeemed by the company, (i) It was not 
 decided in this case what would be the effect of a trust deed by 
 which the railway was vested in trustees for the security of bond- 
 holders. But according to the authority of Wa/ihidge v. Far- 
 well^ (2) this fact would make no difference in the rights of the 
 parties. When followed by possession in the terms of the trust 
 deed the property in the railway vests in the trustees, and the 
 interest of the railway company is reduced to a bare right of 
 redemption. (3) 
 
 56. It may not be out of place at this point to set forlh the 
 distinguishing features of mortgage under the civil and common 
 law systems. 
 
 The hypothec of the civil law had its origin in Greece, from 
 whence it was adopted by the Romans. It consisted in an 
 agreement whereby the debtor pledged his property v/ithout 
 abandoning the possession, on the condition, however, that in 
 case the debt was not paid at maturity he should lose his title 
 to the property. (4) 
 
 Under the Quebec civil code (5) hypothec is a real right 
 upon immoveables made liable for the fulfillment of an obliga- 
 tion, in virtue of which the creditor may cause them to be sold 
 in the hands of whomsoever they may be, and have a preference 
 upon the proceeds of the sale in order of date as fixed by th it 
 Code. (6) 
 
 The use in that Province of trust deeds in the English form, 
 and tiie recital iu special Acts of the phraseology of the English 
 law, has given rise to anomalies such as adjudicated upon in the 
 cnse of Wallbridge v. Farivcll. (7) 
 
 In that case the statute authorized the conveyance of the 
 road to trustees for the purpose of the trust. The deed of 
 trust used tlie word " sold." The judge of the Superior Court 
 construed these terms as constituting a pledge of the railw.iy 
 
 
 (i) Nova Scotia Central Ry. Co. y. Halifax Banking Co., 21 S. C R. 537. 
 
 (2) 18 .S. C. I\. 12, Taschereau, J. 
 
 (3) Redfield v- Corpn. Wickham, 13 App. Cas. 473. 
 
 (4) Troplong, Ilypotiiique, vol. I, No. 7. 
 
 (5) C. C. 2016, and see arts 2040-44. 
 
 (6) 2009, 2047. 2130 C. C. 
 
 (7) 18 S. C. K. I. 
 
 ,aii 
 
Financing ok Railway Companies. 
 
 123. 
 
 to the trustees with this modification, that the trustees could 
 permit the company to work the property so long as the 
 interest on the bonds was paid. Counsel for the appellant 
 before the Supreme Court argued that there was either a pledge, 
 or an actual and complete sale of the railway. But Taschereau, 
 J., who rendered the principal judgment of the Supreme Court, 
 could not see in the deed a contract of pledge. Possession by 
 the pledgee is such an essential feature of that contract (i) that 
 there could not, in his opinion, exist any such thing as a contract 
 of pledge: (2) " It seems tome impossible to see in that deed, 
 as interpreted in the light of the Statute of i88d, anything else 
 than a h^'pothecation of this railway in favor of the bondholders, 
 not precisely the hypothecation of Article 2016 C. C, but with 
 the exceptional right, given by the statute, of the mortgagee to 
 enter into possession, in default of payment, after the exercise 
 of which right the contract between the parties became one of 
 nantisscment (pledge), with, of course, droit de retention (lii.n), 
 till paid, joined tr the hypothec. (3) 
 
 Unde:- the syjtem of common law as distinguished from civil 
 law, a mortgafj'e is in law an absolute conveyance subject to an 
 agreement lur a reconveyance on a certain given event. l>iit 
 the Coi.rt of Chancery allows the debtor, on payment witliin a 
 reasonable lime after the debt becomes due, to redeem his estate, 
 and this is called his equity of redemption. Equity will not 
 suffer any agreement in a mortgage to prevail which will change 
 the latter into an absolute conveyance upon any condition or 
 event whatever. (4) 
 
 It follows that, as at common law the estate is in the mort- 
 gagee, an execution creditor cannot seize the mortgagor's estate 
 in the property. His remedy must be in equity, which allows 
 iiim either to redeem the prior incumbrances, or entitles him to 
 equitable execution, and consequently to a decree for the 
 appointment of a receiver and sale of the property ; but the 
 receiver will be appointed without prejudice to the rights of piior 
 
 (I) C. C. [966-67. 
 
 (2) Citing 10 Q. I,. R. ■^08; 4 Q. L. K. 323 ; 6 Q. L. R. I. 
 
 (3) Tascliereaii, J., inWallbddge v. Faiwell at p. 12. 
 
 (4) Williams Real rio)i., Am. Ed. 1886, p. 421-426 
 
124 
 
 The Railway Law of Canada. 
 
 incumbrances, and he must not interfere with any prior incum- 
 brancer who might be in possession (i) It was doubtless such 
 considerations as these, based upon the common law doctrine as 
 to mortgages, which led to the decision in the Phelps case (2) 
 without sufficient attention being paid to the Railway Acts. 
 
 (1) Wells V. Kilpin, L. R., 18 Fq. 298. 
 
 (2) Supra, p. loi. 
 
 ,11 
 
CHAPTER VI. 
 
 
 RECEIVERS. 
 
 
 RECEIVERS. 
 
 7. In luhat cases appointment ivill 
 
 1. 
 
 Appointment. 
 
 be made. 
 
 2. 
 
 Quebec. 
 
 8. Duties and powers. 
 
 ,v 
 
 United Slates and England. 
 
 9. Diviii-"t of income. 
 
 4- 
 
 Louisiana, 
 
 10. Extraordinary outlay. 
 
 S- 
 
 France. 
 
 1 1. Payment of right of way. 
 
 6. 
 
 Ontario. 
 
 
 1. A receiver is a person appointed by a court of equity to Appointment, 
 take charge of property in dispute. The order appointing him 
 is in the nature of an injunction, or writ of sequestration, pre- 
 venting any disposition of or interference with the properly with- 
 out the consent of the Court, (i) There seems to have been 
 a considerable difference of opinion as to whether courts of 
 equity had any general equity jurisdiction over corporations, as 
 such, or whether their jurisdiction attached only by virtue of 
 such recognized heads of jurisdiction as trusts, injunctions and 
 the like. (2) But it is certain that, apart from statutory enact- 
 ment, courts of equity will appoint a receiver over corporate 
 property in the following cases : i. At the suit of mortgagees 
 or of bondholders who have a lien on the corporation property. 
 (3) It is considered that where an Act authorizes the mortgage 
 of a railway, it also by implication authorizes the appointment of 
 a receiver as necessary to give effect to the mortgage. (4) 2. At 
 the suit of creditors who have obtained judgment which they are 
 unable to collect by levy under common law execution. (5) 
 3. At the suit of any creditor or stockholder interested in the 
 funds of a mortgaged corporation, where there is a breach of 
 duty on the part of the directors and a loss or threatened loss of 
 
 (1) Thornton v. Washington Savings Bank, 76 Va. 433. 
 
 (2) Kerr on Receivers Annotation by Bispham, 2nd Am. ed., p. 80; High 
 on Receivers f 1886), § 288. 
 
 (3) Furness u. The Caterham Ry. Co., 25Beav. 614 ; Kerr on Receivers, 
 2 Am. ed., p. 81. 
 
 (4) Peto X). Welland Ry. Co., 9 Grant Chy. 457, Esten V. C. 
 
 (5) Evans v. Coventry, 5 D. G. M. & G. 911. 
 
 •i 
 
 
126 
 
 The Railway Law of Canada. 
 
 li 
 
 ,li 
 
 funds ; (i) or a state of things exist in which the governing body 
 are so divided they cannot act together (2) ; or where a corpora- 
 tion has practically closed its business. (3) 4. Where a cor- 
 poration is dissolved and has no officer to attend to its affairs. (4) 
 
 ■(Quebec, 2. In the Province of Quebec such officers as receivers are 
 
 not recognized ; but by article 1823 of the Civil Code, a seques- 
 trator can be appointed by order of the court over moveables or 
 immoveables concerning the properly or possession of which two 
 or more persons are in litigation. 
 
 In an early case it was decided in that Province (5) that 
 tiie court had not power to appoint a sequestrator or receiver 
 to the railway ; that the law regarding sequestration of property 
 does not extend to the judicial sequestration of the property of 
 bodies corporate. This case was carefully considered, but 
 since the advent of the Code, whicli merely crystallizes the old 
 law on the subject, numerous French commentators have dis- 
 cussed the matter, and a fairly abundant jurisprudence has in- 
 terpreted it, with the result that, aUhough at the present day, in 
 the Province of Quebec the question may be considered a very 
 delicate one, yet in the recent case of Lambc v. The Montreal & 
 Sorel Railway Co., (6) it has been held that a sequestrator can 
 be appointed to tlie property of a railway company. And this 
 conclusion would seem to be sound. For while under the 
 Quebec law a receiver could not be aiipointed to take over and 
 manage the company as a corporation, the Code clearly con- 
 templates the sequestration of property in litigation in the inter- 
 est of all concerned, and tlie administration of the property by 
 the sequestrator subject 10 his accounting to the court. (7) 
 
 ir 
 
 (1) Potts f. Warwick, etc , Canal Nav. Co., Kay 142; Wliitworth f. 
 Gaugnin, 3 H. 416 ; Ames r. Trustees of Hirkenhec.d Docks, 20 B. 332 ; 
 I'ett) V. Welland Ry. Co., 9 Grant Chy. 455. 
 
 (2) Featheison v. Cooke, L. R., 16 Eq. 298 ; Trade Auxiliary Co. y. 
 Vickers, ib. 303. 
 
 (3) Warren r Fake. 49 U. I'rac. Rep. 430. 
 
 (4) Hamilloi) v. 'J'ransit Co., 26 Harl). 46 ; Murray v. Vanderbilt, 39 
 Barb. 140 ; Lawrence v. Greenwich Hre Ins. Co., I Paige 587. 
 
 (5) Morrison c. Grand Trunk Ry. Co., 5L.C. J. 313, S. C. 1861, Monk J. 
 
 (6) Decided in 1891, tut not reported. The Court of Review decided, 
 reverjing the judgment of Taschereau, J., of the Superior Court, that a se- 
 questrator could iJe appointed to a railway. 
 
 (7) C. C. 1823-1829 ; and as to dissolved corporations see C. C. 371-3. 
 
 V 
 
Receivers. 
 
 127 
 
 3. In the United States the jurisdiction in such matters is, as in United States 
 England, an equitable one j yet the majority of decisions there*"'' ^'"s'^'"'- 
 have held that the general jurisdiction of equity over cori^orate 
 bodies does not extend to the power of dissolving the corpora- 
 tion, or of winding up its affairs and sequestrating the corpor- 
 ate property and effects, in the absence of express statutory 
 authority, (i) In England the court can appoint a receiver 
 at the suit of a mortgagee of tolls, independently of any Act of 
 Parliament, on the ground that when an Act of Parliament 
 authorizes a mortgage, it authorizes, as incident to it, all neces- 
 sary remedies to compel payment, and in the case of tolls a power 
 to appoint a receiver. (2) But the receivership does not ex- 
 tend to the management of the railway. (3) 
 
 There is that peculiarity in the undertaking of a railway which 
 would make it improper for a Court of Chancery to assume the 
 management of it at all. Where the legislature, acting for the 
 public interest, authorizes the construction and maintenance of a 
 railway, both as a highway for the public and as a road on 
 wiiich the company will themselves become carriers of pas- 
 sengers and goods, it confers powers and imposes duties and 
 responsibilities of the largest and most important kind. These 
 l)owers must be executed and these duties discharged by the 
 company. They cannot be delegated or transferred. It is 
 iini)ossible to suppose that a Court of Chancery can make itself 
 (ir its officers, without any parliamentary authority, the hand to 
 execute these powers. It is immaterial that the company do 
 not object to, or may even desire, the ai)pointment ol a man- 
 ager by the court. (4) 
 
 In the United States it has in sov.ie cases been held, that even 
 in the absence of a statutory enactment, it is competent for a 
 Court of Chancery to appoint a receiver to take charge of and 
 manage a railroad, where such a course is indispensable to secure 
 the rights of the legitimate stockholders, and to prevent a failure 
 
 (1) High on Receivers, § 288. 
 
 (2) De Winton f, Mayor of Brecon, 26 Beav. 541 ; Kerr, Receivers, 2nd 
 Am. ed., p. 68. 
 
 (3) Gardner r. London, Chatham & Dover Ry. Co., L. R,, 2 Ch. App. 
 212. 
 
 (4) Per Lord Cairns in Gardner v. Lon., Cliatliani & Dover Ry. Co., 
 L.R., 2 Ch. App. at pp. 212-213. 
 
 / ' 
 
 il 
 
 '1; 
 
 ■BH? 
 
128 
 
 The Railway Law of Canada. 
 
 J f 
 
 of justice, (i) As was said by Mr. Justice Swayne of the 
 United States Supreme Court : (2) " It has become usual to 
 clothe such officers with much larger powers than were formerly 
 conferred. In some of the States they (receivers) are by statute 
 charged with the duty of settling the affairs of certain corporations 
 when insolvent, and are authorized to sue in their own names. 
 It is not unusual for courts of equity to put them in charge of the 
 railroads of companies which have fallen into financial embarrass- 
 ment, and to require them to operate such roads until the difti- 
 culties are removed, or such arrangements are made that the 
 roads can be sold with the least sacrifice tf the interests of those 
 concerned. As regards the Statutes, we see no reason why a 
 court of equity, in the exercise of its undoubted authority, may 
 not accomplish all the best results intended to be secured by 
 such legislation without its aid." 
 
 Louisiana. 4_ jn Louisiana, where the law of sequestration is similar to tiiat 
 
 of the Province of Quebec, it has been held that, under the laws 
 and jurisprudence of the State, the courts have no power to 
 appoint receivers to railroad companies, and that, as a general 
 principle, courts have no jurisdiction to appoint receivers for 
 corporations in the absence of express statutory authority. C3) 
 But it has been held in that State that the courts have the 
 power of appointing receivers to liquidate the affairs of insolvent 
 corporations, if there be no other person provided by law to 
 effect such liquidation, whenever it is necessary in order to pre- 
 serve the interests of all parties concerned. (4) 
 
 This was in the case of an insolvent bank, and, as the corpor- 
 ation had ceased to exist, the court said ';jal it was bound, (U- 
 propria motu, to prevent the confusion ^nd dilapidation con- 
 sequent upon the abandonment of its affairs produced by the 
 inefficiency of the law. The same was held in a later case. (5) 
 The courts of Louisiana have carefully refrained from appoi l- 
 
 (i) Stevens v. Davidson, 18 Grattan 828; Paige c. Smith, 99 Mass. 
 395 ; Bliimenlhal v. Brainard,38 Vt. 408 ; Del., Lack. & West. Ry. Co. 
 V. The Erie Ry. Co., 6 C. E. Green 298, 
 
 (2) Davis V. Gray, 16 Wall. 219. 
 
 (3) Baker v. Louisiana Portable Ry. Co., 34 La. Ann. 755. 
 
 (4) Starke v. Burke, 5 La. Ann. 740. 
 
 (5) In the matter of the Mechanics Society, 31 La. Ann. 627. 
 
Reckivers. 
 
 129 
 
 ing receivers, and the above instances are the only ones where 
 such an appointment would be made, (i) 
 
 On the other hand, it has been laid down as a general principle 
 in a Quebec case, (2) that the judge has power to order every 
 kind of conservatory measure which the interests of the parties 
 require ; that this power is indefinite, and confided to the wis- 
 dom and discretion of the judge who exercises it; and that 
 article 1823 of the Civil Code is not restrictive, but simply 
 indicative of an instance in which a sequestrator can be ordered. 
 This is the view of M. Gillouard, the latest French author on 
 the law of Sequestre, (3) who thinks that sequestration can be 
 ordered even where there is no dispute as to the property in, 
 or possession of, the thing sought lo be sequestrated. 
 
 o. The French authors do not discuss the question of seques- France, 
 tration of bodies corporate. In France, all railways, whether 
 constructed or conceded by the State, or by the departments or 
 communes, are considered as forming part of the national high- 
 ways, and, consequently, of the public domain. 
 
 They are therefore not susceptible of alienation or of expro- 
 priation. (4) 
 
 The French authors and jurisprudence therefore are in no 
 way applicable, as their system of railway legislation is so 
 different from ours. 
 
 (». The case of Pcto v. Wclland Canal Company (5) brought Ontario, 
 up for the first time in Ontario the question as to whether a 
 judgment creditor of a railway company, with execution against 
 lands of the company lodged in ths hands of the sheriff, is 
 entitled to the appointment of a receiver of the earnings of the 
 road, the profits thereof to be applied in payment of his demand. 
 Cases ])ad already been decided in which courts had appointed 
 receivers of railways at the instance of mortgagees, it being con- 
 sidered that when the Act authorized the mortgage of a railway, 
 it also, by implication, authorized the appointment of a receiver 
 
 (1) Baker t). Louisiana Portable Ry. Co., 34 La. Ann. 756. 
 
 (2) Drummond v. Holland, 23 L. C. J. 241. 
 
 (3) Gillouard, Pr6t D6pot, at Sequestra (1892), No. 175. 
 
 (4) Vigoureux, chimin defei (i886), No. 15. 
 
 (5) 9 Grant Chy. 455. 
 
 9 
 
 'X 
 
 ( i. 
 
 mm 
 
 0HBS 
 
130 
 
 The Railway Law ok Canada. 
 
 I 
 
 as necessary to give effect to the mortgage. These cases show 
 that the appointment of a receiver to a railway is not contrary to 
 public policy, and in fact it must be obvious that as a receiver is 
 only to receive the surplus, after defraying all the expenses of 
 the road, which is all the time managed by the directors of the 
 company, the appointment of such an ofiicer cannot be contrary 
 to public policy, (i) In this case also the distinction was made 
 between a receiver as such and a receiver with the powers of a 
 manager of a road. A receiver, wh ;n spoken of under the Ontario 
 or English law, is undoubtedly one with very limited powers, 
 and not the receiver as meant in the United States, where that 
 officer is usually a manager of the railway. 
 
 In an early Ontario case (2) a " managers/receiver" of the 
 undertaking was appointed, so states the head note ; but accord- 
 ing to the report, the petition asked for a " receiver" of the 
 undertaking, and a receiver in Ontario is not a manager. (3) His 
 duties are stated to be, in Simpson v. The Ottawa & Prcscott 
 Railway Company, (4) to receive the gross receipts of the com- 
 pany for the carriage of passengers, freight, mails, etc., and to 
 pay the bills for running expenses thereout. And this is the 
 sense in which the duties of a receiver in England are inter- 
 preted. It was not until the Statute 30 and 31 Vic. (c. 127, s. 
 4) that manag . s could be appointed by the Court of Chancery 
 over a railway company. The words used in sec. 4, c. 127, of 
 that Act are : " may obtain the appoi.itment of a receiver, and, 
 if necessary, of a manager, of the undertaking." 
 
 It was further said in the above case that the management of 
 the railway must remain in the hands in which the Legislature has 
 placed it. It is no part of the duty of a receiver to interfere 
 with it. (5) 
 
 (1) F.sten V. C, in same case. 
 
 (2) Gait T, Tlie Erie, etc. , Ry. Co., 14 Grant Cliy. 499. 
 
 (3) Allnn V. Manitoba & N. W. Rv. Co., 14 Can. L. T. 315. , 
 
 (4) I Ch Chamb. 126 ; 10 U. C. L. J. (O. S.) 108. 
 
 (5) A holder of overdue debentures issued liy a tramway company incor- 
 porated by special Act of Parliament, In-ought an action to realise his 
 security, and moved for the appointment of a receiver and manager. The 
 company was stated to be insolvent, but had not been ordered to be wound 
 up — Held, that a tramway company was not within the principle of Gardner 
 V. London, Chat. &Dover Ry. Co. (L.R. 2 Ch. 201), and that the court would 
 appoint a manager. Bartlett v. West Metropolitan Tramway Co. (1893) 3Ch. 
 
Receivers. 
 
 131 
 
 The learned judge also staled the duties of a receiver to be. 
 "to watch the expenses of the company ; to remonstrate with its 
 officers and servants when, in his judgment, they are needless or 
 excessive; and, when due attention is not paid to his represen- 
 tations, lo present the matter to liiis Court ; and this more es- 
 pecially if any case should come under his observation of ex- 
 l)eiiscs incurred otherwise than in good faith. He will of course 
 have a right lo the fullest information, as well from inspection of 
 tlie books as otherwise. I think all this necessarily Hows from 
 the nature of his duties. He is called on to pay out monies as 
 for exjienses properly and necessarily incurred, and he shoiil 1 
 lo a reasonable extent see that they are such." (i) 
 
 Uoyd, C, in Lee v. Victoria Ry. Co. (2) said, speaking of liie 
 appointment of a receiver: "The management of I lie road is not 
 interfered with, but is left to the board of directors subject to this, 
 that the court, through its officer the receiver, retains control of 
 the expenditure. The position is anomalous, lo Morae extent, 
 owing to the absence of any power to appoint a manager, which, 
 though conferred upon the court in England, is not so here." 
 
 Upon the wliole, there would seem to be no reason, even in 
 the Province of Quebec, why the courts slioiild not appoint •• 
 sequestrator or receiver of the properly, toils, and revenues of a 
 railroad, with the view to having the same administered for the 
 benefit of the creditors of the company, subject to the rights of 
 mortgagees and otlier prior incumbrancers, and to the right of Ihc 
 directors of the company to work and manage llie undertaking 
 for the necessary purposes of the statute 
 
 JUit the appointment of a sequestrator, or receiver, with power 
 lo manage .nid carry on the company, would appear, from the 
 jurisprudence with regard to receivership in f^ngland, ihe United 
 States, and this country, to be incompetent of tlie courts here in 
 the absence of statutory authority. 
 
 7. In the appointment of a receiver the court acts only upon a i„ what cases 
 proper case being made out for the exercise of its jurisdiction, f^PPo'^tment 
 
 according to well established principles ; and in that sense only 
 
 347 ; 69 L. T. 560. See also Ames v. The Trustees of the Birkenhead Docks, 
 20 lieav. 350, where the respective cUilies of the governing body of the com- 
 pany on the one hand, and of the receiver on the other, are defined. And 
 see I^e t). Victoria Ry. Co., 29 Grant Chy, iii, Boyd Ch. 
 
 (I) I Ch. Chamb., at p. 30. (2) 29 Grant Chy. in. 
 
 wi.'l be made. 
 
 !l 
 
 vmrnHom 
 
'32 
 
 The Railway I,.\w ok Canada. 
 
 Duties'and 
 powers. 
 
 Ji 
 
 i 
 
 <:an a receiver be said to be cxdcl>ito j'usticia, whether tlie apph- 
 cation be interlocutory or made at the hearing, whether the ap- 
 pointment of a receiver is the sole object of the action or only 
 incidental toother relief, and whether the relief is sought at the 
 instance of a judgment creditor or of anyone else, (i) 
 
 And the court will not appoint a receiver, by way of equitable 
 execution, on the ground that it will do no harm, unless there is 
 reason to believe that there is something to be received in which 
 the plaintiff can be interested. (2) I rustees of first mortgage bonds 
 covering the first division of a railway are entitled to have a 
 receiver appointed for that division, upon default of the com- 
 pany to pay interest on such bonds, and this independently of the 
 prior appointment of another receiver of the whole road by judg- 
 ment creditors of the company. Such judgment creditors could 
 not have the trustees of the first mortgage bonds made parties 
 to their suit, the latter having a lien and charge which were prior 
 to the former's claim ; they could only have parties added whose 
 claims were subsequent to theirs. (3) 
 
 8. Where a receiver of a railway company was appointed to 
 receive " the rents, issues, and profits of the railway," it was held 
 that it was his duty to receive llic gross receipts of the company 
 for the carriage of passengers, freight, mails, etc., and to pay the 
 bills for running expenses tiiercout, and not to receive only the 
 surplus after the payment of expenses. 
 
 In the case of a judgment creditor who has secured the ap- 
 pointment of a receiver, it is usual for the latter, out of the gross, 
 revenue received by him, to pay the expenses of the undertaking 
 and the interest of the mortgagees, if any, and the balance into 
 court. (4) 
 
 Section 94 of the Act provides that the rents and revenues of 
 the company shall be subject in the first instance (after payment of 
 certain penalties) to the payment of the " working expenditure" 
 of the railway. The difBculty is to determine how far debts in- 
 
 (1) Smith V. Port Dover & Lake Huron Ry. Co., 12 Ont. App. 288. 
 
 (2) Smith V. Port Dover & Lake Huron Ry. Co., 12 Ont. App. 288. 
 
 (3) Allan V. Man. & N. W, Ry. Co., Man. Q.B. 1894, 14 Can. L. Times 
 
 (4) Ames t". Trustees of the Birkenhead Docks, 20 Beav. 350. 
 
 ■I ;! 
 

 Recfjvkrs. 
 
 '.?3 
 
 curreri for working expenses before llie appoinlnieiit of a receiver 
 would be i)referrcd to the claims of the bondlioklers. 
 
 In Ontario, where a receiver of a railway had been appointed 
 to lake the revenues, issues and profits, to pass his account 
 periodically, and to pay into court the balance due from him after 
 providing for the working expenses and outgoings of the rail- 
 way ; liie master was directed to take an account cf all persons 
 entitled to liens, charges or incumbrances, and to settle their 
 jjrioritics, and the money to be jiaid into court was to be paid 
 to such jjcrsons according to their priorities to be ascertained. 
 The (ourt lield that the master, in taking the receiver's accounts, 
 siiould h;ne allowed debts paid for working expenses which wen- 
 incurred before but not regularly payable until after his ajjpoint- 
 ment, but not those already in default at that time, which latter 
 were i)roperly payable out of the money to be paid into court 
 according to their priority, (i) 
 
 The phrase "ordinary mode of doing business" is interpreted 
 as meaning the modewhicli is most advantageous or convenient, 
 and does not include other modes or expedients to which a com- 
 pany may be driven by its necessities, and the natural result of 
 which is the creation of debts. (2) The term "working ex- 
 penses," regarded in the ordinary signification of the words, and 
 also in relation to ihe ])urpose of keeping the railway going, not- 
 withstanding the appointment of a receiver, has been held to in- 
 clude only those expenses which are necessary to keep it working, 
 and not expenses of by-gone times, by which the present working 
 of the road was no more affected than it was by any overdue de- 
 benture or coupon. (3) 
 
 In the case of Walibridgc v. Farwcll, (4) however, in the Su- 
 preme ('ourt, Mr. Justice Strong used the following significant lan- 
 guage :" I do not by any means intend to preclude myself in future, 
 should the question be raised in proper form and in an appro- 
 priate case, from considering whether the principle which is now 
 universally recognized in the United States, as to the applicability 
 of current earnings to current expenses, incurred either whilst 
 or before railway property comes undir the control of the court. 
 
 (1) GofKlerham c. Tor. & Nipi«sing Ry. Co., S Out. App. 683, per 
 r'atterson, J., at p. 694. 
 
 (2) Ibid. (3) 11)1(1., p. 694. 
 <'4) i8Cnn. S. C. R. i. 
 
 n/ 
 
 
 k 
 
r 
 
 <S4 
 
 I'hk Railway Law ok Canada. 
 
 
 Division of 
 income. 
 
 I)y being placed, al the instance of mortgagees, in tlic iiands of 
 a receiver, in preference to mortgage creditors wliose security lias 
 priority of date over tlie obligation thus incurred for working 
 expenses, siiould be adopted by our courts. 'I'his doctrine is 
 now firmly settled in tlie United States, where railway mortgages 
 exactly resemble those in use wiili us. and which do not al all 
 resemble the securities of debeniure holders under the F^nglisli 
 system of securities fur borrowed capital ; and the practice 
 referred to is so pregnant with justice, good faith and equity that 
 there may be found strong reasons for ajjplying it here svhon the 
 question arises." 'I'liere is no doubt that, as stated by the 
 learned judge, the i)rinciple he advocates is now universally 
 recognized in the United .States; but in that country the rule has 
 been extended to mere contract debts of the railway company, 
 such as for labor, materials and supplies, incurred prior to the 
 appointment of the receiver, and unsecured by any lien upon the 
 property. 
 
 In such cases Mr. Higii, in his work on receivers, (i) tliinksthe 
 doctrine is wholly indefensible upon sound legal reasoning. The 
 allowance of such i)refere ice plainly impairs the obligation of the 
 mortgage contract, and in practice frequently absorbs much of the 
 mortgage security. That author thinks, iiowever, that the doc- 
 trine is so strongly intrenciied in authority in the United States 
 that it can no longer be questioned. 
 
 a. It has been forcibly argued that, the duty of the railway 
 company being to ap|)ly its current income to the payment of ob- 
 ligations incurred in the daily operation and management of the 
 road, before applying such income for the benefit of the mortgage 
 bondholders, a diversion of such income, as by payment of 
 bonded indebtedness, or by permanent improvement of the 
 property for the benefit of the bondholders, would justify the 
 courts in restoring to such unsecured creditors from the 
 receiver's incoiie what has been improperly diverted by the 
 company for the bi^nefit of the bondholders; and that the mort- 
 gagee, in accepting his security, is regarded as having impliedly 
 agreed that the current debts of the company, incurred in the 
 
 (I J High, § 394". 
 
 vss 
 
Rkceivers. 
 
 «35 
 
 liaiids of 
 iiiily has 
 
 working 
 ;)clrine is 
 lortgJiges 
 ot at all 
 L' Englisli 
 
 practice 
 quity that 
 wlu;n the 
 1 hy the 
 iiivcrsally 
 e rule has 
 company, 
 ior to the 
 t upon the 
 
 thinks the 
 ling. The 
 tion of the 
 luchof the 
 It the doc- 
 ted Stales 
 
 he railway 
 neiit of ob- 
 lent of the 
 e mortgage 
 layment of 
 enl of the 
 justify the 
 from the 
 ted by tlie 
 t llie mort- 
 ig impliedly 
 irred in the 
 
 i 
 
 ordinary course of its l)usiness, shall be paid out of its receipts 
 before he has any claim upon the income, (i) 
 
 On the other liand, it seems to the author that the mortgagee 
 is entitled to presume that the income of the company has been 
 l)roperly applied ; and it would seem liardly just when becomes 
 to realize his security that he should find it largely impaired by 
 overdue and outstanding debts, taking precederrce of his claim on 
 tlie ground that they were incurred for the '' working expenditure" 
 of the railway ; and these words in the Act would seem to include 
 only the ex|)enditure necessary to work and carry on the railway, 
 and not past due debts ; the author would, therefore, prefer tlie 
 doctrine laid down in Gooilerlnim v. Toronto A; Nipisshi;^ Ry. Co., 
 (2) notwithstanding the very broad language used by the (now 
 Chief Justice of the Supreme Court in the dictum above cited. 
 
 10. While it is the duty of the receiver of the gross revenue of E.xtiaordinary 
 a railway, to pay thereout all expenses necessary for the mainten- outlay, 
 ance, management and working of the undertaking, he would not 
 be warranted in spending the same in any extraordinary outlay j 
 atid where an application was made by the receiver to authorize 
 the purchase of a large amount of rolling stock, the outlay in 
 respect of which would require to be met by anticipating incoine, 
 the court refused to sanction the expenditure. (3) Nor have the 
 Court jurisdiction or discretion to order a receiver, who repre- 
 sents other interests than those of the first mortgagees of a rail- 
 way, lo borrow money on the security of the railway and payable 
 in ])riority of all other charges thereon ; such sum to be used in 
 paying debts claimed to have been incurred for " working expen- 
 diture " under the Act. This could only be done on the appli- 
 cation of the first mortgagees. (4) 
 
 11. The payment bv a receiver of a sum of money to the owner Payment of 
 of land over which the line ran, for the right of way over his lands, ^^^^^ ■ ''"^^' 
 he having threatened to obstruct the passage of the company's 
 
 trains unless paid, is not a payment which could be included in 
 the term " working expenses or outgoings." (5) 
 
 (1) Fosdick r. Schall, 99 U. S. 235. Williamsons' Adms v- W. C. V. M. 
 & G. S. R. Co., 33 Grattan 624. High on Receivers, § 394 c. 
 
 (2) Ubi supra, p. 132, 
 
 (3) Lee V, Victoria Ry. Co., 29 Grant's Chy. 1 10. 
 
 (4) Allan V. Man. & N. W. Ry. Co. (Man, Q.B.), 14 C. L. T. 416. 
 
 (5) Gooderham y. Tor. & Nipissing Ry. Co., 28 Grant Chy. 212. 
 
 
CHAPTKR VII. 
 
 KMINENT DOMAIN. 
 
 Ji 
 
 «' 
 
 1. Cfovn lands. 
 
 2. Alienation of such lands . 
 
 3. Lauds resen^e'd for naval c 
 military purposes. 
 
 4. Indian reserve land, 
 
 5. Landi oj another raihuay. 
 
 6. Contracts for purchase of lauii 
 before defosit of map and plan . 
 
 7. Annual rent. 
 
 8. IVho may comey lands. 
 
 9. Powers limited in certain cases. 
 
 10. Title of company. 
 
 11. Agreement with proprietors, eti , 
 after deposit of plan. 
 
 12. Land that may betaken with 
 out consent. 
 
 13. Extra land. 
 
 1 4 . Occupying land for construction 
 purposes . 
 
 1 5 . Power to take materials for con ■ 
 struction. 
 
 16. Power to reach such material . 
 
 17. Power to purchase lu'iolc pro- 
 perty 7vhere better terms ran be 
 sicured thereby. 
 
 18. Proceduie in ease of disagree- 
 ment. 
 
 ig. A'ot!.--. 
 
 20. Arl'itrators. 
 
 21. ] irst Meeting. 
 
 22. Examination ofwititesses. 
 
 23. Award final . 
 
 24. Appeal from award, 
 
 25. Aibitrator.t must act at meeting. 
 
 26. Vaeancy among arbitrators. 
 
 The powers of eminent domain granted to railway companies 
 under The Railway Act have already been generally slated ; (t ) 
 it now remains to be considered in what manner and 10 what 
 
 (1) iupra,\^. -Jiel sf./. 
 
 27. J)isijualifualion of arbitrators. 
 2S. .libitrators, ho-w to tie guided in 
 makihg valuationi. 
 
 29. Increased value to remainder of 
 land. 
 
 30. Lands injuriously affected by 
 the construction of the railway. 
 
 31. A'ature oj damages that may 
 be conu'de/ed by arbitrators. 
 
 32. Value of land, how estimated, 
 
 33. .Access to landways and -water- 
 ways. 
 
 34. Quebec law and English l,<w on 
 the subject compaied. 
 
 35. Loss of business. 
 36- Injury to business. 
 
 37. Loss of privacy. 
 
 38. Injury to franchises, ferries. 
 
 39. Injury to ea.emeuts. 
 40 Injury to trees. 
 
 4 1 , Compensation a bar to all further 
 
 claim. 
 42-44. lorm ofawar.i. 
 43. Desistment ft om notice. 
 45. Remedies ag,iinsi I i: a-wurd. 
 
 40. Appeals from award. Practice. 
 
 47. ISringing the arbitration record 
 into court, 
 
 48. Grofinds of appeal. 
 
 49 . Quesiious of fad. 
 
 50. Principles upon which Courts 
 interfere upon questions of fact, 
 
 51 Costs of arbitration. 
 S 2 Interest. 
 
Eminent Domain. 
 
 »57 
 
 extent, and under what limitations and conditions, these powers 
 may be exercised. 
 
 Supposing that the company has made and deposited the ne- 
 cessary plans, ond given the notices required of such deposit, (i) 
 licw is the company to proceed to obtain the land required to 
 construct and maintain the railway ? 
 
 1. First as to Crown lands ; the company cannot take any of crown lands, 
 the lands of the Dominion, without the consent of tie Governor 
 in council, (2) nor any of the lands belonging to any Province 
 witliout t!ie consent of the l-ieutenant Governor ; (3) but with 
 such consent, and upon such terms as may be prescribed by 
 those executive officers, the company may take and appropriate, 
 for the use of its railway and works incidental thereto, but not 
 alienate, any of the lands of the Crown lying on their route 
 which have not been granted or sold to others, and whicli are 
 necessary for tlic purposes of the railway. (4) They may also 
 take any such part of Wic public beach or land covered by any 
 lake, stream, river or canal, ulways with ^acu'conseiili as may be 
 necessary for the co'".struction of tlie railway. (5) 
 
 Whenever such If.nds are vested in the Crown for any special 
 purpose, or subjecc to any trust, the compensation money which 
 die company pays therefor siiall be held or applied by the gov- 
 ernor in council for the like puipose or trust. (6) 
 
 3. But the coiapany could not, prior to the passing of the Alienation of 
 an.ending Acts 53 V'c, cap. 28, and 55-56 A^ic, ca|>. 27, alienate •'^''^h la^'ls. 
 any part of the Crown lands oi/iained for the construction or in 
 aid of the railway. And even under par. s., added to section 90 
 by thos' Acts, it would seem dot btful w'^":!'?!- the company 
 could alienate any parf of Crown lands '.aken under section 99. 
 The power to alienate under par. s., according to the strict lan- 
 guage of liie statute, only rtfers to lands '' obtained " from the 
 Crown by way of subsidy or otherwise; and, as the prohibition 
 to alienate contained in section 99 remains, tlie legislature would 
 appear to have intended to mrkc a distinction in this respect 
 
 
 (1) Sees. 123 to 135 ; and sec. 144; and .w///V7, p. 76. 
 
 (2) Sec. 99. (3) .See appendix, sec. 99. 
 (4) Sec. 99. (5) Ibid. 
 
 (6) Ibid. 
 
 i 
 
 iliiiCatjliminWijtti 
 
ij8 
 
 Thk Raiiavav Law ok Canada. 
 
 ii 
 
 ii 
 
 Lands 
 reserved for 
 naval or 
 military 
 purposes. 
 
 Indian lesin- 
 land. 
 
 Lands of 
 
 another 
 
 railway. 
 
 between lands " obtained" and lands "taken and appropriated" 
 under sec. 99. 'I'liis is the only interpretation which would give 
 effect to the contradictory enactments of the two sections; and 
 it is not satisfactory, inasmuch as section 99 speaks of compen- 
 sation money to be paid for lands taken thereunder ; and cer- 
 tainly the taking of lands, with the consent of the Crown, and on 
 payment of compensation therefor, would seem to amount to an 
 "obtaining" under section 00, par. s. There seems to be here 
 an almost irreconcilable conflict, 
 
 3. Whenever any part of the Crown lands, which the com- 
 pany may require for their railway, are reserved for naval or mili- 
 tary purposes, tiie company must firrt obtain a license under the 
 hand and seal of the Governor General. But tiiis license cannot 
 be granted until a report has been made, approving of such 
 license, by the naval or mihcary autiioritics in which tiie lands 
 are vested, (i) 
 
 ve 4:- Again, it may be necessary for liie railway company to take 
 or use a portion of an Indian Reserve. This cannot be done 
 without the consent of the CJovernor in Council ; and tiie com- 
 pany must make compensation whenever they take or use any of 
 such lands, or when any such are injuriously affecied by the con- 
 struction of tlic railway, the same as they would have to do in 
 the case of lands belonging to private individuals or corpor- 
 ations. (2) 
 
 3. In the construction and operation of the railway it may be- 
 come necessary that the cOi.'jany should obtain a right of way 
 over lands owned and occupied by another railway company, or 
 they may require the use of the tracks, or portions of the tracks, 
 or station grounds, or the lands of another railway company ; and 
 they are given power under the Act, with the approval of the 
 railway committee on application, after notice to the other com- 
 pany, to take possession of, use and occupy any lands of such 
 other company. The railway committee are empowered to give 
 such order in connection therewith as they may think just in the 
 public interest ; and all the provisions of the Act with regard to 
 
 (1) Sec. 100. See, as to nature of title to such lands, (Irmul Trunk Ry. 
 Co. V. Credit Valley Ry. Co., 27 Grant's Chy. 232. 
 
 (2) Sec. 101. 
 
 i 
 
Eminent Domain. 
 
 '39 
 
 the taking of land apply to sucli cases, both as to the power of 
 taking lands and to the compensation to be given to the other 
 company, (i) 
 
 0. I '"'"'. c referring to the extent of land which may be taken Contracts for 
 by expropriation, without the consent of the proprietor or '''"''''" {!,"n(j bej^i"' 
 vitiivi, it may be well to jioint out that the power to acquire land deposit of 
 with the consent i)f the propriciors by voluntary deed or bargain ™^1^ "™ 1^^"' 
 ' ""* rray be exercised before the deposit of the maps and plans, 
 ^jid Ivjfore the setting out and ascertaining of the 'and required 
 lor 11. e railwaj ; and tiie contncts or agreement' -or such acqui- 
 sition are declared to be binding at the ];rice agreed upon, pro- 
 vided tiiat tiie lands are afterwards set out and ascertained with- 
 in one year from tlie date of the contract or agreement, and even 
 though such land has in the meantime become the property of a 
 third ])crson ; and possession may be taken and price dealt with 
 as if fixed by award of arbitrators, and the agreement is declared 
 lo be in tiie i)lace of an award. (3) 
 
 T. In tlie case of persons who cannot, in the ordinary course Annual rent, 
 of law, sell or alienate lands which have been set out and ascer- 
 tained, a fixed annual sum or rent must be agreed ujion as an 
 equivalent, and if the amount of tiiis rent cannot be agreed 
 upon, it is fixed by arbitrators in the manner hereinafier referred 
 to, with regard to forced expropriation of property. (4) If any 
 such annual rent is agreed upon, or determined, or any part of the 
 purchase money remains unpaid, the railway {)roperly, and its 
 lolls and revenues, are liable for the payment, in preference to all 
 other claims, with the exception of those due to the Gtjvern- 
 
 (I) Stc. 102. (2) Stc, 90 Cf). 
 
 (3) Sec. 141. 
 
 The deed of sale for l!ie riglu of passage does noi co\cr incidental 
 ilamages arising from the works of a railway, unless: such damages are 
 expressly mentioned in ihe deed. Cantin v. The N. b- Ry. Co.,Q. li., 6 
 Sep., 1877, Ram. Digest ^91. 
 
 i'ossesfrion by a railway company of a person's land witliout his consent, or 
 widioLit making him a prior offer iherefor, gives to the latter a recourse by 
 petitory action against the comjiany. Cie. de Ch. de Fer Central v. Le- 
 gendre, 11 Q. L. K. 106, (^. I!. 
 
 (4) Stc. 142. See lirewslcr v. Mongeau & The M. it S. Rv. Co., M. L. 
 R. 3Q.li. 20, lo L. N. 141, 15 R. L. 67.(,). I!., 31 I-.C). 115', Q. 11,1.^87, 
 and Supra p. 79. Note. 
 
 "'■-UAT* WtbXs Su£i&.'$HW 
 
 Tji^"** T^Mi««yK»* - »,; ^i»^jw.'- 'j-wiwm.'i 
 
140 
 
 Thi-: Railway I^aw ok Canada. 
 
 1 1 
 
 ment for penalties and the working expenses of the railway, 
 ])rovidcd that the deed creating this charge is dulj' registered, (i) 
 
 Who m.iy H. It is provided by the Act that tenants in tail, or for life, 
 
 convey laius, gi,^,jj^^,ig^ q^ tnlors, as they are called in Quebec, curators to 
 incapable persons, executors, administrators, trustees, and insti- 
 tutes imder suljstitutions, and allperso•■^s whosoever, not only on 
 their own behalf and that of their heirs and successors, but also 
 on behalf of those whom tluy shall represent, whether infants,, 
 issue unborn, lunatics, idiots, married women, or other ])ersons 
 seized, possessed of or interested in any lands, may contract and 
 sell to the company tlie whole or any part of such lands. (2) 
 But in case such persons iiave no right in law to sell the land'^^ 
 they must obtain from a judge, after notice to the parlies 
 interested, an authorization to sel', and the judge may give sucii 
 orders as are necessary for that purpose, and, if required, an 
 order to secure the investment of lli^ purcliase money, in 
 accordance with the law of the particular Province, in order to 
 secure the interests of the owner. (3) 
 
 (1) Sec. 143. See Biewi-ler 7\ MoDgeau &. The M. c<: S. Ry. Co., siipm,. 
 p. 79, note. 
 
 (2) Sec, 136. It wns lield by tlie .Supreme Court, that untler ihc some- 
 what similar provisions of C. S C, cap. 66, s.u, as explained and interpreted 
 by 24 Vic., cap. 17, .s. i,a tenant for life was authorized to convey the 
 interest of the remainder-man, but not to receive payment for the proportion 
 of the i)urchase money representing such interest. Midland Ry. Co. ?'. 
 Young, i6 L.N. 2S4 ; 22 S. C. K. iga, confirming judgment of th.c Couit of 
 Appeal, 19 O. A. R. 265; .and see Cameron v. Wigle, 24 Or. Chy. 8. 
 
 As lo sale of infants' estate nnder former Acts, see Ounlnp v. Can. 
 Central Ky. Co., 45 U- C.Q. 15. 74. 
 
 (3) Sec. 137. An authorization to a curator to a substitution to sell real 
 property affected by a substitution, unaccompanied l)y a similar authorization 
 to a tutor ad hoc to such of the substitutes as are living, but incapable of 
 acting, is in-ufficieni . 15enoit r. 15enoit, 18 L. C.J. 2S6, S. C. 1874. 
 
 Every alienation or hypothec of the immoveable rroperty of a minor with- 
 out judicial authorization is radically null. l>elivi.'au i\ Harthe, 7 U. 1,. 
 453, and see C. C. 297 and R. .S.() , art. 5794. 
 
 An appeal does not lie to the (jueen's Bench fiom an order of a judge 
 of the Sujierior Court homologating a family couucd. and ordering the sale of 
 a minor's immoveables, liiliveau v- Clement & Chevrefds. 9 R. 1,. 664, Q.ll. 
 Where land was conveyed to C. 1). for life, with remainder to her chiUhen, 
 and C- U., during the infancy of the children, agreeii to sell and convey to .t 
 railway company for the purposes of its railway : — Held, that C. F*., n itwith- 
 standing the provisions of sec, 136 of the Hallway Act, had no light in law 
 to sell ; to get such right an order of a judge under sec. 137 was re(iuirod ; 
 and where the proceeding was entirely for the benefit of tiie company, 
 and no factiou.s opposition was raiseil by anyone, the company should pay 
 the cost of the order as part of the price of the land. /iV Dolsen, 13 1'. R. 
 !<4, and sie Wilson i'. Craliam, 13 O. R. 63l. 
 
Eminent Domain. 
 
 141 
 
 'J'heie might seem lo be an apparem conlradiclion between 
 tliis provihion and lliat of sec. 142, which requires a fixed annual 
 rent, and not a principal sum, to be paid, in the case of persons 
 who have no power to sell in the common course of law. 13ut 
 this latter section would appear to apply only to contracts and 
 agreements to sell under section 141, made before the deposit of 
 the plan, and the selling out and ascertaining of the lands 
 required for the railway ; though why this distinction should 
 be made is by no means clear. 
 
 1). 'I'liese powers, in tiie case of executors who arc not Powers 
 invested witli power over the real property of the testator. '"','J„ p!|ggs 
 administrators of persons dying intestate, and ecclesiastical and 
 oilier corporations, and trustees of land for church or school 
 ])urposes, can only be exercised with respect to such lands as are 
 actually required for the use and occupation of tiie railway, (i) 
 
 10. But such a sale or conveyance, once made, or any con- Title of 
 tract or agreement to sell, made under these provisions, vests '^"'"'■'""^' 
 the company with an absolute title to the land, free from all trusts 
 and restrictions what-soever, and the person so selling, or agreeing 
 U) sell, is indemnified by the Act for whatever he may do under 
 its provisions. (2) And it i? further provided that the company 
 shall not be responsible for the disposition of the purchase mo- 
 ney, if paid to the owner of the land or into court for his benefit- 
 
 (3) 
 
 The effect of these sections would appear to be that, while the 
 company may obtain a valid conveyance in fee simple from 
 persons seized or possessed o( lands in ;; representative or fidu- 
 ciary character, such as the-?,' mentioned in sections 136 to 138, 
 tlie purchase money must be paid to the real owner, or if he 
 cannot be ascertained, or if for any other reason the company 
 
 (1) Sec. 138. The Rector of Woodstock filed .t bill against the G- \V. Ry. 
 Co. for the specific ]ieiformance of an alleged contract for himself and his 
 successors as the consideration for certain rectory land conveyed by the 
 plaintiff to the company for lai'iway purjioses. 
 
 Tlie Court of Chancery decreed for the plaintiff. 
 
 The C^ouit of Appeals not being satisfied with the evidence of the all ;ged 
 contract, and also deeming the contract lo be open to various objections, 
 reversed the decree and ordered the bill to be dismissed with costs. Bettridge 
 : . The G. W. Ry., 3 U. C, E. & A. R. 58 (Grant), 
 
 (2) Sec. 139. (3) Sec. 140. 
 
'"•• •" • -■'-— T--- ^ - ■—'■■. 
 
 !| 
 
 taMMMHI 
 
 142 
 
 Thk Railway Law ok Canada. 
 
 ij 
 
 sees fit, into cou.t for his benefit. And probably the same hiter- 
 jjretation would be given to these sections of the present Act, 
 as was given to tiie provisions of C. S. C, cap. 66, on the same 
 subject in M.iiand Ry. Co. v. Young; (i) where the language 
 of the staluic was almost in precisely tlie same terms as the pre- 
 sent one. 
 
 As to mortgages, hypothecs and other encumbrances upon 
 the propertv. the question is not without difficulty. In Quebec, 
 ;he mortgagee has only a privilege or preference upon the pro- 
 ceeds of the properly of his debtor, when it is brought to sale by 
 process of law : (2) but the latter is not divested of his property, 
 and may alienate it, subject, however, to the hypothec, which 
 subsists ui)on the property notwithstanding the sale. (3) And 
 the creditor of the hypothec may take an hypothecary action to 
 bring the property to sale in the hands of any third holder, unless 
 the latter prefer to pay his claim, {i^) In the absence, therefore, 
 of any express words in the Act extinguishing hypothecs upon 
 lands sold to a railway company under these sections, the com- 
 pany would remain subject to the hypothecary action. There 
 do not seem to be any such express words. Section 139 merely 
 says that the sale shall vest in the company " the fee simple in 
 the lands, freed and discharged from all trusts, restrictions and 
 limitations " ; which would seein to refer to such as are indicated 
 in the preceding sections ;— the words certainly do not include 
 hypr'thecj and encumbrances. Section 140 only relieves the 
 company from liability for the "disposition" of the purchase 
 money when paid to the "owner." The word owner here is not 
 to be taken in the sense of the definition given in the interpreta- 
 tion clause of tue Act [sec. 2, par. (p)], hut in its natural and 
 ordinary meaning. (5) In Quebec the mortgagor does not cease 
 to be the owner of his land, as above pointed out, and when he 
 sells is jnder no obligation to apply the purchase price to the 
 extinction of any hypothecs, as the purchaser takes the land 
 subject thereto, leaving him only his recourse against the seller. 
 In the case of land taken in invituvi^ a distinction is made by 
 the Act. The compensation stands in the place of the lands ; 
 
 .1) 22 S.C.K. 190. (2)C.C. 2016. 
 
 (3) C.C. 2053. (4) C.C. 2058, 2061. 
 
 (5) Young V. Midland Ry. Co., 19 O. A.R. per Osier J. A. at p. 275. 
 
1 
 
 Eminknt Domain. 
 
 i^ 
 
 and any claim or encumbrance upon the lands is converted into 
 a claim upon ilie compensation, for the amount of which alone 
 the company is responsible, saving its recourse against the ])er- 
 son wrongfully receiving the same, (i) So an hyjjolhecary ac- 
 tion would not lie against the company m such case, but merely 
 a personal action for the amount of the compensation. (2) 
 
 In the Provinces where the principles of the Knglish law 
 prevail, the above reasoning would probably not apply : the 
 position of the mortgagor and mortgagee being so radically differ- 
 rent, (3) and the mode of enforcing the rights and remedies of the 
 mortgagee so dissimilar. In Ontario it has been recently held, 
 that where a railway company had fixed and settled the amount 
 of compensation to be paid to the mortgagor of certain lands 
 taken by the company,, the mortgagees were entitled to a manda- 
 mus to compel the company to arbitrate as to the compensation 
 payable to ihem in respect of the land mortgaged to them ; inas- 
 much as the mortgagor could only deal with his own equity of 
 redemption, and did not represent his mortgagees, and was not 
 included in the enumeration of persons who, under sec. 13 of R. * 
 
 S. O., chap. 170, are enabled to sell or convey lands to the com- 
 pany. (^4) 
 
 11. After the deposit of the plan, and after notice has been Agreement 
 given in the newspapers as already mentioned, (5) ten days ^y"'M'>op- 
 having elapsed, (6) the railway company may apply to the after deposit 
 owners of lands, or persons empowered to sell, or persons inter- of plan, 
 ested in lands which may suffer damage from the exercise of the 
 powers of the railway, for the purpose of acquiring their lands, or 
 selthng the compensation to be paid for the value of the [noperty. 
 or damages. (7) 
 
 I'ii. If an agreement cannot be come to, \\\€ extent of land L.aiul th.u 
 which can bo taken from a proprietor without his consent is limited '"^>' ''^' '•'^'^^" 
 to 33 yards in breadth ; except where the railway is raised conscni. 
 
 (1) Sec. 166. 
 
 (2) Brunei v. Montretl & Oltawn Ry. Co., Q. R.. 3 S. C. 445. 
 
 (3) See siijim p. 122. 
 
 U) ^" >e Toronto Belt Line Rv. Co. & Western Can. L,& &.Co.,05 
 C. L.T. 9S; 26O.R us- 
 es) Supra, p. 76. 
 (6) One month, R. S. Q. 7) Sec. 144. 
 
J 44 
 
 Tub; Railway Law ok Canada. 
 
 Extra land, 
 
 ,li 
 
 more than 5 feet higher, or cut more than 5 feet lower than the 
 surface of the land, or where offsets are to be established, (i) or 
 stations, etc., erected, or goods to be delivered, in which cases 
 not more than 150 yards in breadth by 650 in length may be 
 taken. (2) 
 
 13. If any more land is required for the accommodation of 
 the public, or of traffic, or for protection against snowdrifts, an 
 application must be made and a plan submitted to the Minister, 
 
 (3) and on application after notice supported by affidavit that 
 the'land is necessary for the purpose, and no other suitable land 
 can be obtained at such place on reasonable terms, and with less 
 injury to private rights, the Minister may grant the api)]ication, 
 
 (4) and after the deposit of the plan, and tiie giving of the 
 Minister's certificate, the company may proceed to take the extra 
 extent of land, in tiie same manner as any other lands. (5) 
 
 14. I he company, either for the purpose of constructing or 
 repairing its laihvay, or for the purpose of carrying out the 
 requirements of the railway committee, or in the exercise of th'j 
 powers conferred upon it by the railway committee, may enter 
 upon any land which is not more than two hundred yards 
 distant from the centre of the located line of the railway, and 
 may occupy the said land as long as is necessary for the pur- 
 poses aforesaid ; but before entering upon any land for the 
 purposes aforesaid, the company shall, in case tlie consent of 
 the owner is not obtained, pay into the office of one of the 
 Superior Courts of the Province in which the land is situated, 
 such sum, with interest thereon for six months, as is, after two 
 clear days' notice to the owner of the land, or to the person em- 
 powered to convey the same or interested therein, fixed by a 
 judge of any one of such Superior Courts. (6} 
 
 I'ower to take 15. Whenever stone, gravel, earth, sand or water is required 
 
 materials for jq^ ^j^g construction or maintenance of the railway the company 
 construction. . , , ,. , , •,' , . 
 
 mav, if It cannot agree with the owner of the land on which the 
 
 Occupying 
 land for 
 construction 
 purposes. 
 
 (i) Double tracks, R. S. Q. (2) Sec. 103 ; 250 yds., R. S. Q. 
 (3) Sees. 106, 107. (4) Sees. 107-109. 
 
 See Lon., Brighton it South Coast Ry. Co. v. Truman, L. R., 11 App. 
 Cas.45. 
 
 (5) Sees, no, in. (6) Sec. nz. 
 
Kminknt Domain. 
 
 MS 
 
 same are situated for the purchase thereof, cause a land surveyor, 
 or an engineer, to make a ma[) and description of the property 
 so required, and serve a copy thereof, with a notice of arbitra- 
 tion, as in the case of acquiring the roadway ; and such pro- 
 ceedings may be had by the company, either for the riglit to the 
 fee simple in tiie land from which the material is taken, or for 
 the right to take material at any time it thinks necessary, — and 
 the notice of arbitration, if arbitration is resorted to, shall state 
 the interest and powers required, (i) 
 
 10. Whenever any stone, gravel, earth, sand or water is so Power to 
 taken at a distance from the line of the railway, the company "^"'^ .'^'1'^ 
 may lay down the necessary sidings, water pipes or conduits 
 and tracks, over or through any lands intervening between the 
 railway and the land on which such material or water is found, 
 whatever is the distance, and all tlie provisions of the Act, except 
 such as relate to the filing of plans and publication of notices, 
 shall apply, and the powers thereby granted may be used and 
 exercised to obtain the right of way from the raiiw ly to the land 
 on which such materials are situated ; and such right may be 
 acquired for a term of years, or permanently, as the company 
 thinks proper ; and these powers may, at all times, be exercised 
 and used in all respects, after the railway is constructed, for the 
 purpose of repairing and maintaining the railway. (2) 
 
 17. Whenever, for the purpose of securing sufficient land forpower to 
 stations or gravel pits, or for constructing, maintaining and using P"''^'!''^^ 
 the railway, any land may be taken under the compulsory pr()-,,t.,ty where 
 visions of the Act, and by purchasing the whole of any lot or hMur terms 
 parcel of land over which the railway is to run, or of which any [^|',j,j.g{jy 
 part may be taken under those provisions, the company can 
 obtain the same at a more reasonable price or to greater advan- 
 
 (1) Sec. 113. 
 
 Ileldjtlat n judge may gf.Tiit liis warrant to put a company in immediate 
 possession of land from wliicl'. mateiial is recjuired lo he taken for construction 
 purposes Joly r, Moreau, i L. N. 284. 
 
 (2) Sec. 114. 
 
 An injunction lies against a railway company which has taken land without 
 the formalities required by the Act ; and the writ can be taken at the instance 
 of one of the joint proprietors even when the other owner had consented to the 
 possession by the company, iieauharnois Junction Co. t'. Bergevin, 17 R. L. 
 113, Q. B.; Beauharnois Junction Co. z-. Hainauit, 17 R. L. 116, Q. B. 
 
 10 
 
 f- 
 
Procedure in 
 case of (li>-:i- 
 greenient. 
 
 Notice. 
 
 146 
 
 i'nE Railwav Law ov Canada. 
 
 tagc tlian by purchasing ilic roadway line only, or only siu^h 
 part, the company may purchase, hold, use or enjoy the whole of 
 such lot or parcel, and also the right of way thereto, if the same 
 is separated from the railway, and may sell and convey the same 
 or any part thereof, from time to time, as it deems expedient ; 
 hut tiic compulsory provisions of the Act do not apply to the 
 taking of any jiorlion of such lot or parcel not necessary for 
 these purposes, (i) 
 
 18. Any questions which may arise in case of disagreement 
 as to the value of the lands to be acquired, or the damages 
 whicli may be caused by the exercise o;" the powers of the rail- 
 way with regard to any lands, are settled in the following m;inner : 
 
 19. 'I'iie railway company serves a notice upon the inter- 
 ested party, which must contain a description of the lands to 
 be taken, or the powers intended to be exercised by the railway 
 with regard to the lands (describing the lands with regard to 
 which such powers are to be exercised), and a statement of the 
 amount which the company is ready to pay as compensation for 
 such lands, or for such damages, and the name of a person to 
 be appointed as arbitrator (2) of the company, if the offer is not 
 accepted. (3) This notice must be accomjjanied by the certifi- 
 cate of a sworn provincial land surveyor or engineer. The sur- 
 veyor or engineer, as the case may be, must be a disinterested 
 person, and not the arbitrator named in the notice. 
 
 This certificate, signed by the surveyor or engineer, must state 
 that the land is required by the railway, or within the limits of 
 deviation allowed by the Act ; that he knows the land in ques- 
 tion or the amount of damage likely to arise from the exercise of 
 the powers ; and that the amount offered by the company is, in 
 his opinion, a fair compensation for the land and for the damages. 
 (4) This notice, accompanied by the certificate, is served upon 
 the party, either personally or at his domicile. If he is absent 
 from the county or district in which the lands are situated, or is 
 
 (1) Sec. 115. 
 
 (2) A railway company, in serving an expropriation notice, is merely 
 bound to give the name of their arbitrator, without any -ndication as to his 
 residence or occupation. A. & N. W. Ry. Co. v. Dunn, 10 L. N. 26. 
 
 (3) Sec. 146. (4) Sec. 147. 
 
 ,; ■ mi 
 
 i i, 
 
 1 '\ ■• 
 
KmINKNT iJiiMAlN. 
 
 M? 
 
 unknown, or cannot he found, lliccompany applies to a judge, (i) 
 producing tlie cirtificatc and afVidavil of ronicoflicer of the com- 
 pany, establishing tliat llie peison is absent, or after diligent 
 inquiry cannot be fomul, or that it cannot be ascertained wlio 
 the owner is, and iheieupon the judge may order a notice to be 
 inseitid three times durin;; the course of one monih in a news- 
 paper published in the district or county in which the land is 
 situated, or if there is no news])a])er luiblished there, in one 
 jiulilishcd in some adjncent district or county. (2) 
 
 'I'lie notice having thus been served, either personally or by 
 advertisement, the cjjjiosite party is bound to give notice to the 
 company as to whether he accepts or refuses the offer, and if he 
 refuses, lie must give the name of his arbitrator; he must do so 
 within ten days of the service on him of the notice, or within one 
 month after the jiublication of the advertisement ; and if he does 
 not do so within that delay, the company may apply to a judge, 
 who shall upon such application appoint some person to be sole 
 arl)itrator for fixing the compensation. (3) If, on the other hand, 
 the proprietor, or opposite party, as he is called in the Act, 
 names his arbif ..or, then the company's arbitrator ^nd the pro- 
 prietor's arbitrator (as we shall call him hereafter) agree upon a 
 third ; and il they cannot agree, the judge, on application of 
 either party, after six clear days' notice, apjjoints a third arbitra- 
 tor. (4) 
 
 30. These three arbitrators arc thus chosen for the purpose Arbitrators, 
 of fixing the indemnity, or compensation, — as it is called by the 
 Act, — to the i)roprietor of the lands taken or damaged by the 
 railway. (5) 
 
 It is provided by article 407 of the Civil Code of Quebec that 
 no one can be compelled to give up his property, except for 
 public utility and in consideration of a just indemnity previously 
 paid. This principle will be found underlying the constitution 
 of most civilized States, and is one which is fundamental to the 
 liberty of the subject. In this country, where the Legislature is 
 supreme, and is not shackled in the exercise of its will in such 
 matters by any provisions of a written constitution, as in most 
 
 I' 'i 
 
 (i) Sec. 148. 
 (4) Sec. 151. 
 
 (2) Sec. I4g. 
 (5) Sec. 152. 
 
 (3) Sec. 150. 
 
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 148 
 
 Thk Railway Law ok Canada. 
 
 ii 
 
 of the United States, yet, while great |)owers of eminent domain 
 have l)ern given to Railway Companies over the properly of pri- 
 vate individuals, ample provision has been made for their being 
 fully compensated for all loss which they may suffer by the exer- 
 cise of suci) i)owers. (i) And the Act provides the means, 
 through arbitration, by which this compensation is to be ascer- 
 tained and (ktermined. It remains to be considered how this 
 conii)ensaiion is to be arrived at, and what kind of damages may 
 be assessed by the arbitrators, and what persons are eiititled to 
 recover con'pensation under the Act. 
 
 'Ihe three arbitiators, or the sole arbitrator, ila sole arbitrator 
 lias been ajiijoinlcd under the Act, must be sworn before a jus- 
 tice of the Peace, to faithfully and imjiartially discharge their 
 duties ; and proceed to asceriain such compensation in sue h way 
 as they, or he, or a majority of them shall deem best. (2) 'I bus 
 a large discretion is given to the arbitrators as to the manner in 
 which they shall ascertain the comiiensation. 
 
 First Meeiinjj* *<il- Al their first meeting, the arbitrators, or a majority of 
 them, are required by the Act to fix a day on or before which 
 the award shall be made, and it is provided that if the award is 
 not ni ide on or before the day so fixed, or some other day tu 
 which the time for making it has been prolonged, either by con- 
 sent of the parties or by resolution of the arbitrators, then the 
 auK uiit ofiertd by the company by their notice of expropriation 
 shall be the compensation to be paid. (3) 
 
 ( 1 ) .Sec. 92. 
 
 (2) Sec. 152. In Lower Caii.id.i, notaries have power to receive tlie re- 
 jioii of arli.iratois t" t'ivc ceitifuil copies of the oatii of arhitrntois annexed 
 thtreto, and Mich juiwer is spetially reco^jt.ized as lieloni^iiij; to lliem l)y 
 llie Siatiiios 2 Will. IV. cap. 58, and 13 and 14 Vic, cap. 1 14 (.S.C. jiid{,'t. 
 repoiltd 4 L. C. K. 189, Reverted) Koy nnd The Lh.implain vS: Si. 
 Lawrence Ry. Co., 6 L.C.R. 277(1,). H. 1856). 
 
 (3) ^^c- '56- 
 
 An awaid of arbitrators and nmiiilile (oupaileui s, not signified on the 
 parlies intoitsted until after the delay limited by the ngrcenient for the rcnder- 
 inj; of the awaid, i-. null and void, nut\«iihstandin(r such award may have 
 been rendered within the prescribed time. Cliapman <'. Ilodson, 9 L. C. J. 
 112, S. C. 1S64. 
 
 That in consequence of default of service of an award within the delay 
 fixed by law and liy the terms of the compromise, the award was absolutely 
 null and of no effect. Hlanchet v. Charnm, 4 L. C. J. 8 (Q. B. 1842). 
 
 Arbitrators must not only hear tiie parties, but must decide the matter in 
 dispute before the expiration of the rule of reference ; their proceediogs are 
 
Kminent Domain. 
 
 1 49 
 
 22. The arbitrators must examine on oath or solemn aflirma-EKamination 
 tion, the parties, or such witnesses as may appear before them. °^ witnesses 
 Tliey have power to administer the oath or affirmation them- 
 
 otherwise voUl. Gilley :•. Miller, i Step. Dig., p. 104, 5 765, i Rev. de L. 
 510. 
 
 Where the parlies thnnigh their respective .ittorncys consent to extend the 
 time for making an award under a rule of reference, such consent does not 
 uiK-intc as a new submission, Intt is an enl.\r);ement of the time under the rule 
 and a continuation of the extended |)eriod uf the authority «f the arbitrators, 
 and therefore an award made within an extended perioil is .in aw.-ird made 
 imder the rule, and is valid and binding. Oaks ?•. The City of Halifax, 4 S. 
 C. K. 640, C.iss. Di(j. 34 (New Iidit.>. 
 
 According to the Act 4.y44 Que., cap. 43, sec. 9, §§ 2a, " am.ijority of the 
 ai)>itrators at tlie first meeiinj^ after their .ipp>mtment, or the sole arbitrator, 
 shall fix a day on or before which the aw.ml shall Ix; made. An omission 
 to do so will render the award null and void. N, S. Ry Co. ;■. lieaudet et 
 al. ,1 (J. L. R. 239 ct 241, Q. 1;. 
 
 (N. H. — This judgment was taken to the .Supreme Court, where the award 
 was upheld, but on a different point ; the question of fixing a day at the first 
 meeting does not appear to hive i>.'en discu-sed by the Supreme Court. Vide 
 
 II L. N. .^S; '5S- C. R.44) 
 
 The Railway Act does not re(iuire that the award should show on its face 
 that a day has \>een fixed on or Ixifore which the award had to l)e niade, or 
 that it was made within the lime so fixed ; it is suriicient that it should be 
 proveil that as a matter of fact such lime was fixed ami that the award was 
 made within the delay. IJenmng r. The A. & N. W. Ry. Co., M. I,. R., 5 
 S. C. 136. Aflirme<l in appeal M. L. R., 6 Q. H. 385, and Supreme Court, 20 
 .S. C. R. 177. 
 
 I nder Ry. Act 1S79, 42 Vic, cap. 9, where the arbitrators appointed to 
 fix the compensation for a property adjourne<l to a day subsequent to that 
 orij;inally fixed for making the award, without stating in their minutes that 
 such ailjournment was for the purpose of making an award, and at their sub- 
 .st'(|iiriii m-x'tingthe three arbitrators and counsel for the parties weie present, 
 aiiil no objection was made to the regularity of the meeting, such absence of 
 objection «as helil to constitute a tacit ratification of the proceedings up to 
 th.Tt time. O. & Q. Ry. Co. :■. Cure, etc., de St. Anne, M. L. R., 7 {>. 
 li. no. 
 
 Cause rcferreil al iiisi /•rim, a.;d verdict taken for plaintiff sulyect lo a refer- 
 ence, award to l)e nude l)y a certain day, with power to the arbitrators to 
 enlarge the time; they did enla'-ye it once, but no award was m.ide, and after 
 that day was passed, defend.Tnt's aiioiney was asked by plaintilT's attorney 
 to consent to a furth--r enlargement, and declined, -o application had been 
 made to the arbitrators. The Court held they could do nothing more than 
 set aside the vei<lict. Moulson v. Eyre, 5 U. C. (J. H. 470. 
 
 A cause was referred, the award to be made before ist July, with leave to 
 the arl)itrator to enlarge, but no verdict was taken. He enlarged until 
 August 2nd, and after hearing the evidence he adjourned to the 4lh, to enable 
 defendants to procure their witnesses. 
 
 Neither party attended again, or took any steps to procure a further en- 
 largement, and plaintiff gave notice of trial. Defendants pleaded that the order 
 of reference was yet in force, but the plaintiff went on and took a verdict, de- 
 fendants not appealing. 
 
 Held, that defendants, if they desired the reference to continue, should have 
 applied for an enlargement before the verdict, and that by omitting to do so 
 they had waived their right ; but under the circumstances the verdict was set 
 
 i, 
 
 II 
 
, 
 
 
 M 
 
 It, 
 
 m 
 
 } 
 
 I 
 
 «5o 
 
 TiiK Railway Law of Canada. 
 
 selves, (i) It will be observed here, that the .Act does not give 
 
 aside without coils upon afTuLivit of merits. Miller ;■. Hogg, 2 I'. K. 
 (Ont ) 299. 
 
 WIioic ;i submisi-ijn is that an .-xward shall Ix: delivered by ;i certain day, if 
 it l)e.rMdy for delivery by that day it is sufiicieiil. (Jalbrailli r: Wiilker, K.T., 
 2 Vi't.Onl Digest, p. 138. 
 
 After expiration of tile time limited, arbitrators cannot, without (even if they 
 can with) the ctnsent and concurrence of IkjIIi parlies to the submission, 
 make a binding award. Ruthven :■. Ruiliven, S U. C. <J. li. 12. 
 
 A verbal consent to an enlargement o( the time for making an aw.ud is 
 sufficient under C. L. V . Act, § 171. Jones f. Pientice, 2 Can. L.J. N. S. 
 
 205. 
 
 When there has been an agreement l)et ween two j>arties giving po wer to 
 a third, within a certain time, an award on a matter of ditVerence between 
 them, if the award is not m.ide within the specified time, but one of the parties 
 not knowing that fact lakes it up and pays the charge for it, his doing so will 
 not amount to a waiver uf the condition as to lime, contained in the agree- 
 ment. 
 
 {'luien: whether Liking up an award known to have been made after the 
 limited lime would amount to an .admission that the arbitrators' authoiity had 
 not expired. Earl of D.unKy :. London, Chathnni \, l)over Ky. Co.. L. 
 K., 2 11. L. 43. 
 
 (I) Sec. 155. 
 
 An awaril is iH)t null l)ecauje the witnesses have not been legally -.worn. 
 Tiemhlay v 'riembl.iy, 3 L. C. U. 482 (.S. C. 185 ;). 
 
 In an aciii 11 lnought upon an award of aibiliators, the defendant may 
 Contest the validity of the report which does not set forth that the witnesses 
 were luaid, l)y alleging tli.al the arbitrators retuse<l to hear the witnesses, .aid 
 such difendanl will be allowed lo prove such refusal. Ostell it [osoph, 9 
 L. C. K. 440. (J. 15. (1857). 
 
 An awaid of arbitrators under a rule of Court will not be set aside nil a 
 motion (sui)porled by the al'lidavil of the defendant), on the ground that the 
 award was not accompanied by satisfactory evidence that the trustees or tjieir 
 witnesses were legally sworn ; it appearing that the oath was admini-.lered 
 to the parties and tiieir witnesses by one of the arbilralois. l)aly i: Liiii- 
 ningham, 6 L. C. J. 242, S. C. 1862. 
 
 A report of aibitratois will l)e set aside and annulltd on motion, when it 
 appears that a material witness gave evidence before. the arbitrators without 
 having l)een legally sworn. U'Connell v, Frigon, 9 L. C. J. 173 (.S. C. 
 1865). 
 
 An award I hat does not state that the parties had been lieaid Sefore the 
 sole r.ibitialor, or hail an opportunity lo urge iheir respective pr(.tention>. was 
 held to Ik; defective, and was rejected on motion. l'"armer r. .McNeil, i 
 L. N. 220 ; 22 L. C. J. 76, 1878. 
 
 Where ail)itrator> appointed In value a i)iopeity luoceeded upon an 
 erroneous basis in law, and refused to admit the best evider.ce of value, an 
 interested paiiy may ob'ain a writ of maitdiiiniis against the arbitrators to 
 romjHjl them to admit the evidence. Jones v. Laurent, 8 L. N. 341 ; M. L. 
 K., I S. C. 4.18, 1885- 
 
 .See .S. E. Ky. Co. r. Gouvrement, 15 K. L. 25S (Q 1{. 1887;. 
 
 The fiict that the arliitiators and the witnesses were sworn may be estab- 
 lished by the declar.aiion in the award itself, setting forth that they were 
 sworn, — more particularly where no objection was made at the time by the 
 arbitrator who represen'ed the jiailv objecting lo the valitlity of the award. 
 Mills c. Tlie A. & N. W. Ry. Co., M. L. R., 4 S. C. 303. 
 
 
Eminent Domain. 
 
 »5« 
 
 any power to arbitrators, or to the parties, to summon v/itncsses 
 or to compel witnesses to attend before the arbitrators ; it is 
 only those witnesses who voluntarily appear before them whom 
 they must examine. 
 
 The evidence of the witnesses is required to be taken in 
 writing as depositions, and the arbitrators arc required, on 
 the request of either party, to transmit the depositions of 
 the witnesses, with all papers and exhibits referred to and 
 connected with the proceedings, except the award itself, to the 
 clerk of the court, (i) Under the Quebec Act, and under the 
 Railway Act anterior to the one now in force, there was no such 
 provision as this j it was not required that the evider.cc of wit- 
 nesses should be taken in writing, nor that the arbitrators should 
 transmit any papers or notes of evidence to the court. 
 
 There may be a seeming contradiction between the i)rovisions 
 of section 152, giving the arbitrators power to ascertain the 
 compensation in such way as they may deem best, and tliose of 
 155, which require them 10 examine the parties and witnesses 
 under oath. The language of section 152, so far as referred to, 
 is identical with the language of the corresponding section in the 
 Act preceding the one now in force, and in adding section 155, 
 which was put in for the purpose of bringing before the court, 
 upon an appeal from the award, the evidence taken, the effect of 
 the two sections was apparently not considered ; but we must 
 construe them to mean that while the arbitrators must take the 
 evidence of the parlies, if offered, and the evidence of any wit- 
 nesses produced before thein, they shall, with the assistance of 
 such evidence, ascertain the compensation as they may deem 
 best. 
 
 !2J$. It is provided by section 152 that the award of the arbi- ^>^^y_^,,i j-,^j,i 
 trators, or the majority of them, shall be final and conclusive, 
 except as afterwards provided, 
 
 24. This refers to the provisions of section 161, which gives Appeal from 
 an appeal, upon any question of law or fact, to the Superior award. 
 Court, with the proviso that this right of appeal shall not affect 
 the existing law or practice in any Province as to setting aside 
 awards. The questions touching this appeal and the setting 
 aside of awards will be considered later. (2) 
 
 (I) Sec. 155, ss. 2. (2) Post. p. 202. 
 
 i 
 
 • 81 
 t 
 
 > It 
 
'S» 
 
 The Railway Law of Cai^ada. 
 
 il 
 
 Arbitrators 
 must net al 
 meeting;. 
 
 V;xancy 
 
 among 
 
 arl>itrators. 
 
 Disqualifica- 
 tion of 
 ar)>itraiors. 
 
 125. The award of the arbitrators cannot he made, nor can 
 any offici.il act be done by a majority, except a-t a meeting of 
 which each of the arbitrators has received at least twx» clear days' 
 notice, oi lo which some meeting at which the absent arljiVixntor 
 had been jjresent liad been adjourned. No notice is required 
 l>y the Act to be given to cither of the parlies of any meeting of 
 the arbitrators ; the notice to the arbitrators appointed by the 
 l)arty is held to be siiriicient. (i) 
 
 *^(i. If any vacancy should occur amongst the arbitrators 
 named by tiie parties before the award is rendered, by reason of 
 the death of either of them, or by reason of one of them refusing 
 ur failing to act, within a reasonable time, another arbitrator 
 may be appointed by either of the parties in place of his 
 arbitrator; (2) or if it is the office of the sole arbitrator or 
 the third arbitrator which is rendered vacant, by the above 
 mentioned causes, or through disqualification, his place is 
 supplied either by agreement between the two arbitrators as to a 
 tliird arbitrator, or by a person named by the judge, as provided 
 in the case of original appointment. And no recommencement 
 or repetition of the previous proceedings is required. (3) It has 
 been held, under this section, that the judge has no power to 
 appoint an arbitrator for either party, or to replace the arbitra- 
 tor of either party who has resigned. (4' 
 
 27. As to the disqualification of arbiir.;tors, it is provided by 
 section 159, that the person named as valuator or sole arbitrator 
 shall not be disqualified, unless he is personally interested in the 
 amount of the compensation, even though he is professionally 
 ciTiploycd by cither party, has previously expressed an opinion 
 as to the amount of the compensation, or even though he is 
 related to the proprietor or to any shareholder in the com- 
 pany. And it has been held that the fact that the third 
 arbitrator represented the company, after the award in other 
 similar proceedings, forms no legal ground of disqualification. 
 (S) No objection to the sole arbitrator, or to the third 
 arbitrator appointed by a judge, can be inade after his ap- 
 
 (I) Sec. 152. (2) Sec. 157. (3) Ibid. 
 
 (4) Ont. & Que. Ry. Co. v. Latour, M.L.R.,4S.C. 84 (S.C. Que. 1888). 
 
 (5) Benning :/. A. & N.W. Ry. Co., M.L.R., 5 S.C. 136 & 6 QB. 385. 
 
Kminknt Domain. 
 
 •S3 
 
 pointment; and any cause of disqualification must be urged 
 before the judge at the time of the application for appointment, 
 and the question is there and then decided summarily by the 
 judge, (i) Should the disqualification be pronounced, anotiier 
 person may be appointed by a judge upon application of either 
 party. (2) As to the arbitrators appointed by the parties, any 
 cause of disqualification must be urged before the appointment 
 of the third arbitrator ; and the judge determines the question 
 summarily oti the application of either party after two days' 
 notice to the other. (3) This section does not provide what 
 shall or shall not be valid grounds of disqualification of an arbi- 
 trator appointed by the parties, as sec. 159 does in the case of an 
 arbitrator api)ointcd by the judge. But the ])rovisions of that sec- 
 tion should ij/of/hri a\}\)\y. It has been held that the rendering 
 of services, as a notary, to one of the parties would not disqua- 
 lify such notary from acting as arbitrator for such party ; (4) 
 and in the Supreme Court, that, as the evidence showed that the 
 arbitrator was not in the continuous employ of the parties ex|)ro- 
 l)riated, but merely acted for them, from time to time, in his 
 professional capacity as a notary, and not in any other capacity, 
 he was not disqualified. (5) 
 
 The party expropriated cannot object to the arbitrator named 
 by the company, on the ground of his relationship to the sur- 
 veyor whose rerlificale accompanied the offer made by the 
 company, nor on the ground of alleged inexperience. (6) 
 
 In case of the disipialification of an arbitrator appointed by 
 either party, the parly who i)roposed the disqualified arbitrator 
 shall be held not to have appointed an arbitrator, (7) and tlie 
 consequence would appear to be that the arbitration should be 
 procee<led with by a sole arbitrator appointed by the judge on the 
 api)lication of the company. (8) The Act might be clearer on 
 this point ; but there is certainly no provision for the a|)point- 
 ment by the pa:ty of an arbitrator to replace one disqualified, the 
 
 (2) .Sec 157. 
 
 (3) Sec. 160. 
 
 (I) .Si-c. 159. 
 
 (4) The Noilii Shore Ry. Co. r. Les Ursuliiies de Qu^ljec, Ramsay's 
 Digest 60 (Q. II. Que. 1884). 
 
 (5) Cassels Dig., p -,6 (S C. of C, stii March, 1885). 
 
 (6) Benning f. A. & N. VV. Ry. C'.., M L. R., 5 S. C. 136. .iivl 6 Q. 
 B. 385. 
 
 (7) Sec. iCo. (8) Sec. 150. 
 
 'I 
 
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 I ' I 
 I 1 1 
 
 I 
 
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 m- 
 
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 If-' 
 
 »54 
 
 I'nE Railway Law of Canada. 
 
 Ailiitiator 
 
 )uiW III lie 
 
 ^iiiilcil ill 
 
 mnkiiii; 
 
 valuations 
 
 IncifasLiI 
 value to 
 ri-niaindcr 
 land' 
 
 only |)rovision for thus filling a vacancy being in the case of tiie 
 death or failure to act of one or other of the arbitrators named 
 by the parties, (i) 
 
 '' *iH. We sli.-ill now consider on what grounds a;? to compen- 
 sation the arbitrators are to base their award. 
 
 The arbitrators, in fixing the compensation to be paid to a jjro- 
 prietor any part of whose land has been taken by the company, 
 are bound to consider both the value of the land taken and the 
 damages which may l)e caused to the remainder of the property 
 by the exercise of the powers of the railway. (2) 
 
 *^J). 'Ihcy are bound to take into consideration the increased 
 
 ^^f value that may be given to the remainder of any land, a portion 
 of which is taken by the road, by reason ol the ])assage of tlw 
 railway through or over the same, or of the construction of the 
 railway, ar.d ore bound to set off this increased value, if any, 
 against any inconvenience, loss or damage that may be sustainec 
 by reason of the company taking possession of and using the pro- 
 perty. (3) 'I'his provision of the Act would appear at first sight 
 to be almost a contradiction in terms, for if loss or damage is sus- 
 tained on account of the company using a portion of the property, 
 it is hard to see how the remainder so damaged could be 
 increased in value; but the intention of the .^ctis to provide for 
 a case wh<:re, though the proprietor may suffer a certain amount 
 of inconvenience and loss, for instance by the severance of one 
 portion of his farm from another, yet the remainder of his land 
 may be increased in actual market value by reason of the railway 
 being constructed there. In such a case the increased value is 
 set off against the loss and inconvenience. 
 
 (1) Sec. 157. 
 
 (2) Sets. 144, 146, 152. Tlie amount .iwaideil for ijic right of way fur a 
 railway company is compensation iiniK-r sees, 146, 147, 152 of The Kaiiway 
 Act. 51 Vic, cap. 29. not only for the land taken l)y the railway, Init also for 
 tlie (himages hkely to lie occa-ioneil lo the proprietor lUnin^ the construction 
 of tlie railway. Kvans r. .\. & N. W. Ry. Co., M. I,. K.,f^ .S.C. 493. Rail- 
 way Companies have the rijjht under 'i'lie Railway Act to fell and remove 
 trees which stand within si.\ rods of the railway, and the damage which may 
 tesult from tlie exercise o( this riijht forms pait ol the damajjcs to l>e covered 
 by the compensation awarded lo ihe person wliose land is expropriate I, and 
 he has no action to recover any .idditional amount for the value of trees wiiliin 
 this limit which mav l)e cut down and removed l>y tlo miiway company. — 
 (ML) 
 
 (3) Sec. 15 V 
 
 I' 
 
Eminent Domain. 
 
 »S5 
 
 It has been held in the United States tliat this increase in 
 value must be a s|>ecial benefit or increase peculiar to the prop- 
 erty in question, and not a general increase in value common to 
 all the properties in the neighborhood, (i) It is often the 
 case that the construction of a railway in a particular Io< ality 
 will increase the value of land generally within a certain radius, 
 and this increase, it has been held, cannot he set o(T against 
 the loss or damage caused to the projierly of any particular 
 proprietor ; (2) but, under the language of our Act, it would 
 seem as if such increase in value could be set o({ and must 
 be set off by the arbitrators. The language is general, cover- 
 ing all incfease in value that may be given to any lands 
 through or over which the railway will pass, by reason oftlio pas- 
 sage of the railway, or by reason of the construction of the rail- 
 way. Of course, particular properties might be especially bene- 
 fited or increased in value by the construction of the railway, 
 that is, by the works in connection with its building, which might 
 have a beneficial effect upon the property; as, for instance, giving 
 the land better drainage; but the passage of the railway could 
 not benefit one particular property without bincfiiing and 
 increasing in value those in its immediate neighborhood, in a 
 greater or less proportion; and, therefore, under the language of 
 the Act, which requires the arbitrators to set off the increased 
 value caused by the passage of the railway, it appears to be 
 impossible to say that they must not take into consideration a 
 general increase of value benefiting properties in general in the 
 vicinity of the road. It would indeed be inequitable to hold that 
 while the construction and passage of a railway through or over 
 a properly might largely increase its value, yet tiie railway com- 
 pany would be compelled to pay damag.-s for the inconvenience 
 caused to the proprietor, without any consideration being taken 
 of the increase in value to his land. In other words, the proprie- 
 tor would not only benefit by the increased value of his ])ro- 
 
 
 > * 
 
 'I 
 
 (1) I^wis, Eminent Domain, ij 471 ; Mill.', i//. 152, 153. 
 
 (2) Ibid; and see Belts r\ Willinnisburf'h, 15 liaib. 255; and as to wh.it 
 are and are not special benttits, see Siiatliick ''. .Stoneiiani llrancii R. I\. Co., 
 6 Allen (Mass.) 115 ; Pitts-buigii & I-nke liric Ky. Co. -: F'obinson, 95 I'a. St. 
 426 ; Washburn S. Nlilwaukce i*t L. W. \\. K. Co.. 59 Wis. 3C4 ; ^Iinn. Cen- 
 tral R. K. Co. ;'. Macnaniara, 13 Minn. 468 ; Paine f. Woods, 108 Mass. 
 
 160; Childs -■. New Haven & Nurthnnipton K. K. Co., 133 Mas*. 253. 
 
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 Tmk Railway Law ok Canada. 
 
 l)L'rt\ , in common wi'.h his neighbors, whose lands were not taken, 
 and wlio yet might suffer inconvenience from the passage of the 
 railway for which tliey could not recover indemnity, but he 
 would also receive indemnity for the particular inconvenience or 
 loss which he might suffer. 
 
 It frcfjuently ha|)pens that while the expro|)riated |>arty may 
 suffer damages through the inconvenience he is put to by the 
 passage of the railway through his land, yet the remainder of his 
 land is increased in value, along with the properties in the vicinity, 
 by the mere presence of the railway. In the case of Jii-nni/i); 
 V. 77/,' Atlantic <r North West Railway Company, (i) the 
 Court of Appeals in Quebec, confirming the decision of the 
 Superior Court, held that such increase of value might be taken 
 into consideration and set off agninstthe damages. 
 
 This case was taken to the Supreme Court, where the judgment 
 wascijnfirmed. {i) In that Court, though, the point was not spe- 
 cially dwelt upon ; the Court held that the arbitrators had acted 
 in good faith and fairness in considering the value of the property 
 before the railway i>assed through it and its value after the rail- 
 way had been constructed, and upheld the award. 
 
 In Ontario, one of the judges of the Court of Appeals there has 
 held, ill a case o{ James v. The Ontario «f* Quebec Railway 
 Co., (3 ) that what was intended by a similar section in a pre- 
 vious Act (4) is a direct and peculiar benefit accruing to the par- 
 ticular land in question, and not the general benefit to all land 
 owners resulting from the construction of the railway. This may 
 be looked upon as an obiter dictuniy it having been unne- 
 cessary for the decision of the particular rase; and the other 
 judges refused to jtass upon the point, the Chief Justice (Hagar- 
 ty, C. J.) saying that the question involved the consideration of 
 several decisions of Ontario C'ourts, and that he would prefer to 
 leave it open till it should arise. (5) In a previous Ontario case, 
 (6) tiie principle had been recognized that when the act pro- 
 posed to be done gives increased value to the land, such 
 increased value must be allowed. The dictum of Judge Burton 
 
 (I) M. L. R., 6Q. H. 385. 
 
 (3) 15 O. A.R.I. 
 
 (5) 15 O. A. R. at p. 13. 
 
 (6) In re Can. Southern Ry. Co & Noi vail, 41 U. C. Q. B. 195 
 
 (2) 20 S. C. R. 177. 
 
 (4) R. S. C, cap. 109, sec 8, par 21. 
 
 i «1 
 
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F.MINKNT I)<)MAIN. 
 
 '57 
 
 in the Janus case may have heen inthienccd liy the opinion 
 which lie Mcms tu have held, that the increase in vaUic might he 
 set off against the value of the land taken, as well as against the 
 diiniages. (i) This opinion could not be sustained under bee. 
 15^ ol the piesent Act, which distinctly says that the increased 
 value is to he set off against " liie inconvenience, hiss or dam 
 age" that may be suffered. And though the same opinion is 
 expressed by Mr. Lewis in his woik on Kminent Domain, (2) 
 it is ably combatted by Mr. Mills, (,0 who says that the fairest 
 rule is to set off the benefits against disadvantages, only allowing 
 the owner to recover any excess of disadvantages over benefits ; 
 but not allowing the excess of benfits to reduce the claim fir the 
 actual value of the land and materials taken. If the increased 
 value could be set off against the land taken, it would be unjust, 
 as Mr. Lewis argues (4) that one person shou'd be obliged to 
 l)ay for general advantages by a contribution of land, while his 
 neighbor, whose property is not taken, enjoys the same advan- 
 tages without price. Hut where, as under our Act, there is no 
 contribution of land, the full value of the land taken being paid 
 by the railway company, (5) there could be no injustice in net- 
 ting off, against the damages suffered by ihe propiietor, the 
 increased value of the remainder of his lands, even though such 
 incVtase in value were a general one and common to the lands in 
 the neighborhood. 
 
 This question has been considered in two cases in the Kxche- 
 quer Court arising under the provisions of the Government Rail- 
 ways Act, 1 88 1. (6) 
 
 Sec. 16 of that Act reads as follows : 
 
 " The arbitrators shall consider the advantage as well as the dis- 
 advantage of any railway, as respects the land or real estate of 
 any person through which the same passes, or to which it is con- 
 tiguous, or as regards any claim for compensation for damages 
 caused thereby ; and the arbitrators shall, in assessing the value 
 of any land or property taken for the purposes ot any railway, or 
 in estimating the amount of damages to be paid bv the depart- 
 
 (I) 150. A. K.atp. 3. 
 
 (3) Mills' Eminent Domain, § 158. 
 
 (5) Post p. 160. 
 
 (2) p. 606. 
 
 (4) Lewis, §471. 
 
 (6) 44 Vic, cap. 25, 
 
 It 
 
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 Inn Ram. WAV I,a\v hk Canada. 
 
 Ml 
 
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 I 
 
 »5 
 
 incnt to any |icrs()ii. take into consideration tlic advantages ac- 
 crucd or likely to accrue to surli perhon or his estate as well as 
 tlie injury or damages occasioned by sik ii work." 
 
 Comnunling on tliishcctioii, Mr. Justice llurbridge, in the case 
 of 'J he Queen \ Carriar, s.iid : (i) " I'lie language of this pro- 
 vision is ap|)arenily large enough to inchide not only the special 
 and direct benefits arising from the position of a jjroperty on the 
 line (if a railway, luit also the general benefit not arising ihere- 
 froMi, but from the facilities and advantages (aused by the rail- 
 way which affect all the estates in the neighborhood equally, and 
 which are sha-ed in < onunon with such estates. I apprehend, 
 however, that the narrower is the true construction of the provi- 
 sion, anil thai the advantages accrued or likely to accrue should 
 be limited to those which are sjiecial and dirict, (2) and, in a 
 case I'ke ilie one under consideration, to such as arise from 
 increased (onvenieiices for carrying on business, because of the 
 opportuniiy of connecting the property with the railway by tracks 
 and sidings." And, in a .subse(pient case oi Painl v. 'J/ic Queen, 
 the same learned judge exj)ressed himself as follows : (3) *' It is 
 not denied thai the property as a whole is benefited by the con- 
 struction of the railway. On this point the witnesses, S])eaking 
 generally, agree. IJut it is said that the advantages accruing 
 therefrom are common, at least, to all the owners of lots in the 
 town of (luernsey, and therefore ought not to be considered for 
 the purjiose of cutting down tlit damages to which the claimant 
 would otherwise be eniitled. It is true, I think, that the enhance- 
 ment in value resulting from the construction and proposed 
 operation of the railway is common to all the property in the 
 town, but such benefits may, nevertheless, fall within the rule as 
 to special, as contra-distinguished from general, advantages. (4) 
 Here, again, I think that the unity of the i stale should be regard- 
 ed. The claim.int is tlic founder of the town. He still owns or 
 is interested in more than two-thirds of the lots into which he has 
 divided it. The Government makes it the terminus ol the Cape 
 Ureton Railway, and constructs, within its limits, stations, freighc- 
 
 (1) 2 Excluj. Kep. at pp. 45-6, 
 
 (2) Quoliin; Sutherland on Damages, Vol. Ill, pp. 452-3-4. 
 
 (3) 2 Excheq Kep at pp. 155-6. 
 
 (4) SutherKiml on Uamr.(jes, Vol. III., p. 454. 
 
 Sffi 
 
Kminent Domain. 
 
 •59 
 
 sheds, roimd-housts, wharves and nil the works usually found at 
 a terminus. That certainly is an advanta^'c, and I think a spe- 
 cial advantaj^c to the claimant and to the |)ro])crty. If the Act 
 to which I have referred does not apply to .s . !i a case, it would, 
 1 think, be dilhcult to suggest a case to which It would apply." 
 
 This last judgment was confirmed on .Appeal to the Sui)reme 
 Court. (I) 
 
 In both these cases, it will be observed, the judge in liie 
 I'.xchequer Court allowed the set-off of advantages special to the 
 property, but was of the opinion that if the advantages had been 
 general (which it was held they were not) then no set-off would 
 be allowed. 'I'his latter opinion, which was hardly necessary for 
 the decision of the cac as the set-off was allowed, would be sup- 
 portable on the argument of Mr. Lewis above refer- ed to, (?) 
 inasmuch as the section of the Act cited appears to contem- 
 plate the setoff of advantages against the value of the land, and 
 therefore the i)ariy expropriated would be in the position of 
 l)aying for these advantages by a contribution of land. For 
 the arbitrators are directed, in assessing " the value of the land " 
 or the damages to be paid, to take into consideration the advan- 
 tages accrued, or likely to accrue, as well as the injury or damage. 
 
 However, the learned judge in the Exchequer Court seems to 
 have construed this clause, (3) as allowing a set-off only against 
 damages. If this construction be correct and api)licable to the 
 Railway Act, then these decisions conflict with ihat of Bcfining v. 
 The A. <f- N. W, Ry. Co. (4) already referred to. 
 
 In view of these conflicting decisions, and until we have a final 
 holding by the Supreme Couit, the true interpretation to be 
 placed upon this section of The Railway Act may be said to be 
 doubtful. 
 
 In the event of its being allowed, the increased vabie must be 
 set off against any damage which may be caused to the jiroperty, 
 and not against the value of the land. (5) For instance, should 
 the arbitrators find there was no damage, loss or inconvenience 
 10 the property caused by the railway, and that the proprietor 
 
 (I) 18S. C. R. 718 I (2) Supra p. 157. 
 
 (3) 2 Exchq. I'ep. at p. 47 and at pp. 155-6. 
 
 (4) M. L. R.,6 Q. B. 385 ; 20 S. C. R. 177. 
 
 (5) Sec. 153, and see Mills Eminent Domain, § 158. 
 
 \ 
 
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 The Railway Law ok Canada. 
 
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 II 
 
 was only entitled to the actual value of the land taken, they 
 would not be justified in setting off any increase in value in the 
 remainder of the land against the value fixed for the land taken 
 itself. It has been authoritatively held, that the true method of 
 fixing the compensation is to take the value of the whole pro- 
 perty as it was at the time of the deposit of the plan, for that is 
 the date with reference to vhirh the compensation is to he fixed, 
 and ascertain thj value of the remainder of the land, after ti:c 
 passage of the railway, and the difference is the compensation to 
 be paid to the i)roprictor. (i) Tiiis seems to be an eminently 
 fiiir and equitable method of ascertaining the compensation, and 
 immediately does away with the many difficult questions which 
 have arisen as to the different grounds of damage which nwy be 
 considered by the arbitrators in fixing the compensation. 
 
 Take the instance of a farm of too acres. If tiie arbitrator; 
 can fairly say that this farm was worth $io,coo at the time of the 
 deposit of the plan, and that, the railway company having taken 
 two acres in superficies out of it, the remainder is only worth 
 $9,400, they at once arrive at a fair compensation to the proprie- 
 tor, by taking the difference of $600, or whatever difference they 
 may find to exist in the value of the farm. This principle, how- 
 ever, is subject to one qualification, namely, that they must 
 always pay the proprietor the actual value of the land taken. (2) 
 It might happen that the construction of tlie railway would in- 
 crease the value of the remainderof the propeity, even to such an 
 extent that the remaining portion would be worth more than the 
 whole property as it originally stood, yet the arbitrators must 
 award the proprietor the full value of the piece of land taken,but 
 in such a case they would not be authorized to give him anything 
 for damages resulting from inconvenience, etc. If this rule, with 
 the qu ilification mentioned, were generally adopted, it would 
 avoid the difficulty under section 153 as to the setting off of the 
 increased value ; for the arbitrators would simply look at the 
 difference in value between the whole property as it originally 
 stood, and the remainder of it after being mutilated by the rail- 
 way company. (3) 
 
 (I) Henninjj .-. A. &: N. \V. Ry. Co., 20 S. C K. 177 ; The Queen v. 
 Carrier, 2 lixcli. Rep. at pp. 44-45; O"^'- & Q"^' ^Y- Co. v. Taylor, 6. 
 O R. 348 ; James v.Oik Q. Ry. Co., 12 O. R. 624 ; 15 Out. A. R. I j Par- 
 adisz'. Ihe Queen, I Kxch. Rep., per Taschereau J., at pp. 22223. 
 
 (2) Supra, p. 157. (3) O. & Q. Ry. Co. y. Taylor, 6 O. R. at p. 348. 
 
E.MiNKNT Domain. 
 
 i6i 
 
 '!! 
 
 In England ihcre is no provision in the Imperial Ads similar 
 to that contained in sec, 153 of our Act, nor any provision 
 allowing benefits or advantages to be set-ofT against the value of 
 the land or damages. In the case of Senior v. The Metropolitan 
 Riiihuay, (i) such a set off was claimed, but refused by the court, 
 on the ground that the value of the land must be paid for, irres- 
 pective of any benefit that might accrue to the remainder by tiie 
 construction of the railway. It was thus put by Wilde B. : (2) 
 " I desire to protest against the idea that in assessing compen- 
 " sation a railway company can claim a set-off by reason of a 
 " benefit their works may have done the neighborhood. No 
 " doubt a railway does improve a r.eighborhood, and everybody 
 " is entitled to the advantage of that improvement ; but if any 
 " individual has a portion of his land taken, he is entitled to be 
 " paid for it." This is in accord with the principle above stated, 
 that in any event the value of the land taken must be paid ; but 
 is not applicable to a case where it is sought to set off the en- 
 hanced value of the remaining land against damages under our 
 Act. 
 
 30. In arriving at their award, the arbitrators have the right I'^"i|s 
 to take into consideration, in the language of the Act, " the i"- air"cted\y 
 " convenience, loss or damage that may be suffered or ■sustained the constmc- 
 " by reason of the company taking possession of or using the 'aUwa v 
 " lands." (3) 
 
 In England, statutory compensation is given to the owner 
 of lands "injuriously affected by the construction of the rail- 
 way," to use the language of the English Act. (4) And ii 
 has bee.i held by the Privy Council, in The Corporation of Park 
 dale v. West, (5) that the Consolidated Ry. Act of 1879 places 
 
 (2) Ibid, at p. 230. 
 (4) 8 Vic, Cap. 20, sees. 6 and 16. 
 
 (I) 32 L. J. Ex. (N. S.)22S. 
 
 (3) Sec. 153. 
 
 (5) 12 App. Las. 602. 
 
 By 46 Vic, ch. 45, provision was made for the construction of a subway 
 as a means of crossing certain railways entering Toronto, part of which had 
 to be constructed within the city, and within the municipality of Parkdale ; 
 the city and village could not agree upon terms, so the latter united with 
 the railways in ^: .aining an order-in council under 46 Vic, cap. 24, author- 
 izing the companies to execute the work, and by agreement the village 
 authorities agreed to do the work for the railway company. 
 
 In an action against the village by proprietors in the city and village on 
 
 II 
 
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 The Railway Law of Canada. 
 
 It* 
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 on the same footing, as far as expropriation proceedings are con- 
 cerned, the taking of land and the interference with rights over 
 land ; and inchidcs jjrovisions for compensation in respect of land 
 injuriously affected though not actually taken ; and that the pay- 
 ment of compensation by the railway company is a condition pre- 
 cedent to its right of interfering with the possession of land or 
 tlie rights of individuals. This case was followed by that of fiofi 
 V. 'J'/ic A.S. Ry. Co., (i) where, under the Quebec Railway Act 
 of i8So, the Privy Council held that an owner of land which is 
 
 nccoiiiit of dnina},'!.' cniisiil to tlicir proinTtii'S by the mode of executing; the 
 work, \vlieivl>y llicir .access to .i street was interfereil with ; 
 
 Hi 111, iiver>int,' jiidynieiit of Court lielow, tli.it the work was not done liy 
 tin- imiiiiii|iality under the sjieeial Act, nor merely as agent of the railway 
 coinpaiiies, and the niiinici|ialily was liable as a wronijdoer. West v. The 
 C'oriioralioii of the Viliaije of I'arkdale, 12 S.C.K. 250. 
 
 Ill the I'rivy I oiineil : 
 
 Held, that iiii Older of the railway committee under sec. 4 of the Donii- 
 ni'in Act, 46 Vic, cap. 24, does not of itself, and ajiart from the jirovisions of 
 law thereby made ajiplicab''- to the case of land required for the ])ro]K'rcar- 
 ryinj^ out of the rei|iiircments of the railway committee, authorize or em- 
 ])ower the railway company on whom the order is made, to take any j)erson's 
 land, or to interfere with any person's right. 
 
 Held, that such provisi(jns of law include- all the jirovisions contained in 
 the Consolidated Kailuay Act, 1S79, under the headings of " Plans and Sur- 
 veys,"' and '• Lands and their Valuation," which are a|>plical)le to the case ; 
 the takiiii,' of land and the inteiference with rights over land beini^' jilaced 
 on the same fontiiu; in that Act. 
 
 Where a railway com])any, acting under an order of the railway commit- 
 tee, <li<l not dejiosit a plan or book of reference relating to the alterations 
 requireil by such order. 
 
 jleld, that it was not entitled to commence opeiations. 
 
 Held, further, that under the Act of I879, the payment of compensation 
 by the railway comjiany is a condition precedent to its right of interfering 
 with tlie ]>ossession of land or the rights of individunls. 
 
 (DistinguishiiiL; Jones ;'. Stanstead Ky. Co., L. 1\., 4 P.C. gS) Corj). 
 of I'arkdale r. \Vest, 12 A]ip. Cas. 6o2. 
 
 (i) i2 L.N. 395; 14 App. Cas. 612. 
 
 Helil, that a railway company, authorized by Parliament to construct its 
 line along the bank of a navigable river, isnot liable in damage to neighbor- 
 ing proprietors, wlujse access to the liver has thus been cut off. North Shore 
 Ry. Co. V. Pion, 4 Dorian Q. H. K. 358 ; 9 L. N. 218 ; 12 Q, L. K. 205, 
 
 Hut Held, l.y Supreme Court (reversing), that a riparian proprietor and 
 owner on a navii,able river is entitled to damages against a railway company, 
 although no land is taken from him, for the obstruction and interruptecl 
 access between his property and the navigable waters of the river, viz., for 
 the injury and diminution in value thereby occasioned to his property ; and 
 that the railway company in the present case, not liaving complied with 
 the provisions of 43-44 Vic, cap. 43, sec. 7, §3 and 5, Que., the appellant's 
 
Eminent Domain. 
 
 163 
 
 injuriously affected by the tonstruction of the railway is entitled 
 to statutory compensation ; and in default of the company pro- 
 ceeding, in the manner provided by the Act, to have the damage 
 
 iTiiu'dy by action at law was ailmissil)lo. Pii)ii r'. Noiili Slioic Railway 
 Co.. 14 S.C.R. 677. 
 
 And Ik-ltl, liy liic I'livy Council, thai the lesiiondcnts, as riparian |iro- 
 priflors, liad tlie same rif^lUs i)frt(7,'f el soitUa^ they would have had if the 
 river had nut been navigalile ; that the obstruction to sueli rii,'hts without 
 parliamentary authority was an actionable wronj,', but the substituted opeii- 
 int;s were no answer to a elaim for indemnity; tiiere is no distiiie ion in 
 ]irineiide between riparian rif^hts on the banks of navijjable or tidal rivers 
 and on those non naviijable. In the former ease, however, there mu>t be no 
 interference with the |Hiblie rij,dit of navij^ation. and in order to j^ive ri-e to 
 ri)iarian rights the land must be in actual daily contact with the stream 
 laterally or vertically. Lyon r. 1' ishmongers Co., followed, I Appeal Cas. 
 662, and held a|)|dicable to every country in which the same {general law 
 (if riparian rii;hl:, prevails indess excluded by sonic positive general rule 
 or binding authority of the lex loci. 
 
 Held, that uniler the (Jiiebec Consolidation Railway Act, l88o, see. 9, no 
 authority is given to a railway coni|)any to exercise its powers in consti'uct- 
 ing its works, in such a manner as to inflict substantial damage ujion land 
 nut taken wiihout conipensalion. 
 
 Held, further, that as the a])pellants had not taken the necessary steps 
 under the Act of 18S0, to ve:-t in them the power to exercise the right or do 
 the things for which eomitensation would have been ilue under the Act, an 
 action by the respondent would lie for damages, anil tlie removal of the ol)- 
 struclion ; in which if the obstruction were not oidered to lie removed, 
 damages as for a permanent injury to the land couhl be recovered. North 
 Shore Ry. Co. v. Pion, L.R., 14 App. Cas. 612. 
 
 Damage to rights of hou.se owners, such as droit d'ttrcls to streets, does 
 not constitute e\)>ropriati<m and gives ikj right to preliminary indemnity. 
 In Fraii'A', the dejireciation caused to a house by stopping one end of the 
 street on which it front'- is not an interference with a servitude ; nor stand- 
 ing alone such direct and immediate damage as will give title to indemnity ; 
 and .tenihle, the law of the Province of (Quebec is identical. Mayor of Mont- 
 real it l)riimmond,22 L.C.J. I,(^.U. ; L.R., -. A])p, Cas. 384; Ramsay's 
 Digest 1004. 
 
 'I'he h.iuls in (|uestion were lots 3, \ and 6 Clinton avenue, in the town of 
 Niagara Tails. 'Hie defendants had taken, for the ])ur|)Oses of their railway, 
 a small jiart of lot 3, and the )>laintiri' claimed damages for the injury caused 
 Id that lot and lots 4 and 6, by lowering the street in front of these lots, so 
 as to enable the railway to be carried over the highway, and which was 
 done in such a manner as to obstruct the jilaintilFs access ti< his land. 
 
 Held, alfirming the judgment of the Court below ; I. That upon the evi- 
 dence the sum jiaiil for the jiart of lot No. 3 actually taken included an;- 
 damage to that lot but not to lots Nos. 4 and 6. 
 
 2. that the claim as to lots 4 and 6 was in respect of land injuriously 
 aflected by the exercise of the |)owers of the railway company within t'-e 
 meaning of the Con. Ry. Act, 1879, sec. 9, § 10 and 12 D. 
 
 Held, that under that Act or under the Con. Stat, of Can., cap. 66, as ap- 
 lilied to these defendants by their sjiecial Act, compensation was recover- 
 able. 
 
 Held, also, that there was nothing to exonerate the defendants in the 
 fact that they had obtained leave from the municipality for doing as they 
 
 l'^ 
 
 H*" 
 

 I'l" 
 
 Si 
 
 m 
 
 |:fr4 The Kailway Law of Canada. 
 
 assessed, lie may claim it by action. In both tluse cases it is to 
 
 had (lone, niid that tlic tdiiit coiilil ctuiii'tl an aihitiatiim to wliidi llie 
 plaintill was tntiilt-il iimk-r thf Act. l^owc-n .'.Can. Soulliein Ry. Co.. 14 
 O. A. U. 1. 
 
 To maintain an action of damages against a railway company, litcaii^c nf 
 the running of the railway over a higliway adjoining plaintilf's lesidcnce, and, 
 as alleged, ot stiurting his ingicfs and egress, it is necestary for the plaintifl to 
 prove that the immediate access to tlie premises was aficiltd, and that he 
 sustained damage particular to himself, and differing in kind from, and beyond 
 that of, the rest of the public. 
 
 'I'liat the municijial authorities, laving tolerated the laying and using of the 
 railway as a public highway in the municipality, may be thereby estopped from 
 urging that the usf; of the same was unauthoiized by them, lirodeur r. '1 he 
 Corporation of Koxton Falls and The S.li, Ry. Co., 11 l< L. 447 (18S2). 
 
 Where appellant, the owner of several houses bordering on a street, thiorgh 
 whicli a railway was .luthorized to pass both by statute and by resolution of 
 the city council, sued the corporation for damages suffered on account of the 
 construction and working of the radway ; it was held that the appellant h.id 
 no right of .iction against the corporation, for if the corporation gave tlie 
 authorization in compliance with the statute, there was complete justificatioi; 
 of the Acts complained of ; the corporation, moreover, only gave the company 
 lilierty to choose one of the streets, and although the council w ere .subsequently 
 informed of the choice made, and asked to take steps to legalize the line, ihey 
 took no further action. 
 
 The recourse of the appellant, if any be had, was not against the corpora 
 tion but against the owners of the railway. Lefebvre t. The City of Quebec,, 
 Supreme Court, Cassel's Digest 177 (New Edit.). 
 
 Where the Legislature had granted a corporation leave to construct a 
 bridge over a river in the Province of Quebtc, it was held, that in order to 
 recover damages for such construction it is necessary to prove that it obstruct, 
 ed the riparian proprietor's free ingress and egress to the liver, and that in 
 respect of obstruction to navigation, actual and special damage must be 
 proved. Bell f. Corporation of Quebec, L. R., 5 AppCas. 84, 7 Q.L.R. 103, 
 Privy Council. 
 
 The privilege of erecting a toll bridge over a river dots not confer any right 
 of property in the waters of that river, which are part of the public domain. 
 
 The proprietor of such a bridge cannot demand the demolition of works 
 erected upon a public river under authority of law, such as a bridge built by a 
 ladway company to cross passengers and carri.iges, even if used to convay 
 thein for gain or hire, contrary to a clause in his charter, his recourse being 
 limited to the indemnity prescribed in his chatter, and in default of payment 
 thereof, a prohibition of all tiansport over the railway bridge will be granted. 
 Jones ;•. The Stunstead, etc., Ry. Co., 17 L. C. R. 81. 
 
 But Held, by the Judicial Commitiee of the Privy Council, that assuming 
 the plaintiff, by xirtue of his special Act, to be entitled to compensation, yet 
 his action failed inasmuch as giving notice to treat for compensation was 
 not a condition precedent to the company's right to exercise their powers, 
 an(t theiefore that the company were not wrongdoers. L.R., 4 P.C. App.98. 
 
 Corporations in using the power conferred on them of expropriating are 
 bound to use diligence, and consequently they are liable for the damages 
 suffered by the expropriated proprietor by reason of unnecessary delays. 
 Judah r. T he City of Montreal, 3 R.C. 470, Q.B. 
 
 Held, affirming the judgment of Gwynne, J., 43 U. C. R. 522, that when 
 a municipality raises a highway in such manner as to cut oflT ingress and egress 
 to and from property abutting thereon, the owners of such property are entitled 
 
 '< V 
 
 'i-. 
 
Emin'knt Domain. 
 
 '65 
 
 be observed that the damnge complained of was caused by the 
 
 t'l coiiipcnsatiim under 36 Vic, c. 48. s, 373 (Ont ). Ye.iiiwns r. The Cor- 
 jioinlion of Co. of Wellinutun, 4 O. A. U. ^oi. 
 
 Tr.istees were pissesseil of a mill, 90 yards frum an important th iroiiirlifare 
 in (.ilasgow, liaviii<; parallel accesse-; on the level from l\v.> si Ics of the mill to 
 the thoroiiqlifare. A railway company by their special Act cut otTentircly one 
 access, suhsiitiilini; tlieref.)r a deviated ro.idover a bridjje with steep gradients, 
 and the other access they diverted and made it less convenient, liut none of the 
 i)perations were carrie I on cv iidreno the premises. The railway company's 
 jiowers were contained in the 6tli section of the Scotch Railway Cl.i'.'ses Act 
 of 1S45 Csjmilar to the English Act), and which provided thit '' the railway 
 company shall make to the owners and occ ipiers of and all other parties in- 
 terested in, any lands taken, or injuriously affected by the construction there jf, 
 full com pensa' ion for the value of the lands s) taken, and for all damages 
 sustained by such owners, etc." 
 
 Held, affirming the decision of the Court l)elovv, that though an agreement 
 entered into between the parties when the bdl was before Pa liament, 
 whereby the trustees were induced towithdr.iw their opposition, provided their 
 claim to compensation (should their lands be injuriously alTected) should not 
 be birred by reason oCthe company not taking any of that land, gave no right 
 to compensation, the trustees were entitled to it under the Railways and Lands 
 Clauses Con. (.Scotland) Acts 1845, I*'^'" ^-onX Selbnurne, L. C. The 
 obstruction of access to a private property by a public road need not be ex 
 oJitrso, but it nuist be proximate and not remote or indefinite to entitle the 
 owner of that pro|)erty to compensation fur the loss of it — and it is a question 
 whether a mere change of gradient alone would be a proper subject for com- 
 pensation. The ( Caledonian Riilway Co. »;. Walker's Trustees, L. R., 7 A.C. 
 
 259- 
 
 A's predecessor in title obtained a feu contract from a su) erior, a build- 
 in;; lot situate at the south side of an estate. The plan of the estate shewed it 
 divided into feuing lots with streets running east and west, and one street 24 
 feet wide connecting the turnpike road on the north to another road on the 
 south, and forming one side of A's feu. The lot was di posed "together 
 with free ish and entry tliereto by the streets laid down on the said plan, but 
 in so far only as the same may be opened and not altered in virtue of the 
 reserved power after mentioned.'' The reserved power was that "the 
 ■superior should have full j ower and liberty to vary and alter said plan or 
 streets or roads thereon, in so far as regards the ground not already fenced." 
 
 A railway company took a piece of land running fiom east to west through 
 the estate, and in executing their works cut off all access for carriages by the 
 street marked on the plan running from south to north 24 feet wide. 
 
 None of A's land was taken. A claimed compensation in respect that his 
 lands were injuriously affected under sec. 6 of the Railw.iy Clauses (ikotland) 
 Act 1845. 
 
 Held, that A was not entitled to compensation, because: i, the access in 
 ipiestion had not been opened in the sense meant in hi-i feu contract before 
 the statutory notice ; and 2, there was no obligation in the feu contract cast 
 upon the superior to pursue his feuing scheme and give the feuers at some 
 future time access along any of the roads or stieets marked on the plan. Also, 
 when there is an implied obligation by the feuer to prosecute his feuing 
 scheme for the lienefit of the feuers, they have a vested interest de fiitiiro in 
 the roads and streets shewn on the feuing plan sufficient to sustain a claim 
 for comjiensalion under the Railway Clauses Consolidation (Scotland) Act 
 1S45. Fleniing &' Wife i'. 'I'he Newport Railway Co., L. R., 8 Ai)p. Cas. 265. 
 
 See London, Brighton & South Coast Ry. Co. r. Truman, L. K , 1 1 App. 
 Cas. 45. 
 
 
 i !1 
 
 
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 II 
 
i66 
 
 The Railway Law ok Canada. 
 
 ^ * 
 ■1 
 
 Vii 
 
 
 .3: 
 
 I 
 
 l^-^ ,11 
 
 construction of the work. In t!:e one case the owner's access to 
 a street was cut off, in the other liis access to a river. 
 
 In the instances cited, however, their Lordships were rardul 
 to confine the rigiu to recover damages to those cases where 
 lands were injuriously affected by the construction of the railway 
 as distinct from its operation. That is to say, the lands, or some 
 real right appertaining to iht; lands, must be affected by the 
 actual construction of the work, — such, for instanc % as by the 
 making of a cutting or the construction of an em' .nkment ob- 
 structing the proprietor's access and egress to and from his \no- 
 perty ; (i) or by the interruption of view, or the deprivation of 
 light and air and access to a building. (2) Hut damages resulting 
 from tile operation of the road would not be admitted where no 
 land is taken or used and no real right affected; — such as the 
 inconvenience which an adjoining proprietor might suffer fiom 
 the noise and smoke and vibration cauied by the passing of 
 trains. Thc^e are inconveniences which aie necessarily conse- 
 (]uent upon the txercise of the powers conferred upon the railway 
 by Statute, and which individuals, upon whose lands or real 
 rights the railway company does not encroach, must suffer in 
 common with the general public, in a greater or less degree, as 
 their properly may be more or less distant from the railway. (3) 
 The provisions of the English Act are not so different from 
 ours, but that the decision of the Courts there would have great 
 weight in this country ; (4) and several decisions have been giver* 
 there which should be specially referred to in this connection. 
 
 In the case of Brand v. T/ie Hatnnifrsmith Ry. Co., (5) 
 it was held by the House of Lords that a proprietor, no 
 
 (1) Sec cases cited in Note (1), p. 162. 
 
 (2) Kngle i\ Cliarinjj Cross Ky. Co., L. K., 2 C. P., p. 63S. 
 
 (3) i^^K- *"• Chester (Stockpoit case), 33 L. J. Q. B. 251 ; Rex i\ Tease, 
 4 U. & Ad. 30 ; Vaugan i\ TatT Vale Ry. Co., 5 H. & N. 679; IJraml c. 
 Hammersmith Ry. Co., I.. R., 4 H. L. 171 ; Lon. & Brighton Ry. Co. i-. 
 Ttuman, li A. C. 45 ; MacWillie v. North Shore Ry.Co.,M. L. R., 5 Q. Ji. 
 per Cinion J., at p. 130; Jones r. Stanttead Ry. Co., L. R., 4 P. C. App, 9S; 
 Muii r. Caled. Ry. Co , 17 R. 48, ser. 1026; Ally, Genl. y. Metropolitan 
 Tr.imways Co. (C. A. 1893), 9 K. 59S. 
 
 (4) N. S. Ry. Co. V. lion, 14 App. Cas. 612, supra p. 163 ; Wood t. A. & 
 N. W. Ry. Co., Q. R., 2 Q. B. at pp. 344 and 354 ; Paradis y. The Qi;een, i 
 Exch. Kep. per 'laschereau J., at p. 193 ; Trimble v. Hill, 5 App. Cas. 342 ; 
 City Bank v. Barrow, 5 App. Cas. 664. 
 
 (S) 1 . R., 4H. I . 171 ; Mipra, note 3. 
 
E.MiNKNT Domain. 
 
 ,67 
 
 ^ 
 
 part of whose land was taken for the purposes of the raihvay, 
 could not recover statutory compensation for damage or annoy- 
 ance arising from vibration, and the smoke and noise of passing 
 trains, even though the value of his property had been actually 
 depreciated thereby ; — and that no statutory compensation 
 having been piovided for such damages, there was no right of 
 action at common law to recover them. This principle, of course, 
 would only be ajjplicd where there was no fault or negligence 
 on the part'of the company in the operation and construction of its 
 railway. As has already been pointed out, where the company 
 acts in the o|)eration of its railway within the powers given to it by 
 the Legislature, and without negligence, they are not liable for any 
 loss or damage whicli they may occasion thereby to the general 
 public, unless statutory compensation is expressly provided, (i) 
 In the case oi Jones v. The Stanstead Raihvay, f z) wiiich was a 
 railway constructed under 14 and 15 Vic, cap. 51 [containing a 
 clause (sec. 4) corresponding to sec. 92 of the present Railway 
 Act], the plaintiff claimed damages for loss of tolls on a bridge 
 which he had constructed across the Richelieu River at St. Jolnis, 
 P.Q., consequent upon the building of a bridge by the railway 
 company a short distance from his own. There the Privy Coun- 
 cil held that the damage sought to be recovered was too remote, 
 not being "a necessary, patent, and obvious consequence of the 
 construction of the work." But in the case of fion v. T/ie North 
 Shore Raihvay Company, (3) already referred to, their Lordships 
 said that the case of Jones v. The Stanstead Ry. Co. might 
 well have been decided upon the same principle as Brand 
 V. The Hammersmith Ry. Co., viz., that this was a damage 
 resulting to a proprietor, no part of whose land was 
 taken, because of the use of the railway under the powers given 
 to the company by Parliament. In the case of The City oj 
 GTasgowRy. Co. v. Hunier^{^\) where a part of a proprie- 
 tor's land was taken by the railway, and another section 
 of the road passed in rear of the same property, over a street or 
 lane, the House of Lords held that anticipated damage from the 
 
 (1) Supra p. 166. 
 
 (2) 4 P. C. An,). I2D ; 
 
 (3) 14 App. Cas, 612. 
 
 8 Moore N. S. 312. 
 (4) L. 
 
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 R., 2 S. C. App. 78. 
 
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 1 68 
 
 'I'lii: Kaii.wav I-a\v ok Canada. 
 
 noise and smoke of the trains passing over tlic section of the 
 railway in roar of the projjerty would not a| i)car to be a proper 
 subject of c()mi)cnsaii()n under the Siatiitc. J'.iii in a later case 
 of llic Z>///r of Buiclcuch v. The Mctvopo'itan Board of Works, 
 (i) Lord ( liclnisford, who had sal also in the case of Tke City 
 of G/tisgoii' Jiv. Co. V. Jftitittr, said that he saw no reason 
 why compensation might not he given for actual deterior- 
 ation in the value of property occasioned by the smoke, noise 
 and vibration of ])assing trains, where a portion of the land so 
 affected had been taken by the railway company ; but this was 
 not a case of the taking of land by a railway company, but of 
 the taking of land for the construction of the Thames embank- 
 ment, and a highway thereon, by the Metropolitan Board of 
 Works ; and his I-ordship was not quite accurate in stating that 
 in both the cases of Brand v. The }fammersmith liy. 
 Co. and Ihc City of Glasgow Ry. Co. v. Hunter, no portion of 
 the proprietor's land had been taken ; for in the latter case, 
 according to the report, there was certainly a portion of the 
 land taken by the railway company, though the damage com- 
 l)lained of was not caused by the ojieration of the railway 
 upon the i)art taken, but upon a section of the same road 
 l)assing in rear of the projjerty. However, in the case of 
 Essex V. 7 he Local Board of Acton, (2) the House of Lords, in 
 1889, definitively and finally decided that where part of land is 
 taken, the proprietor is entitled to compensation for depreciation 
 of the remaining land, caused by the use to which the land taken 
 is put ; although proprietors of adjoining lands, of which no por- 
 tion is taken, cannot recover. Though this was not the case of 
 a railway, and though a distinction may be drawn between a 
 railway ^nd other works permitted by legislative authority, (3") 
 
 (I) L. K., 5 II. I,. 418. (2) 14 App. C. 15.5. 
 
 (3) "The Railway Acls, Ircateil as a well-known and recognized class of 
 legislation, were expressly and carefully distinguished from the ]ierniissive 
 character of ilie legislation which your Lordships wtre then construing 
 (referringto Metropolitan Distiict Asylum v. Hill, 6 .\pp. Cas, 193). Broadly 
 slated, the distinction taken amounted to thi=, that a smallpox hospital might 
 be built and maintained if it could be done without creating a nuisance, 
 whereas the Railway Acls were assumed to establish thj proposition that the 
 railway might he made and used whether a nuisance were created or not." 
 Per Lord Ilalsbury, L. C, in Lon.& Brighton Ry. Co. ?'. Truman, ii App, 
 Cas. at p. S3 ; and ser Shelfer i\ City of I^ndon Electric Light Co., 12 R. 96, 
 
 •i'-tt 
 
E.MiNtNT Domain. 
 
 169 
 
 we may take it that it is now practically settled law, tliat a pro- 
 prietor, a portion of whose land is taken by the railway, is en- 
 titled to comi)ensation for actual deterioration in value of the 
 remainder of ihc property mused by the oi)eration of the rail- 
 way, (i) This has now been decided by the Quebec Court of 
 apjieals in Wood \. A. d- JV. ly. Ry. Co. (2) 
 
 In that case, after a careful review of the jurisprudence in 
 England, it was held that it is now the settled iurisprudence of 
 the English courts that in cases where a portion of the pro- 
 l)rietor's land has actually been taken for railway purposes, so as 
 to compel or authorize the adoption of the statutory provisions 
 for determination of the amount of compensation, the jury are 
 authorized to take into consideration an estimation of damages 
 or depreciation resulting from the use of the railway as distin- 
 guished from its construction. And Hall J., in rendeiing the 
 judgment of the Court, after pointing out that the principles laid 
 down by both the old and modern French authors are in the 
 same sense, but that in France they have no general Railway Act 
 corresponding with ours, and iheir method of determming com- 
 pensation before the "Conseils de Prefecture" differs so much 
 from our own that no precise authorities can be cited from that 
 jurisprudence, said that a comparison of the English and Can- 
 adian Acts would show no intended diminution or curtailment of 
 the liability of the railway company toward the land owner under 
 the Canadian Act as compared with the English one; and that 
 in his opinion that liability is if anything enlarged under section 
 89 of our Act, which says, that for all damages caused by the 
 Act in the exercise of the powers conferred upon them, they shall 
 make full compensation, in the manner herein provided. (3) 
 The learned judge went on say that whatever may be the liability 
 of a railway company for damages to an adjoining proprietor, 
 none of whose land has been taken, there can be no doubt that 
 where land or real rights have been actually expropriated the 
 company is bound to compensate the proprietor, not only for the 
 land actually taken but for the direct damage to his remaining 
 
 (1) See Lon, Tilbury & South End Ry. Co. 
 L. R., 24 Q. B. 326. 
 
 (2) Que. R., 2 Q. H. 335. 
 
 (3) Que. R., 2 (^ B., at pp. 352-354. 
 
 Gower's Walks Schools, 
 
 1 .4 
 
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 The Railway Law of Canada. 
 
 land, icsulling eillier from construction and severance, or from 
 tlic use of the railway line and the operation of llie traffic ser- 
 vice; and llie learned judge went on to say : "This is but the 
 " adoption of the general i)rincij)le that no one can use his own 
 " property or rights to the detriment of his neighbor, even if the 
 "exercise of his right be under the authority of an Act of I'arlia- 
 " mcnt." (i) This last proposition is directly contrnry to the 
 jirincipies laid down by the English courts in the cases already 
 referred to, and now firmly established by the very recent cases 
 of The London v. JJiii^/iton Jiy. Co. v. Truman^ {2) and 'I'/ic 
 Attorney General v. Lonifon 'Jranmmys Co., (3) to which refer- 
 ence has already been made. That is to say, if the learned 
 judge meant by this proi)osition that a railway company, in the 
 projjer exercise of its statutory poweis, could not, without being 
 liable in damages, use its property or rights to the detriment of a 
 neighboring proprietor, none of whose land o" real rights had 
 been exi)ropriated by the railway company, 'i he principle seems 
 to be too firmly established in England to admit of doubt, 
 tiiat where the railway company does not expropriate or make 
 use of the land of an adjoining proprietor, and does not interfere 
 with any real right ajjpertaining to such property, the proprietor 
 cannot recover compensation, either under the statutes or the 
 common law, for damages caused by the use or operation of the 
 railway, on the plain ground that what the legislature has 
 declared to be a right the courts cannot hold to be a wrong. (4) 
 
 I) Q. R., 2 Q. U. at p. 355. (2) II App. Cas. 53. 
 
 (3) (Court of Appeals 1893.) 9 l^- 59^. 
 
 (4) Per Blackburn J. in Hanimersmith Ry. Co. v. Brand, L. K,, 4 H. L. 
 at p. 197 ; .ind see Shelfer v. City of London Electric Light Co., 12 R., per 
 Lord Halshury, at p. lo8; and cases cited in note (3), p. 166. 
 
 The Kailway Clauses Consolidation Act and the Land Clauses Act do 
 not contain any provisions under which a person whose lanil has not been 
 taken for the ]nir))oses of a railway can recover statutory conii)ensation 
 from the railway comi)any in respect of damage or annoyance arisinj; from 
 vil)ration occasioned (witiiout nefjligence) by the passing of trains after the 
 railway is brou^jht into use, even though the value of the jiroperty has been 
 actually depreciated thereby. 
 
 The right of action for such <laniages is taken away. Ilamniersmith, etc. 
 Ky. r. Brand, 1.. R., 4 H. L. 171. 
 
 Though compensation may not be granted to a person annoyed l)y the 
 smoke and vil)ration occasioned by trains passing along a railway constructed 
 under the authority of an Act of Parliament where no i)art of his land 
 had been taken, compensation may be given for deterioration in the value 
 
 1 ,r 
 
Eminen'1 Domain. 
 
 tfr 
 
 
 A careful examination of the v.i.ious sections of our Railway 
 Act would lead one to the conclusion that no compensation is 
 intended to be given, for damages caused by the operation of the 
 railway, to the proprietor of a neighboring proiieriy, where no 
 part of sucli property has been expropriated or interfered with ; 
 but that such compensation would be due to a proprietor, even 
 though no part of his land was taken from him, if the company 
 made any use of any part of his land or interfered with any rt al 
 right appertaining thereto, such, for insiance, as a right of way 
 or passage, (i) 
 
 As already pointed out, section 9a provides that the comi)any 
 shall make compensation in the manner provided by the j^'eneral 
 and the special Act to all i)arties interested for all damage 
 sustained by reason of the exercise of tlicir i)owers ; bul the 
 only manner provided for making such compensation is that con- 
 
 Dccasiuned in a similar inaniKT, where a [lait of lii> laiiil lias liciii taken 
 for the coDslniclion of a work aiitliorized by an Act. 
 
 In tliis ([iieslion of compensation maybe eonsiilered hi , partieiilar and 
 individual use of that in wliieh lie had no proprietary rij,dit, such as llie shore 
 of a tidal river, and where 15 was riparian jiroprietor, liaviii}; a rij;lit to 
 the undisturbed flow of the river aloiij,' the whole froiuaj^e of his projierty, 
 he was entitled to dania{;es for beint; deinived of that rij;ht. l)uke of 
 Buccleuch r. Metropolitan Hoard of Works, L. R., 5 H. I,. 418. 
 
 Where several pieces of fjround owned by the same person are, lhoiif,'h 
 not adjoining, so near to each other and so situated that the possession and 
 control of each (,'ives an enhanced value to all of thoni, they are lands held 
 together within the nieaniiif; of tlic Lands Clauses Consoliilation Act 1845, 
 §§ 49 to 63, so that if one i)iece is com])ulsorily taken and converted to uses 
 which depreciate the value of tlie rest, the owner has a riglit to compensation 
 for the depreciation. Cowper Essex p. The Local Hoard for Acton, L. R., 
 14 Apj). Cas. 153. 
 
 No claim can be made in respect of a damage for which the claimant 
 would not have had an action supposing the Railway Act had never lieen 
 passed. The damage must be done by the construction of the works, and 
 not afterwards when the works have lieen coniideted. 
 
 Held (reversing), that statutory comjiensation cannot be claimed by 
 reason of the noise and smoke of trains, whether jiart of the claimant's land 
 be taken or not, anticijiated damage from the noise an<l smoke of trains does 
 not apjiear to be a |iroper subject of estimate of compensation under the 
 Railway Statutes. 
 
 'the Legislature having given the promoters no power to annoy the occu- 
 piers of neighboring property with smoke, an injury from this cause is not 
 the subject of compensation but a ground of action. A man may have a 
 right of action and a right of indictmeiit where he cannot claim statutory 
 compensation. City of Glasgow Lnion Ry, Co. e. Hunter, L. R., 2 Sc. 
 App. 78. 
 
 (1) Wood ?'. A. & N. W. Ry. Co., Q. R., 2 Q. B. 335. 
 
 If 
 II 
 
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 J 
 
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 m 
 
 i.ff! 
 
 '7-' 
 
 TiiK Rmi.wav I„\\v (11 Canada. 
 
 fi 
 
 t.iined in sections i \(t l<» 17a inclusive, tvhich sections are con- 
 tained HI tliai |)orti()n of the Act headed " Lands and tiicir 
 Valuation." 
 
 Section 144 provides for makin}^ com|)cnsation by agreement, 
 wiijj tlie owners of tlic lands, wliicli may suffer damage from tlic 
 talving of materials or the exercise of any of the powers granted 
 for the railway. IJiit these lands, as has alreaiy been pointed 
 out, are to be sliown ujton the location plan and book of refer- 
 ence of tlie railway. Certainly it would not appear that the 
 company arc bound to show on such plan any land which they 
 did not intend to tike or use or interfere with in some way in 
 llie constniction of the road, 'i'hen the provisions with regard 
 to compulsory expropriation r.-quire that the party to be expro- 
 jiriated shall be served with a notice containing a descript; )n of 
 the lands to be taken, or " of the powers intended to be ixer- 
 cised with regard to any lands, and describing the lands ; " (i) 
 and tlie compensation which the arbitrators are authorized to 
 grant is for the taking of the lands, or the damages caused by 
 the exercise of the company's powers with regard to the lands, 
 as described in this notice. As was said by Lord Chelmsford, 
 in Hamnici smith Ry. Co. v. Jiranif : (2) " To Gay that the use 
 '• of tiic railway after its construction is one of the powers 
 '' vested in the company in regard to the lands, conveys to my 
 " inind no intelligible meaning." 
 
 It can hardly be contended that the railway company could 
 be compelled to give notice to a proprietor of land, which was 
 not in any way touched or interfered with by the construction of 
 the railway, that they intended to exercise with regard to such 
 land the power of running and operating their railway in its 
 vicinity, and that they were willing to pay a certain sum as 
 compensation for the damage which might be caused to his land 
 by the operation of the road, such, for instance, as those caused 
 by the smoke and noise of passing trains. 
 
 It would be impossible, in the first place, to accurately deter- 
 mine at what distance from the railway lands would be inju- 
 riously affected by such causes, and, in the second place, to 
 estimate the extent of the injury and the amount of compensa- 
 tion which should be given in any particular case. 
 
 I) Sec I ;6. 
 
 (2) L. R., 4. II L. 171. 
 
Kminknt Domain. 
 
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 It. 
 
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 le 
 
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 'I'lie public ^(■ncralIy, liaving property wiiliin siglit, ar.d 
 hearing of a railway, must suffer inconvenience, mure or less in 
 degree but il.c same in kind, as tliey may happen to he more or 
 less distant fn m the railway, caused by the smoke and noise of 
 passing trains. Ihit there does not seem to be provided by tl e 
 Act any manner in which such persons should be compensated. 
 And section 153 would seem to jmint in the same direction, inas- 
 much as it refers only to such inconvenience, loss or damage as 
 might be sustained by reason da comj'any taking possession t)f 
 or using lands, 
 
 A reference to section 101 would also seem to confirm this 
 view. There provision is made for compensation in the case of 
 the taking of Indian lands injuriously affected by the construe- 
 lion of the railway, the language of the section being as fol- 
 lows : " When any portion of such lands is taken possession of, 
 " used or occupied by any company, or when the san e is in- 
 " juriously affected by the construction of any railway, compen- 
 " salion shall be made therefor as in other cases." 
 
 It does not seem reasonable to suppose that the legisla- 
 ture intended to make a distinction, as to the compensation to be 
 given, between the case of Indian lands injuriously affected by 
 the railway and any other lar.ds. And as it is jjrovided by that 
 section that in the case of Indian lands compensation shall only 
 be made for lands taken and lands injuriously affected by the 
 " construction "of the railway, and that such compensation should 
 be made therefor " as in other cases," it would seem a fair in- 
 ference that in other cases compensation was intended to be 
 given only where the lands were injuriously affected by the con- 
 struction of the railway, as distinguished from its operation, that 
 is, where no land is actually taken ; unless it can be shown that 
 special piovision is made in other cases for lands injuriously 
 affected by the operation of the railway, and such would not 
 seem to be the case. 
 
 I 4 
 
 81. As to what kind of damage it is within the powers of the Mature of 
 arbitrators to allow in assessing the compensation apart from the dam.iges tluit 
 value of the land taken, it may be said that as a general rule they ^n'^i(j^,e,i i^y 
 may take into consideration any direct, tangible and appreciable arbitrators. 
 injury or damage, particularly affecting the properly in question 
 
 if 
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 li 
 
'74 
 
 'i'liK Railway Law of Canada. 
 
 (;; 
 
 III ii 
 
 ill 
 
 ti- 
 
 which can reasonably be foreseen, (i) As instances, might be 
 mentioned, the injury caused to a farm, or such like ])roperty, by 
 the severance of one portion from another, as where a raihvay 
 crosses a farm jiroperty, separating' the farm buildings from the 
 liouse or from some otlier part of tlie farm, increasing tlie diffi- 
 culties of access frc m one portion of tiie farm to another; and 
 the inconvenience caused by the necessity of crossing the railway 
 with carts, horses and cattle ; and the trouble and loss of time in 
 having to open and closi the gates on each occasion. Again, 
 the manner in which a railway crosses a particular jjroperty 
 may cause loss, as, for instance, if it cuts through the property 
 in a diagonal line, instead of at right angles, thus cutting up 
 fields or lots, and rendering them unavailable or less available 
 for the purposes for which they were intended. 
 
 The danger arising from sudden emerging of trains from 
 a snowshed without warning, having the effect of frightening 
 horses, etc.. is a subject of com]3ensation. (2) Also damage result- 
 ng from an increased risk of fire. (3) So held, where the plain- 
 tiffs were owners of a waterside properly, upoi. which they oper- 
 ated two marine railways. A portion of this property was 
 expropriated for the right of way of a Government raihvay, the 
 latter being situated in such close proximity to the plaintiffs 
 works, that the works, as well as ships in course of repair upon 
 them, would be in danger of taking fire from locomotives when 
 the Government railway was put in operation. In consequence 
 ■ of this increased risk from fire, it was shewn that plaintiffs would 
 have to pay higher rates of insurance upon their works than they 
 had hitherto paid, and that ships might be deterred from using 
 the marine railway. For these causes it was held compensation 
 was properly allowed. (4) But the possible damage to bush 
 land from greater exposure to winds and storms, and the greater 
 liability to injury by fire, by reason of the working of the raihvay, 
 
 (1) Wood 7: A. & N. W. Ky. Co., Q. R., 2 Q. B. 335 ; Lawrence 7\ G. 
 N. W. Ry. Co., 16 Q. B. 643; and see Great Laxey Mining Co. v. Clagis, 
 4 App. Cas. 115. 
 
 (2) Vezinaz;. The Queen, 2 Exch. 11. Confirmed in Supreme Court, 17 
 S. C. R. r. 
 
 (3) Straits of Canseau Marine Ry. Co. v. The Queen, 2 Ex, 113 ; and see 
 Stockport case, 33 L. J. Q. B. 251. 
 
 (4) Straits of Canseau Marine Ry. Co. v. The Queen, 2 Ex. 113. 
 
Eminent Domain. 
 
 '75 
 
 are contingencies too remote to be considered in estimating the 
 amount of compensation where tlicre are no buildings to be 
 endangered, (i) And danger to persons and animals should not 
 be included. (2) 
 
 In assessing damages, regard should be had to the jirospec- 
 tive capabilities of the properly arising from its situation and 
 character. (3) But while the remote ]irobability that land 
 would become available for building purposes upon the extension 
 of the limits of an adjoining town may add something to the 
 value which the property would otherwise have had, compensation 
 should not be based upon any supposed value of the land for 
 building purposes at the time of the expropriation, (4) But held 
 in England, that where agricultural land, which might have 
 become valuable for building, is severed, so as to be useless for 
 building, this depreciation may be taken into consideration. (5) 
 Whtre lands possess a certain value for building purposes at the 
 time of the exproi)riatiop, but that value cannot be ascertained 
 from the actual sale of aity lot or part thereof, the sales of similar 
 and similarly situated properties constitute the best test of such 
 value. (6) 
 
 33. The value of the land to be estimated is the value it has Valoe of 
 
 in the hands of the owner, subject to such restrictions as there ^"".''' '""^ 
 
 , , ,..,,, • 1 , , estimated, 
 
 may exist upon its use, and not the value it will have in the hands 
 
 of the company f.oed from all restrictions. (7) And this value 
 
 must be the value at the time of the expro])riation. (8) Where 
 
 -claimant sought to recover damages in respect of a portion of his 
 
 farm as a gravel pit, but failed to show that it had a value qtioad 
 
 n 
 
 (1) In ;<r Arbitration between Ont. & Que. Ry. Co, and Gen. Taylor, 6 O. 
 U. 338- 
 
 (2) Ke Scott V. Railway Commisrs., 6 Man. 194 ; A. & N. W. Ry. Co. r. 
 Descarie, 21 R. 1 . 194. 
 
 (3) Paint V. The Queen, 2 Ex. R. 149, Confirmed l)y Supreme Court, 18 S. 
 C. R. 718 ; but see Ke Nicholson y. Ry. Commrs., 7 Man. 400. 
 
 (4) Kearney v. Tiie Queen, 2 Ex. 21. Supreme Court, 30th April, 1S89. 
 Cassels Dig. 313. 
 
 (5) Ret;. I'. Hrown, L. R., 2 Q. B. 630. 
 
 (6) Ealconer v. The Queen, 2 Ex. R. 82. 
 
 (7) Stibbing f. Metropolitan Ry. Co., L. R., 6 Q. B. 37 ; Paint, v. 
 The Queen, 2 Ex. R. 149, 
 
 (8) Vezina r. The Queen, 2 Ex. R. 11 ; and see sec. 145 Ry. Act. 
 
 -f- \% 
 
 ■i: 
 
176 
 
 The Railway Law ok Canada. 
 
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 il 
 
 
 i! 
 
 Aoc a.t the time of the taking, the Court declined to assess iis 
 value ollici wise than as farm land, (i) 
 
 Where certain land remaining to the owner was not apjjre- 
 ciubly afTecled in respect of tne value it had to him for the i)ur- 
 poses of occupation, the damages were ascertained and assessed 
 in respect of its depreciation in market value. (2) 
 
 Although tiie claimant has the right to sell his property, 
 and should, therefore, be indemnified in respect of any loss which 
 in consequence of the expropriation he m'ghtmake on such sale, 
 he is not bound to sell, and may reasonably prefer to keep his 
 property for the purposes of his business ; and in that case should 
 be indemnified for any depreciation in its value to him for the 
 purposes for which he has been accustomed, and still desires, to 
 use it. (3) The nature of the title to the land is also a criterion 
 of its value. (4) 
 
 Where the claimant, tor the purpose of effecting a settlement 
 without litigation, had offered to settle his claim for a sum 
 very much below that demanded in his pleading*, the Court, while 
 declining to limit the damages to the amount of such offer, relied 
 upon it as a sufficient ground for not adopting the extravagant 
 estimates made by claimant's witnesse?. (5) 
 
 Where a wharf in course of construction, and materials to 
 be used in completing it, had been taken by the Crown, the 
 Court allowed the claimants a sum representing the value of the 
 wharf as it stood, together with diat of the materials ; and to this 
 amount added a reasonable sum for the superintendence of the 
 work by the builder, who was one of the claimants, for the use 
 of the money advanced, and for the risks incurred by him during 
 the construction thereof, — in other words, a sum to cover a fair 
 profit to the builder on the works so far as completed. (6) 
 
 In assessing damages where land has been expropriated, the 
 unity of the estate must be considered ; and if by the severance 
 of one of several lots, so situated that the possession and control 
 of each give an enhanced value to them all, the remainder is 
 
 (I) Ibid. (2) Ibid. 
 
 (3) Reg. V. Carrier, 2 Ex. R. 36. (4) Ibid. 
 
 (5) Falconer i-. The Queen, 2 Ex. R. 82 ; and see Caruinal v. La Cie. de 
 Ch.de Fer de Beauharnois, 20 R. L. 648. 
 
 (6) Samson v. The Queen, 2 Ex. R. 94. 
 
Emineni Domain. 
 
 177 
 
 depreciated in value, such dt preciation is a substantive ground 
 for compensation, (i) 
 
 It was said by Taschereau J. in Paradis v. The Queen, (2) that 
 it is not merely the depreciation in the actual market value of the 
 land that a claimant has to be indemnified for, it is the depre- 
 ciation in such value as it had to him that should be the basis of 
 compensation. Also, that the valuation of a property appearing 
 upon the municipal assessment roll does not constitute a test of 
 the actual value upon which compensation should be based, 
 where such valuation is made arbitrarily and without consider- 
 ation of the trade carried on upon 'the property or the profits 
 derivable therefrom. 
 
 In a case of expropriation, the clamant is not obliged to prove 
 by costly tests or experiments the mineral contents of his land. 
 (3) Where, however, such tests or experiments have not been 
 resorted to, the Court or jury must find the facts as best it can 
 from the indications and probabilities as disclosed by the evi- 
 dence. (4) 
 
 149- 
 
 (r) Paint v. The Queen, 2 Ex. R. 
 
 (2) I Ex. R. 191. 
 
 (3) Brown v, 'Ihe Commissioners for Railways, 15 App. C.is. 240. 
 
 (4) Rcgina v. McCiirdy, 2 Ex. R. 211. "No company shall, witliout 
 the authority of the Railway Committee, locate the line of its proposed rail- 
 way, or any branch thereof, so as to obstruct or interfere with or injuriously 
 affect the workini; of, or tiie access or adit to, any mine then open or for 
 opening which preparations are, at the time of such location, being lawfully 
 and openly made." Sec. 119. 
 
 The "mines of coal, itonstone and other minerals," which sec. 77 of the 
 Railway Cl.iuses Act 1845 except out of the conveyance of the railw com- 
 pany, and the "mines and minerals '' under the railway, or within tlie specified 
 distance which sec. 78 empowers the owner to give notice of his intention to 
 work, include not only beds and seams of minerals got by underground working, 
 but also such as can only be worked and according to the custom of the district 
 would be properly worked by open or surface oi)erations. 
 
 So Held, by Lords Herschelland Watson (Lord MacNaughton dissenting, and 
 retaining the opinion expressed in Lord Provost of Glasgow v. Farie, 13 
 App. Ca-:. 657J. M d!and Ry. Co. et al. v. Rev. Sir F. L. Robinson, 15 App. 
 Cas. 19. 
 
 That to justify an owner giving such 11 notice, it is not necessary that he 
 should intend to work the minerals himself, but there must be a real and bona 
 fide desire to work either by himself or by his lessees or licensees. Ibid. 
 
 Limestone is a mineral within the meaning of the above sections . Ibid. 
 
 This case raised a question concerning land taken— with portions of miner.1l 
 under it — by the railway company as to the owner's right to compensation in 
 respect of ids inability to get the coal under or near the railway. Lord Gerard 
 was the owner of land near Wigan — having coal and other minerals under it 
 through which the railway ran. The company gave notice to take not only 
 
 12 
 
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 ,7S 
 
 The Railway Law of Canada. 
 
 Finally, in assessing the value of lands taken or injuriously 
 afferted by a public work, the owner should be allowed a liberal 
 not a bare indemnity. 
 
 Access to 3'S. The owner of land fronting upon a highway, whether it 
 
 lundways and jj. ^ ]andway or a waterway, has a right of access to the highway, 
 
 waterways. . ... ,7 . o/> 
 
 and IS entitled to compensation if his access is cut off. (i) So a 
 
 person whose land alnits on the foreshore is entitled to com- 
 
 i" 
 
 W 
 
 m 
 
 surface land Init also the minerals under it, except seams of coal whicli ran 
 under parts of the land, and were not then worked. 1 ord Geraid claimed under 
 these notices to be entitled to receive present compensation in consequence of 
 being bound in law to leave unworked large quantities of coal, either subjacent 
 or adjacent, in order to afford nccesj-ary support to the other strata, and 
 because it was impossib' work it without taking away part of the land and 
 minerals sold to the company, Tl:e effect of this claim would have lieen to 
 make the company pay at once, not only the price of the land taken, but also 
 for all the subjacent and adjacent coal, and the ground of the claim was that 
 tlie company were not only taking the land, but also the minerals under it. 
 It was contended on behalf of Lord Gerard that the railway running through 
 the land, and the company having taken not only the land under the railway, 
 hut the minerals under the land (C.xcept the coal), the owner was unable to 
 work his coal on either side up to or near the railway, because so working 
 would inleifere with the minerals under the railway. The matter had gone to 
 arbitration under the l.ands Clauses Act 1845, and evidence had been received 
 by the arbitrator to support the claims thus set up by Lord Gerard. Tie 
 company had tliereupon obtained a rule ;//Vi, allowing them to revoke heir 
 submission, on the ground that these claims were not maintainable, and th,- 1 
 though, if l-ord Gerard sustained any injury or increased expense in work'ng 
 Ills coa! in conseqi'ence of the railway, he might set up a future clain for 
 compensation, ther kvas no ground for er'ertaining the claims now to enhance 
 tlie price to be paid for the land and minerals. 'I he court thought the conten- 
 tion of Lord Gerard was not well founded, and that his rights were governed 
 by section 77 and the following sections in the KaiUv.ay Clauses Act 1845. 
 Those sections applied not only to cases where no mines or minerals were 
 taken, but in every case in which mines or minerals were taken, and they were 
 applicable to a case where a company had purchased with the land certain 
 subjacent minerals, but had left others to the land owner. There was nothing 
 in the Act to confine it to cases of the purchase of surface land only. The 
 claims not being, tliercfore, maintainable, and the evidence offered not being 
 admissible, the rule giving the railway company leave to revoke the submis- 
 sion would be made absolute with costs, the company undertaking not to revoke 
 unless the aibitrator continued to receive the evidence objected to. Lord 
 Gerard t. 'I'lie London & North Western Railway Co., 'limes Law Rep., 
 Vol. X, p. 657 J confirmed in appeal, i/u'd. Vol. XI , p. 170. 
 
 (1) Ljon r. Fishmongeis Co., I App Cas. 662; Chamberlain f. West 
 End of London & Crystal Palace Ry. Co., 31 1. J. t^. H. 201, 32 L.J. 
 Q. U, 173; Caledonian Uy. Co. v. Walker's Trustees, 7 App. Cas. 259; 
 Duke of Huccleugh ;■. Met. Board of Works, 5 H. L. 418; Pion t. North 
 Shore Ry. Co., 14 App. Cas. 612 j [Corp. of Parkdale r. West, 12 App. 
 Cas. 602. 
 
Eminent Domain. 
 
 179 
 
 pensation if liis access to the sea or a navigable river is cut 
 off. (i) 
 
 And in llie same way tlie right to compensation arises, if by 
 lowering or raising tlie highway the access is imijeded, or 
 additional fences or earthworks become necessary ; (2) also the 
 construction of a railway along the sidewalk contiguous to lands 
 wiieieby access to such lands is interfered with, and the frontage 
 of the property destroyed for the uses for which it is held. (3) 
 
 Where the right, in respect of which the owner claims com- 
 pensation, is a public right, common to himself and the public 
 generally, the following rule may be laid down to determine the 
 right to compensation. AVhere the right is entirely taken away, 
 or so interfered with as to reduce or depreciate the market value 
 of the properly apart from the uses to which any particular owner 
 may put the property, there is a right tu compensation. (4) 
 
 Thus, for instance, if the access to a house is cut off by the 
 blocking up of a road giving access to the house, this is a clear 
 injury to the house as a property. (5) So where a house fronting 
 on a highway is depreciated in value by the narrowing of the 
 road, a right to compensation arises. (6) 
 
 But where, by the construction of the railway,the use of a street 
 as a highway is merely rendered less convenient, v/ith consequent 
 personal inconvenience, or damage to trade, of persons living on 
 the street, the owner or occupants of property abutting on the 
 street are not entitled to compensaiion ; on the ground that the 
 
 (i) A riparian proprietor on a navigable river is entitled to damages 
 against a railway company, for any obstruction to his rights o[ (icrh et sor- 
 tie; and mcli obstruction without I'arliamentary authority is an actionable 
 wrong. Pion 7\ N. S. Ky. Co., 14 /^^P- '-'''^- ^'^ followed ; liigaouette r'. 
 Nortli Shore Ry. Co., 17 S. C. K. 363 ; and see liowen ;■. Can. Soutiiern Ky. 
 Co., 14 O. A. R. I. 
 
 (2) Regina ?■. St. Luke's, L. R., 7 Q. B. 148 ; Moore r. Great S. & W. 
 Ry. Co., 10 Ir. C. L. 46 ; Twohey r. G. S. & W. Ry. Co., 10 Ir. C. L. gS ; 
 Reg. 7\ Eastern Counties Ry. Co., 2 Q. B. 347. 
 
 (3) Reg. 7'. Barry, 2 Ex. 333; ^^g. ''• Malcolm, 2 Ex. 357. 
 
 (4) Metropolitan Board of Worki^fc^loCarthy, L. R., 7 H. L. 243 ; Wad- 
 ham f. N. E. Ry. Co. f 14 Q. B. dI^^, 
 
 1 16 ib. 257. 
 
 (5) Caledonian Ry. Co. -'. Walker's Trustees, 7 App. Cas. 251J. 
 
 (6) Beckett t'. Midland Ry. Co., L. R., 3 C. 1*. 82 ; Metropolitan Board 
 of Works 7'. McCarthy, L. R., 7 H. L. 243 ; Wood 7: Stourbridge Ry. Co., 
 16 C. B., N. S., 222. 
 
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 Thf, Railway I>a\v ok Canada. 
 
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 inconvenience is one which they suffer in common wiih, though 
 to a greater degree than, the public generally. (1) 
 
 A temporary obstiuction of a highway, for the purpose of a 
 public work, does not entitle the owner of property on the high- 
 way to compensation. (2) 
 Oiielicc law 34-. The law of Quebec allows to the owners of houses adjoining 
 and English streets rights over them, which, if not servitudes, are in the nature 
 •■ubiect of servitudes. Such are the rights t/'acces et de sortie des rues 
 
 compaitcl. 0n d'i^outs. 
 
 (I) Brodeur r. Corpn. of Roxton Falls, 11 R. L. 447. 
 
 R. was occu])ier of a public house situated by tlie side of a public foot- 
 way. A company obtained powers under certain Acts of Parliament (with 
 whicli tlie i)rovisions of the Lands Clauses Acts and Railway Clauses Acts 
 were declared to be incorporated) to make a railway. 
 
 Tlie company obstructed streets leadinj; to tliis foot-way so as to make 
 the access to the pul)lic house ii.convenient. Tiie obstructions were not 
 permanent, and after some time the streets were restored to their original 
 condition. 
 
 It was found by the jury that there were no structural damaj^es to the 
 jiremisi^s, but that R. had sustained damage in resjiect of the interruption of 
 his business. 
 
 Held (diss. Lord Westbury), that R. was not entitled under tlie 68th 
 section of the Lands Clauses Act, nor the 6th or the ]6th Sections of the 
 Railway Clauses Act, to receive compensation for injury to his trade conse- 
 (juent upon these obstructions. 
 
 Ricket y. 'I'lie Metropolitan Ry. Co., L. R., 2 U. L. 175. 
 
 Per I Old IVestbury : — At p. 203. " I entirely concur with the doctrine that 
 compensation cannot be claimed by an individual for damage which is sus- 
 tained in common by all the subjects of the realm. Thus, if a public highway 
 be diverted, or crossed on the level, by a railway, the inconveniences of having 
 to wait whiht trains pas-s is common to all the public ; and the benefit which 
 it is considered results to the i)ublic from the railway is the only compen.sation. 
 I'ersons dwelling in the neighborhood may sustain this inconvenience more 
 frequently than the rest of tiie jiublic ; but if the inconvenience is to be re- 
 garded as compensated by the public convenience, it cannot be converted into 
 a ground of compensation by reason of certain persons having to sustain the 
 inconvenience more fiequently than the rest of their fellow-sulijects." 
 
 In order to found a claim to compensation under the 68th section of the 
 Lands Clauses Consolidation Act 1S45, for an interest in land, "injuriously 
 affected,'" there must be an injury and damage not temporary but permanent, 
 peculiarly affecting the house or land itself in whicli the ])erson claiming 
 compensation has an interest. A mere personal inconvenience, obstruction 
 orilamage to a man's trade or the good will of his business will not be suffi- 
 cient, although any one of them might, but for Act of Parliament which 
 authorizes the doing of the thing which causes the injury, have been the 
 subject of an action against the '.erson occasioning it. Chamberlain 7'. The 
 West of London Ry. Co. (2 li. & S. 605-617), and lieckett 7'. The Midland 
 Ry. Co. (L. R., 3 C. P. 82), approved. Ricket -•. The Metropolitan Ry. 
 Co. (L. R., 2 II. L. 175), explained and affirmed. Metropolitan Board of 
 Works !■. McCarthy, L. R., 7 H. L. 243 ; and see Sanche r. C. P. R.Co.. 
 16 R. L. 296. 
 
 (2) Herring ■:•. Metropolitan Board of Woiks, 34 L- J. M. C. 224. 
 
E.MiNKNT Domain. 
 
 tSl 
 
 There is a clear distinction in liie law of Quebec between 
 rights of immediaie access from a man's property to a highway, 
 and the power to complain of a mere obstruction in it. The 
 French law recognizes " droit (faeces et lie sortie " as rights 
 belonging to a house in a street. It is evident that this right of 
 access is different from the right of passage which the owner has 
 in common with the public. 
 
 The right of access to a house is of course essential to its 
 enjoyment ; and if by reason of alterntions in the stieet the 
 owner cannot get into or out of it, or is seriously obstructed in 
 doing so, he can recover indemnity for tiie damage he sustains. 
 (i) But the stopping of a street at one of its ends only does not 
 produce these consequences. (2) 
 
 In Quebec also, a distinction is made between direct damage, 
 which gives the sufferer a right to compensation, and indirect 
 damage which does not. (3) 
 
 There may be i/roit d'acces (t de sortie to and from a river or 
 slre;ini belonging to riparian land, which, if interfered with, 
 would at once give the proprietor a right of action. But this 
 right appears to be confined to what it is expressed to be, the 
 power of getting from the waterway 10 and upon the land (and 
 the converse) in a free and uninterrupted manner. When this 
 right of access is not interfered with, although the navigation of 
 tlie ri^er be somewhat obstructed, the riparian i)roprieior is not 
 entitled to compensation, unless actual and special damages 
 peculiar to himself, and different in kind from those suffered by 
 the public generally, are proved. (4) 
 
 A distinction is thus drawn between tiie right of access from 
 the river to a riparian frontage, and the right of navigation when 
 upon it. When this access is not interrupted, and the waterway 
 of the river is open to the riparian land, the question arises 
 whether the right of action of the riparian proprietor, for a distant 
 obstruction in the river, can be based on higher or other ground 
 than would be that of any one of the public using the river and 
 
 (1) Morrison -■. Mayor of Montreal, 4 L. N. 25 (Q. H. Que. 18S0). 
 
 (2) Mayor of Montreal -■, Drummond, I App. Cas. 406. 
 
 (3) ll'id. 
 
 (4) Bellr'. Corpn. of the City of Quebec, 5 App. Cas. 97-98; and rvV? Uro- 
 deur f. Corpn. of Koxton Falls, li R. L. 447. 
 
l82 
 
 The Railway Law ok (Canada. 
 
 i* 
 
 It 
 
 m 
 
 susiaiiiing special damage. The right of access to the waterway 
 from riparian land is a i)rivatc rigiit which tiie owner of such 
 land enjoys (/loi owner; this rigl't is analogous to the (/roif 
 (i'acccs d de. sortie recognized by the law of (Quebec. Iftlie 
 English law attributes larger rights than these to riparian ]iro- 
 prietors on navigable rivers, it goes further in this direciion than 
 the law of Quebec. But it would not seem to. 
 
 Thus, where the construction of a bridge does not interfere 
 with the riparian proprietor's right of access to the river, it has 
 been held that the latter has no right to compensation, excepting 
 he can prove actual and special damages ])eculiar to himself and 
 not suffered by him in common with the rest of the public, and 
 that the Quebec and the English law in this respect is the same, 
 (i) Whether an obstruction amounts to an interference wiili a 
 riparian i)roprietor's access to his frontage, which is a private 
 right by English as by Quebec law, is a question of fact to be 
 determined by the circumstances of each particular case. (2) 
 
 According to Quebec law, the beds of navigable and floatable 
 rivers are the property of the Crown. (3) The test as to whether 
 a river is navigable or floatable is its possible use for transport 
 in some practical and profitable manner, (4) which would in 
 Quebec include the floating of logs and timber. 
 
 When the right of navigation on a river is connected witli an 
 exclusive access to and from a particular wharf, it assumes a 
 different character. It ceases to be a. right held in common with 
 the rest of the public, for other members of the public have no 
 access to or from the river at the particular place, and it becomes 
 a form of enjoyment of the land and of the river in connection 
 with the land, the disturbance of which may be vindicated in dam- 
 ages by an action, or restrained by an injunction. (5) It was held 
 in Miner v. Gilmour (6) that the rights of riparian proprietors in 
 non-navigable and non-tidal water-course are the same under the 
 English as under the Lower Canada law ; and that by the general 
 law applicable to running streams, every riparian proprietor has a 
 
 (1) Bell r. Corpn. of the City of (Quebec, 5 App. Cas. 85. 
 
 (2) Ibid. 85. (3) C. C. Alt. 400. 
 
 (4) Hell .-. Corpn. of (Quebec, 5 App. Cas. 85. 
 
 (5) The N. S. Ry, Co. v, I'ion. 14 App. Cas. 619. 
 (b) 12 Moore, P.C, 131 (1858). 
 
 leii 
 
Eminent Domain. 
 
 183 
 
 right to wliat may be called the ordinary use of the water flowing 
 past his land, — for instance, to the reasonable use of the water for 
 his domestic purposes, and for his cattle. liut, further, he has a 
 right to the use of it for any i)urpose, or what may be deemed the 
 extraordinary use of it, provided he does not interfere thereby witii 
 the rights of other proprietors either above or below him. I his 
 general principle is, in England, applicable to navigable and tidal 
 rivers saving the right of the public to unobstructed navigation. ( i ) 
 
 The only ground of distinction between a non-navigable river 
 and a navigable or tidal river, forming at high water tiie boundary 
 of riparian iai«i, is that in the case of a non-navigable river the 
 riparian owner is proprietor of the bed of a river ad mcdiinnfilum 
 aqiice, wiiereas, in the case of a navigable river, it belongs to the 
 Crown. The right of a riparian owner to the use of a stream 
 does not depend on the use of the soil of the stream. 
 
 'l"he right to the enjoyment of a natural stream of water on 
 the surface belongs, ex Jure naturce, to the proprietor of the ad- 
 joining lands, as a natural incident to the right to the soil itself, 
 and he is entitled to the benefit of it, as he is to all ihe other 
 natural advantages belonging to the land of which he is the 
 owner. He has the right to have it come to him in its natural 
 state, in flow, quantity, and quality; and to go from him without 
 obstruction upon the same principle that he is entitled to the 
 support of his neighbor's soil for his own in its natural state. (2) 
 
 It is necessary for the existence of a riparian right that the 
 land should be in contact with the flow of the stream, but it is 
 sufficient that this contact should exist daily, in the ordinary and 
 regular course of nature, though it may not continue during the 
 whole of any day. (3) 
 
 Such land should not be valued as if it had no river frontage, 
 or as if tiie owner had no riparian rights. 
 
 The construction of its road by a railway company upon the 
 foreshore of a navigable and tidal river, thereby obstructing by 
 means of an embankment extending along the entire length of 
 plaintiffs land his access to the water, gives him a right of action. 
 
 'IT 
 
 (1) Lyon V. Fishmongers Co , i App. Cas. 683. 
 
 (2) Chassmoie ''. Richards, 7 II. L. Cas. 349. 
 
 (3) Ibid, and Miner t'. Gilmour, 12 Moore, P.C, 131. 
 
i84 
 
 The Railway Law ok Canada. 
 
 "I 
 
 i 
 
 ,*^ 
 
 U 
 
 d 
 u 
 
 Loss iif 
 business. 
 
 Injury to 
 business, 
 
 Loss of 
 privacy. 
 
 Injury to 
 
 fmnchises, 
 
 ferries. 
 
 even tlioiigli the company leaves one oj)ening in the embankment 
 and anolher opening just outside the plaintiffs jjroperty. (i) 
 
 35. The owner of land is entitled to ])ut it to what uses he 
 pleases; no right of compensation there' *re arises if a railway 
 company, having purchased land, jjuIIs down the hou-es upon it, 
 and thereby destroys the custom of a neighboring shop. (2) 
 
 The owner of a house may pull it down and rebuild it, or rebuild 
 the common walls, if he is careful to do no avoidable injury to 
 the adjoining house, and the adjoining owner has no claim to 
 compensation for noise, discomfort, loss of trade, etc., provided the 
 work be done with care and skill and according to the rules of 
 art. (3) 
 
 30. If injury is caused by the railway not to the property 
 as such but merely to the property as used for a i)articular pur- 
 pose, such as a business, or, in other words, to the business 
 carried on upon the property, no compensation can be recov- 
 ered. (4) 
 
 37. A landowner h"s no right of action because buildings on 
 neighboring lands oveilook his land, and thereby interfere with 
 its privacy ; (5) i)rovided that they are built at such distance 
 from his land as the law or custom of the locality requires. (6) 
 
 38. It is clear that an actionable injury to an incorporeal 
 hereditament, such as a franchise, is a subject matter of com- 
 pensation. Thus the obstruction of access to a ferry appurte- 
 nant to the claimant's house is matter for compensation. (7) 
 A ferry is the exclusive right of taking passengers acrojs a 
 stream by means of boats. It is no infringement of a ferry to 
 
 (i) NoMh Shore Uy. r. Pion, 14 App. Cas. 612 ; I5ig.-iouette f. North 
 Sliore Ry. Co., 17 S. C. K. 363. 
 
 (2) Regina 7\ London Dock Co., 5 A. & E. 153 ; Regina r. Vaugan, L. R., 
 4 (>. B. 190; I'nr.idis 7', Ti^e Queen, I Ex. R. 191. 
 
 (3) Regina r. Ilungerford Market, I A. & E. 668,676; Feck r. Harris, 12 
 L. C. R. 355 ; Lyman ;■. Peck, 12 L. C. R. 368 ; Moynaugh v. Angus, Q. R. 
 S. C. not yet reported. 
 
 (4) Rex r. Ion. Dock Co., 5 A. & E. 165 ; Rickett z'. Metropolitan 
 Ry. Co., L. R., 2 H. L. 175 ; Herring v. Metropolitan IJoard of Works, 34 
 L. J. M. C. 224; Wadham r . N. E. Ry. Co., 14 Q. B. I). 747. 
 
 (5) A'e Penny, 7 E. & B. 660 ; Sirey (V.) 80, 2, 308. 
 
 (6) C. C. 534-538. 
 
 (7) Regina f. G. N. W. Ry. Co., 14 Q. B. 25. 
 
 ' I- 
 
Eminent Domain. 
 
 185 
 
 provide fresh means of passage for a new kind of traffic. Tiiiis 
 a railway bridge, though in the line of a ferry, inasmuch as it 
 does not connect tiie highways connected by tlie ferry, but pro- 
 vides means of transit for the traffic brought along the railway, 
 is no infringement of the ferry. And if the use of the railway 
 bridge is allowed to foot passengers free of toll, to enable them 
 to get to and from the station of the company, the case is within 
 the same principle, (i) 
 
 ;i9. Any interference with an easement or servitude appurte- injury to 
 nant to land entitles the owner to compensation. This has ^***^""^"'*' 
 been decided with reference to a private right of way and to an 
 easement of light (2) and to a subway. (3) And such inter- 
 ference would seem to open the door to compensation for all 
 damages to the land to which the servitude or easement is 
 attached, it being looked upon as being an expropriation of a 
 real right. (4) 
 
 40. In addition to the grounds of damage already specified, injury to 
 the arbitrators have the right to take into consideration the value ^'c^'^- 
 of trees upon the property taken or those which may be dam- 
 aged by the exercise of the powers of the company. Fruit 
 trees, or trees valuable for other reasons, may be valued, and 
 their value taken into consideration by tlie arbitrators as an 
 element in arriving at the compensation to be paid to the pro- 
 prietor. It has so been held by the Courts of the Province of 
 Quebec in several cases arising under the Railway Acts, (5) but 
 it m;iy be strongly doubted whether the arbitrators have the 
 right to give the value of the trees, in addition to the full value 
 of the land, for in most cases the full value of the land would 
 include the trees growing ujjon it. For instance, applying the 
 
 (1) Hopkins 7'. G N. \V, Ry. Co., L. R., 2 Q. B. D. 224, overruling 
 Keg. r'. Cambrian Ry. Co., L. R., 6 Q. B. 422; and see Jones r'. Stanstead 
 Ky. Co., 4 P. C. App. p. 98. 
 
 (2) Gliiver 7\ Noith Staffordshire Ry. Co., 16 Q. B. 912 ; Eagle t. 
 Charing Cross Ry. Co , L. R., 2 C. P. 638; Clarke r. London School 
 Board, 9 Ch. 120 ; Ford r. Metropoliian Ry. Co., 17 Q. B. U. 12 ; Regina 
 7: Poulter, 56 L. J. q. B. 581 ; Wood ?•. A. & N. W. Ky. Co., Que. R., 
 
 2 Q- I^- 335- 
 
 (3) Wells 7\ The Northern Ry. Co., 14 O R. 594. 
 
 (4) Wood r. A. & N. W. Ky. Co., Que. R., 2 Q. B 335. 
 
 (5) See Evans v. Att. & N. West Ky. Co.'s M. L. R., 6 S. C. 493. 
 
 i. 
 
 iu 
 
 * i 1 
 
 ill 
 
iS6 
 
 'I'liK Railway I, aw ok Canada. 
 
 
 ^^11 
 
 rule wliich is now rccngm'zcd as the proper one, that the amount 
 ol" conipensalion should l)e cipiivalcnl to the tlilTcrencc lietween 
 the value of the whole property at the date of the deposit uf the 
 plan and the value of the portion remaining from that taken by 
 the Hallway Comijany, (i) ralurally the value of tin; whole 
 would he governed by the state of cultivation in which it was al 
 that time, including the value of the trees upon it. In other 
 words, the value of the property may or may not he increased 
 by the trees growing ii])on it ; and if the abov; mentioned rule 
 were ado|)ted by the arbitrators, they would consider the addi- 
 tional value of the trees growing upon the proi)erty, and their 
 value would I e included in the valuation put upon the land. It 
 may be said, in general terms, that the value of the land ought 
 to include the value of the trees growing upon it, and therefore 
 the arbitrators ought to include that value in arriving at their 
 award, and it would be paying the propiietor twice to give him 
 the value of the land and an additional sum for the value of 
 each particular liec growing thereon. 
 
 It would be different in the case of crops growing upon the 
 property which the construction of the railway would destroy 
 before they could be reaped ; in such a case the proprietor 
 would be entitled to receive, in addition to the actual value of 
 the land, the price of the crop which he would have been enabled 
 to realize if tlie railway had not destroyed the crop. It has 
 also been held by the Court of Ajjpeals in Quebec, that the arbi- 
 trators may .allow compensation for loss of land on each side of 
 railway rendered unfit for cultivation. (2) 
 
 ConuwnsiUion 41. The instances given are sufficient to show the general 
 a b.-ir to .nil grounds upon which compensation by the arbitrators should be 
 urtiei I aim. j^j^^gj^ ^^.^ j^ „^j^y ^^, ]^-^^ down that once this compensation 
 
 has been assessed by the arbitrators and accepted by the pro- 
 
 ( 1 ) Supra p. 160. Coni],enfation by a railway company is most readily and 
 fairly ascertained by determining the value of the land wiihoiit llie railway, 
 and of ilie portion remaining after tlie radway is built. 'I'lie difference is the 
 comiiensation to which the party is entitled. Troy & lioston Ry. Co. ?■, 
 Lee. 13 Haib. 169, 171, /// /v V Street, 17 Wend. 649; Canal Co. r'. Archer, 
 9 Gill &.J. 480; Parks r. City of Hoston, 15 Piik 198; Sonierville Ry. 
 Co. T. Doughty, 2 Znb 495. 
 
 (2) Mnthiiu r'. {) M. & O. Ry- Co., 15 Q I-. K. ,po. Confirnud in- 
 t^upreme Court, 19 S. C. R.426. 
 
 M 
 
 i?v 
 
 m 
 
 ■i 
 •1%' 
 
 i 
 
Eminknt Domain. 
 
 187 
 
 ])rictor, lie has no I'iiiUkt claim against the company by action 
 for any diinuit;fs whith may rise from ihc cxcicisc of tiir com- 
 pany's powers, piovidcd that they are exercised in a lareful and 
 proper manner, and without negligence, even though special 
 damages may result from the exercise of these powers which 
 were not considered by the arbitrators. So long as it was with- 
 in the jurisdiction of the arbitrators to assess such damngts, the 
 proprietor would be precluded from afterwards taking an action 
 to recover dani.iges which could be reasonably foreseen as 
 resulting from a proper and careful exercise of the powers of the 
 railway. In other words, the arbitrators are presumed to have 
 awarded comjiensation to the proprietor for all damage they 
 could reasonably foresee as the possible result of the lawful 
 and ])roper execution of the works by the railway comiiany, 
 under the powers conferred upon them by Parliament, and the 
 proprietor is presumed to have placed before the arbitrators 
 all the possible grounds of damnge which he might suffer by 
 such exercise of the company's powers ; and he would be 
 estopped and precluded from afterwards taking an action to 
 recover furllier damages resulting from such exercise of liieir 
 powers beyond those included in the award, (i) 
 
 As it was said by Baron Cleasby in Jiucclcuch v. Met. lUi. of 
 Works : " The award cannot be explained, or varied, or extend- 
 " ed, by extrinsic evidence of the intention of the person making 
 " it ; " (2) and by Lord Blackburn in the Exciiecjuer Chamber : 
 "Though the judgment of a limited tribunal is not final on a 
 " question of jurisdiction, yet if that tribunal has jurisd ction, 
 " the decision of a point within its jurisdiction, whether on the 
 
 M. 
 
 (i) Duke of Biiccleuch ?' Metropolitan Board of Works, L. R., 5 li. L. 
 418; Croft V. L, & N. W. Ry, Co., 32 L. J. Q. H. 113, 3 B. & S . 436 ; 
 Todd T'. Met. Dist. Ry.Co, rgW. R. 720; Dar.ey Main Colliery Co. 7'. 
 Mitchell, II App. Cas. 127 ; and see per Erie, C. J., in Chamberlain -'. West 
 of London if- Crystal Palace Ry. Co., 2 U. & S. 617-638 ; and also Knapp 
 f. G. W. R. Lo., 6U. C.C. P. 187; Vanhornr.G.T.R, Co., 9U.C.C.P. 
 264 ; Lesperance v G. W. R. Co., 14 U. C. Q. B. 187 ; Wallace v. G.T . R. 
 Co., 16 U. C. Q. B. SSI ; Utter T'. G. W. R. Co., 17 U. C. Q. B. 392; 
 McGillivray v. G. W. R. Co., 25 U. C. Q. B 69 ; Crewson v. G. T, R. Co., 
 27 U. C. Q, B. 68 ; Nicbol :■. Can. Souihern Ry. Co., 40 U C. Q . B. 583 ; 
 Tolton 7'. C. P. R. Co , 22 O. R 204 ; and Lan". & York Ry. Co. ~\ Ev.uis, 
 15 Beav. 322 ; Lawrence 7'. Great Northern Ry. Co., 16 Q. B 643. 
 
 (2) L. R., 5 H. L. 434. 
 
 I 
 
 n 
 
 SI 
 
 n 
 
fS8 
 
 inE Railway Law ok Canada. 
 
 11 
 
 " law 01" the fact, cannot be received except in a Court having 
 
 " jurisdiction to sit as a Court of Appeal from that decision 
 
 " Now, in case- where an award is good on the face of it, but 
 " llie arbitrator has made a mistake either of law or fact, if that 
 " mistake had been as to a matter within the arbitrator's anliior- 
 " ity, then, inasmuch as there is no Court of Appeal from the 
 " arbitrator, the mistake cannot be remedied, nor can the Court, 
 " even in the exercise of its equitable jurisdiction, sel rside the 
 " award, unless it can be shewn that there was misconduct or 
 " some other equitable ground of interference. But if the mis- 
 " take has been as to the extent or nature of the arbitrator';. 
 " authority, leading him to exceed it, then, ... the award may be 
 " impeached as being made without jurisdiction." (i) 
 
 Under our Act the party would have an appeal to the Courts 
 upon any question of law or fact, such appeal to be decided 
 upon the evidence taken before the arbitrators. (2) 
 
 To summarize, it may be said that, apart from this right of 
 appeal, where a proprietor's lands have been taken under the 
 authority of the Act, and his damages have been assessed by 
 the arbitrators, he cannot afterwards recover by action any 
 damages caused by the exercise of the company's powers which 
 it was within the jurisdiction of the arbitrators 1.0 give compen- 
 sation for, and which they could reasonably foresee, unless they 
 arise from a negligent or improper exercise of those powers, 
 inasmuch as such damages are deemed to be covered by the 
 award. (3) 
 
 In a recent case, however, (4) these principles were departed 
 from by the Court of Appeals of Quebec, where it was held that 
 a proprietor miglit recover, by action, interest on the amount of 
 an award from the date of the taking possession of his land by 
 the railway company, though it was admitted by the Court that the 
 awarding of such interest was within the jurisdiction of the arbi- 
 trators. In face of the decision of the highest Court in England, 
 
 l!**. 
 
 (1) L. U., 5 Ex. at pp. 231-232. 
 
 (2) Sec. i6l. 
 
 (3) Uhi supra p, i,S6, and as to statutory remedy l)2inir exclusive and not 
 merely cumulative, see East & West India Dock & Birmingham Junction 
 Ky. Co. ;■ Gatike, 3 Mac. & Gor. 155, 3 Eng. L. & Eq. 59 ; Watkms 7>. 
 Great Northern Ry. Co., 16 (^. B. 961, 6 Eng. L. & Eq. 179. 
 
 (4) A. & N. VV. Ry. Co. ?•. Iteming, Que. R., 3 Q. B. 165. 
 
 . 
 
Eminent Domain. 
 
 189 
 
 it is difficult to see Iiow this decision can be supported in prin- 
 ciple. The award ing.of interest upon the value of the land, as com- 
 pensation to the propri 
 iiis being deprived of 
 
 etor for the damage resulting to him from 
 the use of it from the lime the com|)any 
 took possession, was clearly vithin the jurisdiction of the r.rbi- 
 trators, and the damage could not only be foreseen, but was 
 patent. While the proprietor might upon appeal under section 
 161 have had the award increased by the amount of tlie interest, 
 representing the loss of enjoyment of his land, it would seem 
 clear, upon the principle laid down in the cases cited, tliat he 
 could not maintain an action to recover it in excess of the 
 amount of the award. 
 
 43. The form in which the award is to be made is not specified Form of 
 in the Act, except in so far that it is required by section 1 6 1 , ''"'"'■^' • 
 that it shall stale clearly the sum awarded, and the lands or 
 other property, right or thing for which such sum is to be the 
 compensation ; 
 
 43. But before considering the form of the award and the 1 )esistnieiit 
 essentials to its validity and on what grounds it may Vh from notice, 
 attacked, it may be well to point out that the company have the 
 power of desisting frotn and abandoning the notice of ex- 
 propriation, and ail proceedings had under it in certain specified 
 cases under section 158 of the Act. It is there provided that in 
 any case where the notice improperly describes the land or mate- 
 rials intended to be taken, or where the Company decides not to 
 take the land or materials mentioned in the notice, it may abanelon 
 the notice and all proceedings thereunder ; but in such case the 
 company is liable to the proprietor notified for all damages or 
 costs incurred by him in consequence of the notice and abandon- 
 ment. After such desistment the company may give a new notice, 
 to the same proprietor or any other proprietor, for other lands or 
 material, or for the same lands or materials differently desciibed. 
 Under the conditions of the previously existing Act, (i) the cascg 
 in which such abandonment might be made were not specified; 
 it was simply provided that the company might abandon the 
 
 (i) R. S C, cap. 109, s. 8, § 26 ; the provisions of the present Frovinciali 
 Acts are similar to those of tiie old Federal Act, see Appendix, sec. 158. 
 
 I 
 
 III 
 
!i 
 
 11 
 
 190 
 
 The Railway Law of Canada. 
 
 notice, and give a new notice as already meniioned. It was 
 held, under tlie old Act, by the Quebec Court of Appeals, in the 
 case of The Seminary of Ste. Tlierese v. C. P. Ry. Co., that 
 once the company had given not'.ce of expropriation, and had 
 taken possession of the lands, they could not discontinue the 
 proceedings, even on payment of the damages incurred. 
 
 This decision was practically confirmed by the Supreme 
 Court, (i) though not expressly, for the Court there decided 
 that there was no appeal to that Court ; but some of the judges 
 expressed themselves as strongly of the view adopted by the 
 Court of Appeals, namely, that once the notice of expropriation 
 had been given and the company had taken possession of the 
 lands, they could not retreat from that position, but must take 
 the lands and make such compensation as the arbitrators might 
 assess, — in other words, that the abandonment must take place 
 while the notice is still a notice, and before the intention has 
 been exercised by taking the lands. 
 
 The same view was taken in an early Ontario case. (2) In 
 later cases, however, it was held that the company could desist 
 from their notice at any stage of the arbitration proceedingb 
 before the award was rendered ; (3) but that, having once desist- 
 ed and given a new notice, the 'company could not desist from 
 the second notice after the arbitration proceedings had begun. 
 (4) Bat where the land owner had objected to two successive 
 notices of expropriation, on the ground that the company had 
 no right to lake any part of his land, and the company desisted 
 from both notices, and gave a third from which also they 
 desisted, it was held that the com])any had not exhausted their 
 powers of desistment, and that the land owner could not validly 
 object to the abandonment of proceedings which he had pre- 
 viously contended the company had no power to take. (5) It 
 has also been held in Ontario that a new notice must be '^iven 
 with the desistment, and that without it the old notice remains 
 in force to uphold an award under it. (6) 
 
 (i> 12 L. N. 338, S. C. K. i88y, 16 S. C. R 606. 
 
 (2) G. W. R. Co. V. Miller, 12 U. C. Q. B. 654. 
 
 (3) Gdtnshawr'. G. T. R. Co., 15 U. C. Q. B. 224 and I9 Q. B. 493; 
 Cawthra et al. r. Hamilton and L. E. Ry. Co , 35 Q. B. 581. 
 
 (4) Moore r. Central Ont. Ry. Co., ? O. R. 647. 
 
 (5) AV Hoojier & The Erie & Huron Ry. Co., 12 P. R. 408. 
 
 (6) Widder v. ButTalo & Lake Huron Ry. Co., 24 U. C. g. B. 222. 
 
Eminent Domain. 
 
 TQI 
 
 Under the Act as it stands to-day, however, it would appear 
 that the company could abandon their notice, and in the lan- 
 guage of the Act " all proceedings thereunder," at any lime, in 
 the cases specified, even after possession had been' taken. 
 
 The Company's engineers or surveyors may often make mis- 
 takes in the description of the lands in the notice given to the 
 proprietor, or in the laying out of the line, and it would seem 
 unjust in such a case that the company could not have the power 
 to desist from their expropriation proceedings, when they discov- 
 ered the mistake, which might be only after they had begun 
 work. 
 
 In such cases it would appear that under the Act as it now 
 stands, the company would be entitled to desist from their 
 notice, and the i)ror.eedings had under it at any lime. The lan- 
 guage of the Act is now broader than it was before, inasmuch as 
 it includes not only the abandonment of the notice but of all 
 proceedings had thereunder j and it would therefore seem to 
 give the company the right to^ desist from the expropriation of 
 any land, and to take other land in its place, either from the 
 same proprietors or others, at any stage of the proceedings, (i) 
 At the same time, it must always be remembered that the com- 
 pany must pay for their mistakes, and arc liable to the proprietor 
 for all damages and costs which they have caused eitlier by the 
 giving of the notice or the execution of its works, or any pro- 
 ceedings which may have been taken under the notice. 
 
 These damages and costs may be of various kinds. If the 
 company has commenced operations upon the land, and made 
 excavations, or built embankments, or done other work upon 
 the property which would disfigure it or damage it in any way, 
 they must pay for such damages, if they abandon the property 
 or any part of it ; (2) and it might be that even though they had 
 done no works upon the property, yet if, by the deposit of the 
 plan and giving the notice, they had prevented the proprietor 
 from using the land, or from selling or otherwise disposing of it, 
 he would be entitled to any damage which he could prove result- 
 ing therefrom. 
 
 (1) See Nehan v. St. Catharines & N. C. Ry. Co.. 16 O. R. 459. 
 
 (2) Wilkes T'. Gzowski, 13 U. C. Q. B. 308. 
 
 I 
 
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 Form of 
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 192 
 
 The Railway Law of Canada. 
 
 44. To return to the form of the award, it must of necessity be 
 in writing, (i) and it should be signed by the three arbitrators or 
 by the majority of tlie arbitrators, at a meeting held at a time 
 and place of which the three arbitrators had at least two clear 
 days notice, or which had been fixed at a previous meeting (2) 
 when the three arbitrators were present. 
 
 According to section 161 of the Act, (3) as already poinled 
 out, the award must state clearly the sum awarded and the lands 
 or other property, right or thing for which such sum is to be the 
 compensation, but the person to whom the same is to be paid 
 need not be named in the award. 
 
 The award must be final ; (4) the compensation must consist 
 of a fixed or capital sum of money, and not of future periodical 
 payments dependent upon future events, such as the completion 
 of a certain work. Such an award would be void for uncertainty. 
 
 (5) 
 
 The lands or the right or thing for which the compensation is 
 
 awarded must be not only clearly but correctly described in the 
 
 award, and the award must show in a clear and precise manner 
 
 that the lands are those described in the notice of expropriation, 
 
 without its being necessary to have recourse to extrinsic proof 
 
 to establish that fact. (6) But where arbitrators have valued 
 
 the land as a whole, and not at so much by the admeasurement, 
 
 an error in the extent will not invalidate the award. (7) And 
 
 where the notice of expropriation and the award both described 
 
 the lands expropriated as lot number r, on the plan of the railway 
 
 company deposited according to law, but in another part of the 
 
 notice me lands were described as part of a cadastral lot No. 
 
 2345, and in the award as forming part of the lots 2344 and 2345, 
 
 it was held by the .Supreme Court that there was no uncertainty, 
 
 as the wording of the notice and the award was sufficient in 
 
 (1) In the Province of Quebec it should be in notarial form, C. C. P., 
 .irt. 1352 , .ml see Uenninfj v, A. «&^N. W. Ry. Co., M.L.R., 5 S. C. 136, 
 6Q. H. 385. 
 
 (2) Sec. 152. 
 
 (3) '^■"/'" P- 189- 
 
 (4) G. W. R. Co. V. Laderonte, I P. R. (Ont.) 243. 
 
 (5) 15ourgouin f. M. O. & O. Ry. Co., 23 L. C. J. 96, 5 App. Cases 3S1. 
 
 (6) N. S. Ry, Co. v. Ueaudet, II Q. L. R, 239. 
 
 (7) N. S. Ry. Co. V. Ursulines of Quebec, Ram. Dig., 60 Q. B, 
 
Eminent Domain. 
 
 193 
 
 Itself to describe the property intended to be ex])iopriated and 
 for the taking of which the compensation was awarded, (i) 
 
 In another Quebec case it was held that when the award is 
 obscure, and does not indicate sufficiently whether the lands for 
 whi( h the compensation was awarded are the same as those des- 
 cribed on tlie railway company's ])lan, tlie Court can demand 
 explanations of the award, but cannot change nor modify the 
 conclusion to which the arbitrators have come. (2) The sound- 
 ness of this decision may be doubted in view of the decision of 
 the Court of Appeals of Quebec in the case of the North Shore 
 Railway Co. v. ^^(///^/f// above referred to. (3) Where there is 
 an adequate and sufficient description with convenient certainty of 
 the land intended to be valued and of the land actually valued, 
 such award cannot afterwards be set aside on the ground that 
 there is variation between the description of the land in the notice 
 of expropriation and in the award, (4) and it is not necessary 
 to set out the lands by metes and bounds. (5) 
 
 As to what the award should and should not contain, some 
 very clear and pertinent suggestions were made by the late Chief 
 Justice Robinson in the Ontario case of Great IVestern Ry. Co. 
 V. Baby, (6) where that learned judge sa'd : " It should be clearly 
 " expressed in the first place that the sum awarded is given for 
 " the value of the lands and tenements or private privileges pro- 
 " posed to be purchased, (and) or the amount of damages which 
 " the claimant is entitled to receive in consequence of the in- 
 " tended railroad in and upon his lands (as the case may be) ; and 
 " that the award should either be silent in regard to any other 
 " matter on which the Statute gives any autliority to the arbitra- 
 " tors to give a direction, or that, if the estimate has been in- 
 " flucnced by anything which the company has engaged to do in 
 " order to lessen the inconvenience, it should be plainly expressed 
 " that the company have undertaken to do it, and the particular 
 " thing should be so defined as to leave no uncertainty and no 
 
 (1) Beaudetf. N. S. Ry. Co., 15 S. C. R. 44. 
 
 (2) N. S. Uy Co. V, I'Hopital du Sacr6 Coeur, 15 R. L. 599, Q. 13. 
 
 (3) II Q. L. R., 239, 
 
 (4) higaouelte v. The N. S. Ry. Co., 17 S. C. R. 363, and see MiILr r 
 G. W. Ry. Co., 13 U. C. Q. B. 582. 
 
 (5) G. \V. R. Co. z\ Rolph, I P. R. 50- 
 
 (6) 12 W.C. Q. B. 106. 
 
 n 
 
 
 11 
 
194 
 
 The Railway Law of Canada. 
 
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 award. 
 
 " room for future litigation about what is to be done or allowed 
 
 " by the company, and at what particular point in their work 
 
 "and in what manner it is to be done. It would be better, too, 
 
 . \n undertaking under the seal of the company, securing 
 
 '^' .antage or privilege in precise terms, should be taken, 
 •' and if they will not give such undertaking, there shall be no 
 " allowance made for such proposed advantages or privileges in 
 "cs.. M.!tin I., value or damages to be paid by the company." 
 
 The wisdom oi":'.e suggestion of the learned judge as to un- 
 dertakings by the company is illustrated by several Ontario 
 cases. For instance, where the evidence before the arbitrators 
 liad been closed, tiie construction committee of the railway com- 
 pany wrote a letter, addressed to the party to be expropriated, 
 agreeing to certain things whereby the damage to his property 
 would be lessened, and this letter was communicated to tiie com- 
 pany's arbitrator and tiie umpire, but not to the party expro- 
 priated himself until the award was rendered, which contained 
 recitals of the benefits proposed by this letter, and assessed the 
 compensation at the sum originally offered by the company. The 
 award was held bad. (i) 
 
 Again, wjiere the arbitrators stated in their award that *' we 
 "have taken it for granted in making this award that the said 
 '• C. H. shall have the right to cross the railway track from one 
 " part of his property to anotiier," the award was held not to be 
 sufiicienily definite or certain. (2) Pur the same reason, an 
 award containing a reservaiion in the following words, " preserving 
 to Dods the right to cross the railway line from one portion of 
 the said land to the other," was held bad, as far at least as the 
 reservation was concerned, on the ground that such an absolute 
 reservation was unauthorized, and if not was so indefinite as to 
 be invalid. 
 
 45. An appeal lies from the award under section 161, where 
 llie amount exceeds $400 to a Superior Court of the Province in 
 which the lands are situated, upon any question of law or fact ; 
 questions of fact to be decided upon the evidence taken before 
 
 (i) Herring ?■. Napanee etc. Ky. Co., 5 O. R. 349. 
 (2) ^- W, Ry. Co. T'. Hunt, 12 U. C. Q. H. 124; and see Staines z/. 
 Molson, 29 L. C. J. 27S. 
 

 Eminent Domain. 
 
 195 
 
 the arbitrators as in a case of original jurisdiction. This right 
 of appeal, however, does not affect the existing law or practice 
 in any province as lo setting aside awards, (i) Under this sec- 
 tion it would appear that where there is clearly an error of law 
 or fact on the i)art of the arbitrators apparent on the face of the 
 award, or so appearing from the evidence and documents of 
 record, an ajipeal would lie, and where the arbitrators have ex- 
 ceeded their jurisdiction and taken into consideration mailers 
 which they had no right to consider in assessing the amount of 
 the compensalion, or have neglected to take into consideration 
 matters within their jurisdiclion. But if these facts could only 
 be eslablishf^d by extrinsic evidence outside of the award or of 
 the record, the proper re ourse would seem to be by an action 
 to set at-ide the award, as also where the award contains nulli- 
 ties in itself, or the arbitrators have not complied with the rctjuire- 
 ments of the Act. (2) Where the arbitrators have omitted some 
 ground of damage within their jurisdiction, it would seem that 
 the proper course would be by appeal, and it is doubtful whether 
 an action to set aside would lie in such case, and as to whether 
 the arbitrators could be examined in such an action to establish 
 such omission. (3) Wlicre, however, the arbitrators have 
 awarded a sum as a part of the compensation for a matter with- 
 out their jurisdiction, they may be examined to establish the 
 fact. (4) 
 
 Where the amount of the compensation is alone in question, 
 the proper remedy would be by way of ajjpeal, and not by 
 action ; and it has been held by the Privy Council, that in an 
 action lo set aside iheawaid, the Coi.rt will not look at the amount 
 of the compensation, so long as in fixing that amount the arbi- 
 trators were acting within their jurisdiction. (5) But the 
 Superior Court of Quebec, in a later case, while holding that 
 when all the requirements of the law have been observed, the 
 award is final and conclusive, and the amount of the compensa- 
 
 (i) Ibid, par. 4. 
 
 (2) But see M. O. ik O. I\y. Co. :•. St. Denis, Que. R., 2 Q. 15. 532. 
 
 (3) Dulie of Hiiccleucii ;■. Met. lird. of Woiks, L. R., 5 11. L. 41S; 
 Wood V. A. & N. W. Ry. Co., Que. R., 2 Q. H. 333. 
 
 (4) Dulie of IJuccleucli 7'. Met. lird, oi Works, s 11/ ru. 
 
 (5) Bourgoin z\ M. O. & O. R^ Co., 5 App. Case.s 3S1, 
 
 'I, 
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 196 
 
 Thi! Railway Law of Canada. 
 
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 tion entirely within the discretion of the arbitrators, and in llie 
 absence of fraud or other particulars not subject to review by the 
 Court, nevertheless held, that inadequacy in the sum awarded 
 may be such as in itself to constitute proof of legal fraud on the 
 part of the arbitrators, and in such case the Court may annul and 
 set aside tin: award by reason of such fraud ; but to justify such 
 action by the Court, the sum awarded must be so grossly and 
 scandalously inadequate as to shock the sense of justice, (i) 
 
 It may be observed with regard to this case, that the holding 
 referred to was a dictum of the learned judge not necessary for 
 the decision of the case, inasmuch as the award was maintained. 
 While it may be that such scandalous inadequacy or gross exag- 
 geration in tiie amount of an award as to amount to a presump- 
 tion of fraud may justify the Court in setting it aside, (2) the jiioof 
 would have to be of the strongest, (3) and it may be well doubted 
 whether anything short of actual Iraud would justify the Court 
 in so doing. (4) The more proper recourse would now seem to 
 be by an appeal upon the evidence taken before the arbitrators. 
 
 There are many grounds on which awards may be set aside 
 by action besides those which have been already referred to. 
 Section 161 provides that liie award shall not be invalidated by 
 reason of any want of form or other technical objection if the re- 
 quirements of the Act have been substantially complied with. As 
 to what are the requirements of the Act which must be com- 
 plied with on pain of nullity, in the first place the arbitrators must 
 be properly appointed, and tiiough the method of the appointment 
 of the arbitrators could be shown by any legal proof outside of the 
 award, it is better that the method of their appointment should be 
 shown upon the face of the award. In the case oi/lt/ivitic & A'. 
 W. Ry. Co.\.Jolinsoii, (5) the judge refused to grant an order 
 for the payment of money in accordance with the award, where it 
 was not stated on its face in what manner the third arbitrator 
 had been appointed. 
 
 (1) Benning v. The A. & N. W. Ry. Co., M. L. R., 5 S. C. 136, 6 Q. B. 
 
 385- 
 
 (2) Norvall v. C. S. Ry. Co., 5 O. A. R. 13 ; G. W. R. iJo. ;■. Baby, 
 12 U. C. Q. B. 106; G. W. R. Co. f. Dodds, ibid. 133. 
 
 (3) In re G. W. R. Co. & Chauvin, I P. R. (Ont.) 288; Wilder v, Buf. 
 falo & Lake Huron Ry. Co., 24 U. C. Q. B 520, and 27 Q. B, 425. 
 
 (4) Ibid. (5) 10 L. N. 228. 
 
 IPI 
 
Eminenp Domain. 
 
 197 
 
 Then the arbitrators and the witnesses must be sworn ; and 
 it is better that this also should be stated in the award, for it has 
 been held that such statement on the face of the award makes 
 sufficient proof of the fact of their having been sworn ; (i) 
 though if it does not so appear by the award itself, the fact of 
 their having been sworn can be established by any other valid 
 proof. The omission to swear the arbitrators, this being one 
 of the requirements of the Act, will invalidate the award. (2) 
 The evidence must be taken down in writing, and as this is a 
 requirement of the Act, failure to do so would be a ground for 
 invalidating the a.vard. (3) The award must be rendered within 
 the time fixed by the arbitrators, and it is provided in the Act, 
 as already pointed out, (4) that if it is not rendered on the day 
 fix-d, or on some other day to which the time for making it has 
 been extended, either by consent of the parties or by resolution 
 of the arbitrators, the amount offered by the company is to be 
 the compensation paid. This provision of the Act is express, 
 and it appears to be inevitable that an award rendered after the 
 delay had expired would be a nullity, and would be set aside on 
 action, and the amount offered by the company declared by 
 the Court to be the only amount to which the proprietor would 
 be e'ltiiled. The Act further requires that this day should be 
 fixed at the first meeting of the arbitrators after their appoint- 
 ment, and an award was set aside by the Tourt of Appeals in the 
 case oi Beaudet v. The North Shore Ry. Co., (5) where the arbi- 
 trators had failed to fix a day at their first r. eeling. The judg- 
 ment, however, went on other grounds also, holding that the 
 property was not clearly described, and that the award was un- 
 certain. The case went to the Supreme Court, where the award 
 was restored, the Court holding that the property was sufficiently 
 described for the purposes of identification, and that there was 
 no uncertainty. (6) It does not appear from the report what was 
 the decision of the Supreme Court on the other point, but it 
 
 (1) Mills 7\ A. & N, W. Ry. Co., M. L. R., 4 S. C. 302. 
 
 (2) Whiifield V. A. & N. W. Ry. Co., 33 L C. J. 25. 
 
 (3) The evidence may be taken by stenography if required by either 
 P"ty, 54-55 Vic, cap. 51. 
 
 (4) Sec. 156, and supra, p 148. 
 
 (5) 11Q.L.R.239. (6) ISS.C. R. 44. 
 
198 
 
 The Railway Law of Canada. 
 
 i 
 
 must have been adverse to the holding of the Court of Appeals, 
 as otherwise the award could not have been upheld. Probably the 
 Court looked upon this provision of the Act as merely directory 
 and not imperative, and tiiat the provision had been substantially 
 complied with by the arbitrators having fixed a day at a subse- 
 quent meeting to the first meeting. This would appear to be a 
 correct view to take of the matter. It is a mere matter of form 
 whether the arbitrators fix a delay at their first meeting or at 
 some subsequent meeting, and where liie parties have proceeded 
 with a knowledge of the fact, no doubt they would be estopped 
 from raising this want of form in an action to set aside. 
 
 The delay for rendering tiie award may be prolonged either 
 by the consent of the parties or by resolution of the arbitra- 
 tors, (i) As to the manner of extending the delay, it has been 
 held by the Superior Court of Quebec in the case of 2Vie Cure, 
 etc., 0/ St. Anne v. T/ie 0. <t' Q. Jiy. Co., (2) ai:d confirmed in 
 Appeal, (3) that where an award has been rendered long after 
 the day fixed at the first meeting of arbitrators, and though tiiere 
 was no written consent of the i)arties and no rcbolution of the 
 arbitrators fixing another day, yet the consent would be pre- 
 sumed from the fact that meetings had been regularly adjourned 
 from time to time, and notice of such adjournment given to the 
 company's arbitrator. This case would appear to be of doubtful 
 authority, inasmuch as the consent of the party could only be 
 presumed where he knew that the day fixed had been passed, 
 and there was no evidence in this case to show that the com- 
 pany had any knowledge of what day had been fixed foi the ren- 
 dering of the award, and as a matter of fact, it appeared that 
 they were not represented at the first meeting, when the day was 
 determined on by the arbitrators. It would be different in the 
 case of a submission in writing, signed by the parties, in which 
 the delay for rendering the award was fixed. If the parties con- 
 tinued after that date to bring up witnesses, attend the meetings of 
 the arbitrators, etc., this might imply a consent to the extension 
 of the delay, (4) or a recognition that the arbitrators' authority 
 had not expired. 
 
 (I) Sec. 156. (2) M. L. R., 5 S.C. 51. 
 
 (3) M. I.. R., 7 i). H. no. 
 
 (4) .See Earl of IXirnley :■. Lon., Chat. & Dover Ry. Co, , L. R., 2 II. of 
 L. 43- 
 
Eminent Domain. 
 
 199 
 
 Both parlies are entitled to the opinion of the arbitrators, on 
 one side or the other, up to the moment that the award is ren- 
 dered, (i) The Act very particularly provides that the award 
 shall not be rendered without two days' notice to all the arbitra- 
 tors. This provision of the Act is in accordance with the princi- 
 ple that each party is entitled to the opinion, and the counsel 
 and advice, of each arbitrator, up to the moment the award is 
 rendered ; and an award rendered in the absence of one of the 
 arbitrators, without such notice to him, would be bad. (2) 
 
 The award in the province of Quebec is, under the provisions 
 of the Code of Civil Procedure, (3) generally made before a 
 notary ; and even though the tliiee arbitrators may have agreed 
 upon the amount of tlic award among themselves, still, either 
 party being entitled to have the advice and opinion of all the 
 arbitrators up to the moment that the foimal award is made 
 before the notary, if tiie award is so made without llie notice 
 required by the Act, it might be properly set aside by the courts. 
 
 For instance, the tliree arbitrators, after having heard the evi- 
 dence on both sides, and having examined the pro[)erty and 
 deliberated, cannot agree unanimously, but two of them are 
 agreed to award a certain amount. The third arbitrator does not 
 agree, but differs in opinion from his brother arbitrators, and, 
 after discussion, the two arbitrators agree to award a certain 
 amount. It is necessary for a valid award that the arbitrators 
 should meet in a notary's office, and make a formal award, assess- 
 ing the damage at the amount they have agreed upon. The dis- 
 senting arbitrator is entitled to a notice of that meeting, that is to 
 say, the notice required by the Act of two days ; and even though 
 he may have said to his brother arbitrators that he could not 
 agree with ihem, and even though they two after discussion had 
 settled the amount of the award, still the opposite party would be 
 entitled to his opinion up to the moment that the formal award 
 was actually signed, because he might by argument or otherwise 
 
 (1) Herring T'. Napauee, T. &. (j. l^y. Co., 5 O. R. 349; Norv.ill t; 
 Can. Southern Ky. ',< ., 9 A. K (Ont.) 310. 
 
 (2) Can. Southern Ry. Co. r'. Cunningliam et al., Ca^sel's Dig. 34; St. 
 Denis :■. M. & O. Ry. Co., M. L. R , 6 S. C. 484 ; conlirmed inAppeal 
 Que, R, 20. 15. 5^2. 
 
 (3) C. C. I'., Art] 1352; lienning r. A. & N. W. Ry. Co., M. L. R. , 6 
 Q. H. 385' 
 
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 change llie opinion of the other arbitrators, and the party whom 
 he represented would be entitled to the benefit (jf his opinion, 
 (i) The jirinciple has been very strongly upheld in Ontario. 
 It has been invaiiajjly iield there that both parties to the arbi- 
 tration are entitled to the benefit of ihe ojjinion of each arbitra- 
 tor up to the moment that the award is rendered. (2) And in 
 the case of jV('/7'.?// V. Canada Southern Ry. Cc, (3) the doc- 
 trine was carried to the furthest extent. Tiie arbitrator for the 
 party complaining against the award had, in that case, refused to 
 attend a meeting for the purpose o*" signing a formal award : 
 that is to say, all the parties having met after hearing the 
 evidence, etc., and it being found that this arbitrator could not 
 agree with the others, and two of them having come to an agree- 
 ment as to the amount to be awarded, it was stiggested that they 
 should meet and render a formal award ; thereupon the dissent- 
 ing arbitrator slated that he would not meet them again, that it 
 was impossible for him to come to any agreement, and that 
 there was no practical object to be served by meeting again, and 
 he declined to meet the two arbitrators thereafter. The 
 other two arbitrators rendered their award without having given 
 notice to the third of the day on which the formal award was to 
 be rendered ; and it was held that inasmuch as Tiie Railway Act 
 required that notice must be given to the dissenting arbitrator, 
 in order to give validity to the decision of the majority, the 
 
 (I) St. Denisr. M. 6t O. Ky. Co., Que. R., 2 t^. U. 532. Hut see Cur6 
 of Ste. Anne r.O. iS: O. Ry. Co., M. L. R., 7 Q. H. lio, where it was held 
 thiit, where the atnouiu of compensation was entered in the minutes of ihe 
 ar))ilraiors, and on a subsequent day the award was made out in notarial form 
 and siyned by two of the art;ilr.itors, the third not being present o: notified, 
 this did not invalidate the award previously m.ide and entered in t'le minutes. 
 This dtcision is in eonlhet with that of the same Court previously rendered in 
 Hennini; :■■ A. & N. W. Ky. Co., M. 1, R., 6 Q. R. 385, wherein it wasdis- 
 tincily held th.1l the notarial award, aivl not that entered in the minutes, is 
 the true award ; and with the subseiiuent decision in St. Dents f. M. & O. 
 Ry. Co. (supra), thai the person selecting an arbitrator is entitled to all the 
 lienefit which results from his presence, in correcting errors of fact and pre- 
 senting by argument the merits of the claim, and that the formal award ren- 
 dered before a notary in the .absence of one arbitrator without notice to him 
 was nill. 
 
 (2) Herring 7'. Nap. T. & Q. Ry. Co., 5 O. R. 349; Norvall r'. Can. 
 Southern Ry. Co., 9 A. R. 310 ; City of Toronto ». Leak, 23 Q. B. 223 ; 
 MacDonald r. I'resant, 16 Q. B. 84. 
 
 (3) 9 A. R. 3«o. 
 
 'mi'i 
 
Eminent Domain. 
 
 30t 
 
 Court, in the presence of such a direct and absolute provision of 
 the Statute, must annul the award, (i) 
 
 Where, however, there has been a proper adjournment, the 
 absence of one of the arbitrators at tlie adjourned iiiccling would 
 not invalidate the award. (2) So where the argument closed on 
 a certain day, and the arbitrators adjourned to the next day, 
 when after discussion one of them refused to concur with the 
 others as to the amount of compensation, and withdrew, and the 
 otiier two then signed tlie award, am' ihree days afterwards 
 acknowledged it in tiie presence of a wimess, it was held that ihe 
 award was valid both under the statute and at common law. (3) 
 
 Tlie grounds slated hitherto liave been praciically matters of 
 form, though formalities required by the Act to be observed ; but 
 there may be grounds urged wiiicli are |)ersonal to those who 
 have rendered the award. The arbitrators themselves, the 
 judges who assess the amount of compensation, may be recused 
 on proper grounds. Grounds of disqualification against an 
 arbitrator could not be urged upon an action to set aside an 
 award, because, under the Act, ihese grounds must be urged 
 before the appointment of the third arbitrator, or in the case of 
 a third arbitrator, at the time of Iiis appointment by the judge. 
 (4) Hut ifit could be shown that, at a subsequent stage of the pro- 
 ceedings, any of the arbitrators had been intluenced by improper 
 motives, it would be a good ground for setting' aside the award* 
 The party aggrieved by an unjust award cannot be deprived of 
 his right to have it set aside if he can show unfair conduct or 
 partiality, (5) fraud, collusion with the opposite party, undue in- 
 fluence, or incapacity on the part of the arbitrators. (6) And in 
 fact, in practice, these have been the grounds upon which many 
 awards hive been contested, whether well founded or not; but 
 there is no doubt that if the fact could be established, that even 
 
 Nickle, 30 U. C. C. P. 87; Nott ?: NoU, 5 O. 
 
 (1) See also Anglin 
 R. 283. 
 
 (2) l-reenian J'. O. & <2- Hy. Co,, 6 O. K. 413. 
 
 (3) Freeman ?■. O. & (2- Ry. Co., 6 O. R. 4(3. 
 
 (4) Sec. 160, supra p. 153. 
 
 (5) Hamilton 7'. Wilsin, 4 O.S. 16. /« n- McMulIen & Cay]ey,2 U. C. 
 Q. a. 175 ; Bull & Bull, 6 U. C. Q. B. 357; Hotckiss & Hall, 7 L. J. 
 N. S. 320; Burr r. Gamble, 4 Grant's Chy. 626. 
 
 (6) Williams f. Roblin, 2 Ont. P. R. 234; Lawso-; z'. Hutchinson, 19 
 Grant's Chy. 84. 
 
 
 
 I. ( I 
 
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202 
 
 The Railway Law of Canada. 
 
 awaiil. 
 
 Practice . 
 
 one of ihe arbitrators, whether the arbitrator of the successful 
 party or of the losing party, had been so incapacitated, by 
 drink or otherwise, as not to be capable of giving an independent 
 and sensible proper opinion, or had been influenced in anyway, 
 or even had accepted refreshments of any kind from any oftlie 
 parties, it would be a ground for setting aside the award, (i) 
 Appeal- from 4(J. With regard to the right of appeal given under The 
 Railw.iy Act by section i6i, paragraph 3 provides that the pro- 
 ceedings ui)on such an appeal shall be as nearly as may be the 
 same as upon an appeal from a decision of an inferior court to 
 the Superior Court, subject to any rules or orders which may be 
 made from time to time by the Courts. No rules of practice affect- 
 ing such apj)eals have as yet been passed by our judges, so far 
 as tlie author is aware. But in the Province of Quebec the 
 practice adoped from the existing procedure in cases of appeals 
 to the Superior Courts from Couits of inferior jurisdiction has 
 been generally followed, and may be now considered as establish- 
 ed. That practice is to apply to tlic court by a petition, setting 
 forth briefly the appointment of arbitrators, the award, including 
 a short description of the property or right expropriated, and the 
 reasons or grounds upon which tiie appeal is asked for. Notice 
 of this petition is generally given to the opposite party, though it 
 is not essential, and a writ is then issued, and the proceedings 
 go on summarily, before a judge of the Superior Court. 
 
 The practice in Ontario is by simple notice of motion, which is 
 ]iroceeded with summarily, without the issue of a summons, and 
 without a written answer. 
 
 47. In order to bring the papers before the Court, the arbi- 
 trators are required, at the request of either party, to transmit to 
 the clerk of the Superior Court, by registered letter, iJie deposi- 
 tions taken before tiiem, together witli all exhibits and jjapers 
 connected with the arbitration, except the award itself. (2) If they 
 should fail to do so, a writ of mandamus or ceriiorari would 
 doubtless lie to compel them to bring the papers before the 
 Court ; but the usu" ! ,ji-actice is to make the arbitrators i)arties 
 {mis en cause), and they are thus subject lo the orders of the 
 
 (1) A. .^N. \V. Ry. Co :■. Bronsden, 1893, Q R.,2 Q. B. 470. A 
 similar j uignieiii was leiidercd ilie same day in an action ijy tiie same appel- 
 lant agiiin'^t riiidel lespon lent. 
 
 (2) Sec. 155, S-. 2. 
 
 BrinyinL; ilie 
 arV)itrailon 
 record ini') 
 court. 
 
I 
 
 Eminent Domain. 
 
 203 
 
 ''4 
 
 Court in the case. In Ontario they may be ordered to produce 
 the paper on motion. 
 
 48. As to the grounds upon which an appeal may be taken, (Jrmimls of 
 of course if it can be siiown ihat the arbitrators have been led ^I'l"^" ■ 
 into firror on a question of law, their award could be set aside 
 entirely, or modified as the case might require. P'or instance, if 
 they had erroneously awarded a specific sum for damages, 
 which the Court found they had no jurisdiction or right !)y law 
 to assess, the award might be reduced by that amount, and judg- 
 ment entered up for the balance, if any, appearing by the award ; 
 or if, on the contrary, they had refused to allow compensation to 
 which tlie party expropriated was entitled, the Couit might 
 increase the-amount accordingly. , 
 
 40. But the Court has not only power to decide questions of Questions 
 law, but to decide the facts upon the evidence taken before thc^l^f^cts. 
 arbitrators, " as in a case of original jurisdiction." 
 
 50. There has been a considerable amount of doubt as to I'ne I'linciples 
 principle which should govern courts in adjudicating upon epics- J'j'""''^'" 
 tions of fact upon these appeals, especially as to the ground^ interfere upon 
 on which the coarls would interfere with the discretion of the 'l"'<-'^''°"* °*^ 
 arbitrators as to ti->e amount of ti^e awaid, either in reducnig or 
 increasing it. In se 'oral instances, the judges of the Superior 
 Court in Quebec havo increased the amount of the award on 
 such appeals by the proprietor, purely on the ground that tlio 
 figures given by the witnesses, as being in their opinion the true 
 amount of compensation, siiowed a greater amount than that 
 which the arbitrators had awarded, (t) And in one case, the 
 judge Went so far as to take an average of ihe amounts sworn to 
 by tiie different witnesses for each side, and arriving at his judg- 
 ment by this rule of thumb, as it were, increased the amount of 
 the award by over $2o,ccj. (2) This method — for it cannot be 
 called a principle — was, however, strongly condemned liy the 
 Court of Appeals, (3) where the principle was laid down that the 
 
 (1) ////. A- A. IV. Ay. Cc. V. J.avallc'c, .S. C. M., 8ih Apl., 1889. Award 
 increased from $7,420 to $8,460. Keversed in Appeal, and award restored ; 
 (^. U., 17th January, 189I. •///. .\' A''. IV. Ky. Co. v. Zoc Descatrks , S.C. M., 
 1st Sept., 1891. Award reduced from $8,000 to $j,6o), Atl. .Ij' A'. W. A'y. 
 Co. V. WkilJUUi, S.C, ijtli .^e|i|,, 1890. Award increased from $2,Coo to 
 $5,000. Reversed in .\ppe»l, and award restored ; Q. li., 22nd iJec, 1893. 
 
 (2) Ju.lali r. A. & N. W. Ky. Co., 20 R. 1,. 527 (3) Ibid. 
 
 
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 courts sliould not substitute their judgment for that of the arbi- 
 trators, except in cases where they were shown to have fallen 
 into gross error, (i) and the Court restored the original award of 
 some $30,000. In another case oi Laval lee v. The A. & N. \V. 
 Ry. Co., (2) where both parties haJ appealed from the aw.ird, 
 and the Superior Court had increased the amount of the award 
 upon the proprietor's appeal, the Court of Appeals again res- 
 tored the award. Judge Boss6, in delivering the judgment of 
 the Court, said that while a careful perusal of the evidence led 
 him to the opinion that the amount of the award was about $1300 
 in excess of what he himself would have given, there was not 
 sufficient error shown to justify the Court in interfering with the 
 discretion of the arbitrators. He pointed out thattlie arbitrators 
 were persons chosen for their special knowledge and experience 
 in sucii matters, and that they had the advantage not only of 
 hearing the witnesses, and seeing the manner in which their tes- 
 timony was given, but also of examining the property and t'le 
 neighborhood, which facts, in his opinion, put them in a belter 
 position to decide on the amount of the award than the Courts. 
 (3) A number of cases have since been decided by the Quebec 
 Court of Appeals, (4) and the principle to be deduced from them 
 appears ;o be that, on an appeal, the Court will not interfere 
 with the discretion of the arbitrators unless gross error in law cr 
 in fact is shown, and that to disregard the award of the arbitra- 
 tors " it would be necessary to prove that they had been influ- 
 enced by improper motives, or that the evidence should show 
 conclusively that they had made an error, and that the award 
 was unfairly and certainly too low, or unjustly and undoubtedly 
 too high." (5) In so holding, the Courts have followed the Privy 
 Council m the case oi Morrison v. City 0/ Montreal, (6) That 
 was a case where the proprietor, who had been expropiiated, 
 took an action under the Statute governing expropriations by the 
 city> (7) to have the amount of an award, which had been fixed 
 
 (1) And see Lemoine 7'. Ciiy of Montreal, Allan v, Cily of Montreal, 
 Supreme Court, 31st May, 1894, 23 S. C, R. 390. 
 
 (2) y. B. Que., 17 January, 1891. (3) Ibid. 
 
 (4) M. & O. Ry. Co. V. Bertrand, Q. R., 2 Q. B. 203 ; M. & O. Ry. Co, 
 V. Castonguay, Q. R., 2 Q. B. 207; Can. Atl. Ry. Co. v Noriis, Q. R., 2 
 Q .B. 222 ; Wood 7' A. & N. W. Ry. Co., Q. R., 2 Q. B. 335. 
 
 (5) Per Wurif If J ., in M . & O- Ry. Co. v. Bertrand, Q. R., 2 Q. B, at p. 205. 
 
 (6) 3 App. Cas. 148. (7) 35 Vic, cap. 32. 
 
I 
 
 Eminent Domain. 
 
 205 
 
 
 by the commissioners under the Statute, increased. The Statute 
 providc^l in effect that such an action could be taken to increase 
 the amount of the award where there was "error" on tlie part 
 of the commissioners. The judge of the Superior Court nearly 
 doubled the amount of the award, and went upon the ground 
 that he was absolutely bound by the evidence adduced on the 
 action taken by the proprietor, for in that proceeding, the evi- 
 dence taken before the commissioners did not come before the 
 Court, but only the evidence taken in the action, (i) The Court 
 of Appeals reversed the judgmtnt, and the Privy Council con- 
 firmed the judgment of the Court of Appeals, holding that the 
 discretion of the commissioners should not be interfered 
 with, unless gross error was proved, and it was necessary 
 that the plaintiff in such an action should clearly prove 
 the error complained of. (2) That case was under a 
 Statute quite dissimilar from the one under consideration, 
 but the principle adopted by the Quebec Court of Appeals 
 on appeals under The Railway Act would appear to be the 
 same. In Ontario, where this right of appeal has existed 
 under a precisely similar clause of a Provincial Act (3) for 
 many years, the courts have laid down a definite and decided 
 rule to be followed in such appeals. They have said that the 
 intention of the Statute was not to make the judge appealed to 
 a substitute for the arbitrators; and that the amount awarded 
 by tlie arbitrators should not be increased or reduced, on the 
 weight of evidence merely, except in the cases where the Court 
 would increase or reduce the verdict of a jury : that is to say, if 
 the amount awarded should be so small or so excessive as to 
 make it evident that the jurors must have been influenced by 
 improper motives or led into error. (4) The cases in which 
 the verdict of a jury would be set aside by the Courts are prac- 
 tically the same under the Quebec law and the English law, and 
 the rule, that the same principle should be applied to an award 
 of arbitrators as that which would be applied to the verdict of a 
 jury, would seem to be a proper and safe rule, were it not for 
 
 (I) Ibid nt p. 157. 
 
 (3) 38 Vic, ca|). I5 0nt. 
 
 (2) 3 App. Cas. 148. 
 R. S. O. (1877), cap. 165. 
 
 (4) In ;-i« Can. Soutiiein Ry. Co. & Norvall, 41 U. C. Q. B. 195 
 see in re MacLean and The Niagara Falls Park, 14 Ont. A. R. 2o ; 
 Bush, 14 Ont. A. R. 73 ; and tlie Queen v. Paradis, i6 S. C. R. 716. 
 
 and 
 in le 
 
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 llie language of the Act, which says that the Court shall decide 
 questions of fact upon the evidence taken before the arbitrators^ 
 as in a case of original jurisdiction. 'I'lie inference to be drawn 
 from this language would appear to be that, upon such an ap- 
 peal, it is not a question of the Court substituting its discretion 
 for that of the arbitrators, but that the Court must examine and 
 weigh the evidence, and decide upon that evidence whether the 
 facts i)roved justified the award or otherwise, and adjudge 
 accordingly. It has already been held by our Courts in a 
 number of cases already cited, (i) that awards might be set 
 aside by action for grossly excessive or inadequate compensation, 
 but only in extreme cases. The intention of th.^ legisiauire in 
 giving a right of appeal on questions of fact seems to have been 
 to grant a larger remedy against awards of arbitrators under the 
 Act, than previously existed by way of action to set aside the 
 award. The effect of the interpretation placed upon this section 
 of the Act by the Courts in the ca^es before cited would tend 
 to nullify its provisions, and place the parly appealing in almost 
 the same position as though the remedy was limited to that 
 already existing by an action to set aside the award. The 
 remedy by way of appeal under the Statute would be little if at 
 all greater than that previously existing at common law. How- 
 ever, the Privy Council would seem to iiave affirmed the i)rin- 
 ciples laid down by the Quebec Court of Appeals in the case of 
 Acorn's V. The Cixiiada Atlantic Ry. Co. (2) Onan appeal to 
 their Lordships in this case, the judgment of the Court of Appeals 
 was confirmed. (3) But a careful examination of the judgment 
 of their Lordships in this case will show that the holding of the 
 Court of Appeals is not correctly stated. Sir Richard Couch in 
 delivoi ing their Lordships' judgment said : " The Court of Queen's 
 " Bench went fully into the matter, and laying down what they 
 '' considered to be the proper test of the value of the properly, 
 '• arrived at the conclusion that the award ought to stand. Their 
 " Lordships entirely agree in the judgment of the Court of 
 "(Queen's Bench." (4) It is tiue that the Court of Appeals 
 examined the evidence taken before the arbitrators, but the 
 
 (I) Supra p. 204. (2) Que. R., 2 Q. B. 222. 
 
 (3) Mussen v. Can. Atlantic Ry. Co , 17 L. N. 179. (4) 17 L. N. 180. 
 
I 
 
 Eminent Domain. 
 
 307 
 
 principle on which they went, to quote the language of Hall J. 
 in rendering the judgment of the Court, was as follows : " The 
 " experts selected and appointed in this .case appear to have 
 '' been men of more than ordinary experience. No insinuation 
 '' is made on either side against their probity and disinterested- 
 " ness. They must be presumed to have taken into considera- 
 " tion every reason and argument pro and con which were 
 " adduced before the Court below, and which have been sub- 
 •' mitted to us, and while a Court has clearly the right under 
 " The Railway Act, to reconsider the evidence and to vary the 
 '' decision of the experts or a majority of them, this power was 
 " clearly intended as a check only upon possible fraud, acci- 
 '■ denial ei or, or gross incom])etence, and never to be exercised 
 " unless in correction of an award, which carried upon its face 
 " unmistakable evidence nf serious injustice." (i) 
 
 After discussing the evidence the learned judge proceeded as 
 follows : " While we cannot assert that the amount awarded by 
 '' them is the precise conclusion, less or more, to which we would 
 " have arrived nad it fallen to us to m. '-e the preliminary valua- 
 " tion of these damages, we do not feel certain that any other 
 " result would have more accurately represented the real depreci- 
 " ation which the properly has sustained by this expropriation." 
 (2) This can hardly be said to be a decision upon the evidence 
 by the Court as in a case of original jurisdiction as provided by 
 the Act, The formal judgment of the Court reads as follows : 
 "Considering that it is not proved that in the awird there is 
 " error, doth dismiss the appeal." (3) The Court thus seems 
 to have followed the decision of the Privy Council iu the Mor- 
 rison case (4) under a different statute where it was necessary 
 th.at error should be proved by evidence adduced before the 
 , Appellate Court, and where the evidence taken before the arbi- 
 trators was not before the Court, The Lordships of the Privy 
 Council, however, evidently did not look with f;ivor upon ap- 
 peals in such cases as was said by Sir Richard Couch. " Tliey 
 " think, looking to the fact, that this v/as the decision originally 
 " of a majority of arbitrators, who were said in the judgment of 
 
 (1) Can. Atlantic Ry. Co. 
 
 (2) Ibid, p. 229, 
 
 (4) 3 App. Cas. r48. 
 
 Nonis, Que. R., 2 Q. 15. at p. 226. 
 (3) Hj'd. P- 229. 
 
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 The Railway Law of Oanada. 
 
 " the Court of Queen's Bench to have been experts, and to 
 " have been men of more than ordinary business experience, and 
 " looking further to the fact that the arbitrators had the advan- 
 " tage of seeing and hearing the witnesses who were examined 
 " before them, that an appeal from a decision given in such 
 " circumstances, upon a question which was merely one of value, 
 " is one which should be discouraged." (i) 
 
 Since ihe decision of this case, the question as to the true inter- 
 pretation to be placed upon this section of the Act has been 
 finally decided by the Privy Council, after full argument, in the 
 case of 7'/ic Atlantic <& Aorth West Ry. Co. v. Wood. (2) This 
 appeal was argued solely upon the ground, that under the Statute 
 the Court below should have examined and weighed the evi- 
 dence, and decided upon it whether the amount awarded was 
 justified ; and that the Court had failed to do so, and had pro- 
 ceeded upon the principles previously laid down by them in 
 the Norris ciise. Their Lordships held that the Court below 
 had sufficiently complied with the Statute. Lord Shand in 
 delivering the judgment said : — " The Court dealt with the 
 " award as one which it was their province to review on the 
 " facts as appearing on the evidence adduced before the arbi- 
 " trators, and in so doing in the opinion of their Lordships they 
 " acted rightly and in accordance with the statute. It would 
 " be a strained and unreasonable reading of the words of the 
 " statute, ' as in a case of original jurisdiction,' to hold that the 
 " evidence was to be taken up and considered as if it had been 
 " adduced before the Court itself in the first instance and not 
 " before the arbitrators, and entirely to disregard the judgment 
 " of the arbitrators and the reasoning in support of it. Such a 
 " reading of the statute would really make the Court the arbi- 
 " trators and the sole arbitrators in every arbitration in which 
 " an api)eal on questions of fact was brought against an arbi- 
 " Irator's award. It appears to their Lordships that this was 
 " not the intention of the Legislature, and that what was intend- 
 " ed by the statute was not that the Court should thus entirely 
 " supersede and take the place of the arbitrators, but that they 
 " should examine into the justice of the award given by them 
 
 (1) Per Sir R. Couch, 17 L. N. 180. 
 
 (2) 18 L. N. 140, II R, 26. 
 
Eminent Domain. 
 
 209 
 
 on its merits, on the facts as well as the law. Previously to 
 tliis enactment the Court had power only to approve of or set 
 aside the award of arbitrators. This might often cause much 
 expense and inconvenience in renewed proceedings before 
 the arbitrators, and the purpose of the Legislature seems to 
 have been to enable the Court to avoid this, by giving power 
 to make or rather to reform the award by correcting any 
 erroneous view which the arbitrators might have taken of 
 the evidence ; that, in short, they should review the judgment 
 of the arbitrators as they ^yould that of a subordinate Court, 
 in a case of original jurisdiction, where review is provided 
 for." (I) 
 
 Hi 
 
 iS' 
 
 51. The effect of the award as to costs depends upon the Costs of .iibi- 
 amount ofihe compensation awarded as compared with the amount Nation, 
 offered by the company. If the amount awarded is greater than 
 that offered by the company, the company must pay the costs, but 
 otherwise they must be paid by the proprietor,^ — that is to say, if 
 the amount is equal to ov less than the amount offered. In the 
 latter case, the costs may be deducted from the amount of com- 
 pensation awarded. {2) 
 
 Notwithstanding the apparently clear provisions of the Act on 
 this point, a serious question as to its interpretation was raised 
 in an Ontario case. 
 
 On the day that the arbitrators met, the railway company exe- 
 cuted an agreement for a crossing over the proprietor's land, in 
 addition tothe money payment, and it appeared that the arbitrators 
 took the matter of the crossing into consideration in making their 
 award. The amount of the award was less than the sum offered 
 by the company, and both parties claimed to be entitled to the 
 costs of the arbitration, — the company because the award was 
 less than their offer, and the owner because the value of the 
 crossing should be added to the sum awarded, which would 
 make it greater than the offer. It was held that under the cir- 
 cumstances neither party was entitled to costs. (3) 
 
 (1) 18 L.N. at p. 14s, II R.May at p. 31. 
 
 (2) Sec. 154. 
 
 (3) Ontario & Quebec Ry. Co. 7: Philbrick, 12 S.C.R. 288 ; $0. R. 674. 
 
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 'J"he Railway Law of Canada. 
 
 
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 The amount of the costs, if not agreed upon between the parties, 
 may be taxed by the judge, (i) These costs include tiie fees of 
 the witnesses, the arbitrators, (2) and of the counsel representing 
 the parties before them, and are practically within the discretion 
 of thf judge, and the decision of the judge in such a case cannot 
 be appealed from. He k a. persona desig^natu under the Act, and 
 consequently there is no a])peal from his decision. (3) 
 
 The Courts have refused to allow special fees to witnesses for 
 the time expended in examining the property prior to giving 
 their testimony, or preparing a report for the benefit of the party 
 in whose favor they were to give testimony. (4) The arbitrators 
 themselves seem to have no power under the Act to award costs 
 in favor of either jjarty. They can only assess the compensation 
 and damages to which the proprietor is entitled ; and awards 
 giving costs to either party have been held to be bad in that 
 respect, but may be abandoned as to the part awarding costs, 
 and remain valid as to the compensation. (5) The costs are to 
 be taxed by the judge, according to the amount of compensation 
 
 (1) Sec. 154. 
 
 (2) Arbitrators' fees may be referred to the master for taxation. Scott v. 
 G. T. N., 3 Ont. r. R. 276. 
 
 (3) The taxation of a bill of coils by a judge in chambers under the author- 
 ity of The (Quebec Railway Act is not subject to revision liy another jmlge 
 sitting in banc. Mailhiot et al. r. Burroughs, i L. N. 2qi ; 22 L. C. J. loo. 
 1878. 
 
 A judge of the Superior Court may, in his discretion, allow fees to counsel 
 on an arbitration to fix the indemnity to be paid for lands taken by a railway 
 company conducted under the provisions of The Quebec Railway Act, 4344 
 Vic, cap. 43, § 9, and there is no power in the Court to revis-e such taxation. 
 The Montreal & Sorel Ry. Co. r-. Vincent et al., Q. B., Nov. 24, 1884; 
 M. L R, 4 Q. Fi. 404; and see Jenkins f. Central Ontario Ry. Co., 4 
 O. R. 593 ; Can. Pac. Ry. Co. v. Seminary of .'^te. Tl ertse, 16 S. ('.. R. 606; 
 and /// re Kingston & Pembroke Ry. Co. v. Murphy, II Ont. P. R. 304. 
 
 (4) Atlantic & N. W. Ry. Co. v. Walker, No. 216 S. C. M, 20th April, 
 18S9 
 
 (5) Held, no objection to award that arbitrators awarded costs, for if un- 
 authorized it was separable from the rest of the award. Widder 7'. Buffalo 
 & Lake Huron Ry. Co., 24 U. C. Q. B. 520. 
 
 The assessment of costs by arbitrators named under the provisions of the 
 Statutes does not vitiate their report. Tremblay '•. The C. &. St. L. Ry. Co., 
 5 L. C. R. 219, Q.B. 
 
 Arbitrators, in addition to other findings, awarded the plaintiff all the costs 
 of reference and award. 
 
 Held, that part of the second award directing payment of the costs of the 
 reference and award was bad, but might be abandoned. Rector and Church- 
 wardens of St. George's Parish 7\ King, 2 S. C. R. 143. 
 
 Xt^,: 
 
Eminent Domain. 
 
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 ting 
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 linot 
 
 and 
 
 awarded by the arbitrators, and they have no discretion in the 
 mntu-r wliatsoever. No provision is made for the recovery of 
 costs, but only for tlieir taxation. Tlie Courts will therefore 
 refuse to make im order for payment of such costs, the remedy 
 being by action of debt on the statutes, (i) 
 
 53. Questions have arisen as to interest upon the amount of Interest, 
 the com])ensation, and have excited some discussion in our Courts. 
 It has been urged with great force that where the company 
 took property which was producing fruits or revenue, it was 
 bound to pay interest on tiie value of tiie property from the date 
 of the taking of possession. And the principle involved in this 
 contention cannot be doubted, for it has often been held that 
 where a party agrees to sell a property producing revenue, and a 
 price is agreed upon, the buyer is bound to pay interest from 
 the date of his taking possession of llie property, even though the 
 actual deed of sale for the price agreed upon is not executed 
 until a later date. It has been therefore urged that the proprietor 
 is entitled to interest upon the amount of the award from at least 
 the date of taking possession, if not from the date of the deposit 
 of the plan, which, as has been already pointed out, is the date 
 fixed by the act with regard to which the compensation is to be 
 assessed. And in cases where the company had paid money in- 
 to Court, in order to obtain possession of the property before the 
 rendering of the award in the manner provided by the act, (2) 
 
 Where the Land Clauses Consolidation Act contained special provisions 
 respecting claims for compensation for lands afTected by the works of a rail- 
 way, and directed that (except in certain special cases) compensation should 
 be awarded with costs, and where the special Act declared that the provisions 
 of the general Act were, "except where expressly varied by the special Act." 
 incorporated with it ; and where the general Act provided that the compen- 
 sation awarded might be recovered with costs, but the special Act contained 
 no specific directions as to the award and costs, and where the arbitrator in 
 awarding compensation said nothing about costs, Held, that the claimant 
 was entitled to costs. 
 
 Held, also, that the right to costs was entirely independent of the taxation 
 of them, and an action could be maintained for the costs, although the amount 
 of such costs had not been previously settled or ascertained, and consequently 
 an order for the taxation made by the learned judge on giving his judgment 
 for the plaintiff was a valid order. Metropolitan District Ry. Co. t'. Sharpe, 
 L. R., 5 App. Cas. 425. 
 
 (1) In re Foster and G. W. Ry. Co., 32 U. C. Q. B. 503. 
 
 (2) Sec. 164. 
 
 \ 
 
212 
 
 The Railway Law ok Canada. 
 
 I':?' 
 
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 Award as a 
 title to the 
 lands. 
 
 on several occasions the Courts have allowed interest to the pro- 
 l)rieior, upon the amount of the award from the date of taking 
 possession, (i) This would not seem to be in accordance 
 with sound principle, inasmuch as the amount of the award in- 
 cludes not only the value of the land taken, but the damages to 
 tl^c remaining portion of the land, of which the proprietor had 
 not been deprived of the use, and which were not due or owing 
 by the company until they had been assessed. In any event, 
 the proprietor would only be entitled to interest upon the value 
 oi the land, and that only from the date at which he had been 
 deprived of the use or enjoyment of it ; and the answer to the 
 claim of the proprietor"to receive such interest in addition to the 
 amount of the award would be that this deprivation of use and en- 
 joyment was a damage consequent upon the exercise of the powers 
 of the railway,which the arbitrators had power to assess, and which 
 they must have been presumed to have assessed by their award. 
 (2) The question has now been finally decided by the Court of 
 Appeals in the case of Rehurn v. The Ontario <& Quebec 
 Eailway Company, (3) confirming the judgment of Mr. 
 Justice Tait in the Superior Court. (4) That learned judge 
 held, upon an action by the proprietor to recover interest in ad- 
 dition to the amount of the award from the date of the deposit 
 of the plan, that it being within the scope of the powers of the 
 arbitrators to award interest for any loss of enjoyment which the 
 proprietor might have suffered, it must be presumed that the 
 arbitrators had taken this into consideration, and that the pro- 
 prietor could not go back of the award and claim interest which 
 was really part of the damages which the arbitrators had power 
 to assess ; and his judgment was unanimously confirmed by the 
 Court of Appeals. 
 
 53. It U provided by section 162 of the Act, that upon pay- 
 ment or tender of the amount of the compensation awarded or 
 agreed upon, the award itself or the agreement shall vest in the 
 
 (1) A. & N. \V. Ry. Co. '•. Prudhomme, M. L. U., 2 S . C. 21 ; re Phil- 
 brick ?■. Ont. & Que. Ky. Co., n Ont. P. R. 373; re Taylor v. Ont. 
 & Que. Ry. Co., ibid, 371 ; re Lea, 21 C. L. J. 154. 
 
 (2) Paradis z'. The Queen, I Ex. (Can.) 191. 
 
 (3) M. L. R., 6 Q- B. 381 ; and see A. & N; W. Ry. Co. v- Leeming, 
 Q. R., 3 Q. 13. 165. 
 
 (4) M. Li R., S S. C. 211. 
 
 / 
 
Eminent Domain. 
 
 213 
 
 company the power to take possession of the lands, or to exercise 
 the powers upon the lands which the company have specified in 
 their notice, or which the proprietor has agreed that they should 
 exercise. In the case of resistance by the proprietor, the company, 
 on application to a judge, may obtain a warrant to the sheriff or to 
 a bailiff to put the company in possession, in spite of any resistance 
 or opposition. The compensation fixed by the award stands 
 instead of the lands under sec. 166 of the Act, and any claims 
 upon the property, such as mortgages or hypothecs, are converted 
 into a claim upon the money awarded, and the company ate only 
 responsible if they pay ."..ly part of the award to any person not 
 entitled to receive it, saving their recourse against such person. ( i ) 
 
 In Ontario it has been held that this section applies only where 
 the compensation has been actually ascertained and paid into 
 Court. (2) 
 
 A railway company had, under a warrant of a County Court 
 judge, taken possession of a portion of mortgaged lands, and 
 had constructed their railway thereon, and an arbitration had 
 been held between the company and the mortgagors ; but at the 
 time of the bringing of an action by the mortgagees, the award, 
 though made, had not been taken up by either party. The 
 mortgagees (plaintiffs) had received no notice of, and had taken 
 no part in the arbitration proceedings, and had not given any 
 consent to the taking of the possession. The plaintiffs brought 
 an action against the railway company and the owners for fore- 
 closure, offering in their claim to take the compensation awarded, 
 and release the lands in the possession of the railway company. 
 In the first Court, Sir Thomas Gait, C.J., gave the usual judg- 
 ment for redemption or foreclosure as against the mortgagor, 
 but dismissed the action as against the railway company, hold- 
 ing that as to them it was in effect an action in ejectment, and 
 that any claim to the lands was by force of subsection 25 of 
 section 20 of The Railway Act of Ontario, R. S. O., ch. 170 
 (section 166, The Railway Act), converted into a claim against 
 the compensation. In the Court of Appeals, however, this 
 judgment was reversed. (3) 
 
 (1) See supra, p. 143. 
 
 (2) Scottish Amer. Investment Co. v. I'rettie, 20 Ont. A. R. 398 ; but see 
 Clarke v. Grand Trunk Ry. Co., 35 U.C. Q. 15. 57 ; Chewett v. Great 
 Western Ry. Co., 26 U. C. C. P. M8. 
 
 (3) Scottish American Investment Co. v. Prettie, 20 Ont. A. R. 398. 
 
 
 } Hi 
 
 H 
 7, f.i 
 
M 
 
 2 1.) 
 
 TiiK Raii.wav I-aw of Canada. 
 
 It- 
 
 '\\ 
 
 I 
 
 111 
 
 
 I 
 
 K I 
 
 m i4 
 
 Mi ■ 
 
 1 
 
 < )slc'r, I.A., for llie (ioiiit, xaid : " Tlic incumbrancer is, in my 
 (Opinion, in sucli case entitled to proceed upon his mortgage in 
 tlie usual way. It canncil be said that the compensation lias 
 already been ascertained, and until tliatlias been done, it appears 
 to me that subsection 25 of section 20 R. S. (J., ch. 170, cannot 
 be invoked by the company against the incumbrancer. 'I'he 
 company always have it in their jKjwer to bring it into operation 
 by proceeding with their aibilration and taking up the award. 
 Subsection 23 tiien enables tiiem to defend iheniielves against 
 further proceedings by the incund)ra;icer, by paying the amount 
 awarded ' to the party entitled U) the s;;rne,' who is by sub-section 
 25 the incumbrancer to the amount of his claim. 
 
 " It is not for liie latter to take up the award, paying tiie 
 arbitrator's charges which he would jjrobably have no right to 
 recover back from anyone, but it is for the company to entitle 
 themselves to possession, or to defend themselves from furilier 
 l)roceedings, by ascertaining and paying tiie amount of compen- 
 sation. 
 
 '■ When the award has been taken up, the incumbrancer 
 is no doubt entitled to recover the amount from the railway 
 co:npany [Diinlop v, 'Io7viiship of York) ; (i^ but until that has 
 been done, it is difficult to see what remedy the investment 
 company would have if they are not entitled to enforce their 
 mortgage 
 
 '• The appeal should therefore be allowed, and an or'' 
 declaring that the plaintiffs are entitled to the usual jud_ . ui 
 a mortgage action, but that upon payment of the amount a., ided, 
 the lands in occupation of the company should be released from 
 their mortgage." (2) 
 
 In order to provide a means by which the company should be 
 enabled to avoid any case of this kind, it is provided by the Act 
 (3) that if there is any reason to fear any such claims upon the 
 property, or if the proprietor refuses to execute a deed of sale or 
 give a guarantee against such claims, or if the persons entitled to 
 payment cannot be found, or in fact if, for any other reason, the 
 
 (1) 16 Grant Cli. 216. 
 
 (2) 2jOnt. .\. R. at 1J.402 ; anJ see /// ;r Toronto belt Line Ry. Co. and 
 Western Can. L, iS: S. Co., 26 O. K. 413. 
 
 (3) Sees. 167-170; and see (•ec. 140. 
 
 
K.MiNENT Domain. 
 
 2»5 
 
 company think it advisable, (i) they may p.iy the amount of tlie 
 award into court witli interest for six months, tliat is to say, 
 for six montiis from thi." date of the award, with a cojjy of tlic 
 award. On such deposit, the aw.xrd is etiuivalcnt to a title to the 
 property in favor of the company; and thereupon proccc(hngs are 
 t,\ki.'n for the confirmatioii of the title in tiie same way as in any 
 other such case, with the only diffvircncc that in tiie notice which 
 the ]uothonotary or clerk of the court is required to give, he 
 mu-t state that the title of the company is \mder the Railway 
 Act, and call upon all persons to file their claims, and then the 
 claims are' settled by the court. A judgment of confirmation 
 being rendered on these proceedings, the company is given a |)er- 
 fccl title to the land, clear of all claims of any kind whatsoever, 
 including not only mortgages, hypothecs and encumbrances of 
 every description, but also of dower not yet oi)ened ; and the 
 court is given power to make such order for the payment and 
 distribution of the money as it may see fit amongst the parties 
 entitled to it. The court lias power to order the payment of 
 costs either by the comi)any or any other person, as it may see fit. 
 As to interest, if the judgment is obtained in less than six months 
 from the payment of the amount of the award into court, a ])ropor- 
 tionate amount is returned to the company, and if from any fault 
 or neglect of thecom])any it is not obtained within that jjeiiod, the 
 company must pay in to the prothonotiry the interest for such 
 further period as is right, according to the order of the court. (2) 
 As has been pointed out, upon payment into Court of the amount 
 of the award, the company can take possession at once; but even 
 before the rendering of th j award, the comp.iny can obtain pos- 
 session under sec. 163 upon a warrant granted by the judge, upon 
 affidavit sufticient to satisfy him that immediate possession of the 
 property is necessary to carry on some part of the works of the 
 railway with which the company is ready to proceed at once, (3) 
 
 (i) As to what would constitute a sufficient reason, see Cawthra t. Hamil- 
 ton .S: N. W. Ry. Co,, 41 U. C. q. B. 187. 
 
 (2) As to further interest see Judah v. A. & N. NV. Ry. 23 S. C. R. 231 ; 
 and in re Foster and Gt. \V. Ry, Co., 32 U. C. Q. H. 503. 
 
 (3) It must be clearly established that the company has an indisputable 
 right to acquire the land by compulsory proceedings ; and that there is some 
 urgent and substantial need for immediate action. /« re Kingston & Pem- 
 broke Ry.Co. and Murphy, II Ont. P. R. 304. There is no remedy by way 
 of appeal from the order of a judge under this section, unless the company is 
 seeking to attain an object collateral only to that for which it was incorporated. 
 Hid, and Jenkins v. Central Ont. Ry, Co., 4 O. R. 593. 
 
 'A 
 
 I' HI 
 i 11 
 
 'm 
 

 216 
 
 The Railway Law of Canada. 
 
 m J it 
 
 ill. 
 m 
 
 Irri 
 It'W 
 
 and this warrant may be granted noi only for land which is to be 
 taken for the actual construction of the railway thereon, but for 
 any land which is required for the exercise of any of the powers 
 of the railway, such as the obtaining of material for its construc- 
 tion, etc. But this provisional warrant of possession ran only be 
 obtained on certain conditions. Under sec. 164, ten days' pre- 
 vious notice must be given to the proprietor, or the person inter- 
 ested in the property, and security must be given by the company 
 to the satisfaction of the judge, by the deposit in a bank specified 
 by the judge, to the joint credit of the company and the person 
 interested, of an amount larger than the judge's estimate of the 
 probable compensation, and not less than one-half more than the 
 amount offered by the company by their notice. 
 
 These provisions of the Act are in accordance with the prin- 
 ciple generally recognized in civilized countries, that no indivi- 
 dual can be deprived of his property, except for purposes of 
 public utility, and upon previous payment of indemnity. Under 
 the Act, a railway company cannot take possession of any per- 
 son's property, without either paying the amount of compensation 
 agreed upon, or fixed by an award of arbitrators, or without 
 paying in to a bank, as security, under an order of the judge, an 
 amount amply sufficient to cover the indemnity which may be 
 finally fixed or agreed upon. This principle has been so far 
 upheld by our Courts that it has been frequently decided that, if a 
 railway company take a property for the construction of its road, 
 without having given compensation or security as provided by 
 the Act, the company cannot only be sued by the proprietor for 
 compensation (i) or by possessory action to obtain poss- ,5ion 
 of the property taken, and to compel the company to vacate, 
 but the company may be resttained by injunction from operating 
 its railway across such property. (2) These decisions are merely 
 
 (1) Parkdalc 7: West, 12 App. Cas. 602 ; I'ion ?'. N. S. Ry.Co., 14 App. 
 Cas. 612 ; Mason ?'. .South Norfolk Ry. Co., 19 O R. 132. 
 
 (2) Brewster r.Mongeon, M. L.R. 3 Q. B., 20; Beaiiharnoisjunc. Ry. :■. 
 Bergevin, 17 R. L. 113; Cathedral of the Holy Trinity r. West. Ont. Pac. 
 Ry.Co., 14 O. R. 246 ; Cie.de Ch. de i'er Cenu...l ?■. Legcndre.ll (,). L. R. 
 106, (J. B. If, Iiowever, an award has been made, bi'.t the amount iias not 
 been paid or put into Court, the proprietor is not entitled U) an injunction nor 
 to an order for possession , but to a ,udgment declaring him to have a vendor's 
 lien on the property, with fuch provisions as aic necessary to realize by means 
 of a sale. .Slater r. Can. Central Ry. Co., 25 Gr. Ch. 363 ; Lincoln Paper 
 
m 
 
 Eminent Domain. 
 
 in accordance with the principle that a -'l-y-^L^eilla- 
 exercising the powers of eminent doma.n granted by he Leg^ 
 tare, must conform strictly to the <^o"dmons imposed by Parha 
 ment, and that every individual whose "g^U °f pro^rj a 
 invaded by the railway company in excess of those povNers, is 
 entitled to redress at the hands of t .e Courts. 
 
 ;;;;;;:^:i^Cathari„es^& Nia^a^a Ry. Co .9 O.K. 106^. /.^uTrLSt. 
 
 -^. Erie & Niagara Ry. V^" V^^ V2, 'Hro— ^^ Can- Central Ry. Co.. 
 
 Lake Huron Ry. Co., 17 (.r. Ch. 521 ; |,»'"™1?'"" ' '^0 M. L. K., 1 S. C. 
 
 150 ; confirmed 
 
 n,q«p d'Hochelaga r. m . . cv. - "j ■ j ^^^ ^^tly 
 
 . in appeal, 19th January, i884- As to uo ^, i,j^„,i „ 
 
 Geni.'.. Midland Ry. Co., SO-R.^V' f',*^' °^.,^. H;oth r. Mclrtyre 
 
 Genl.'./. Midland Ry. Co., 3U. K.51'; ;"'l^-"' . Booth -'• Mclrtyre, 
 Buffalo & Lake Huron Ky. Co., 30 U.C. Q. b. 147 - 
 31 U. C. C.r. 183. 
 
 
CHAPTER VI 1[ 
 
 CONSTRUCTION ( )I'' TIIK RAILWAY. 
 
 5" 
 
 CONTRACIS I'OR CONSTRUCTION. 
 
 1. (,'ciierally. 
 
 2. /'onn of—Neces.nty of set I, etc. 
 
 3. Coniiitioiis itnd stipiila/ioiis . 
 
 4. Construction of farticidar con- 
 
 tracts — /-Aide nee ^-Quality of 
 i-'ork — Ctniii! for increased 
 price. 
 
 5. /<ond — Condition — i]fiitiiiility. 
 
 6. Evidence of contract — Ratifica- 
 
 tion — (^/'. tiin j\'r the Jury. 
 
 7. Ratification o''coi, tract — Repudi- 
 
 ation of pari. 
 
 8. Condition precedent — Indefend:nt 
 
 agreement. 
 
 9. Contractor purchaser of land for 
 
 construction — Title, 
 
 10. .Ipportionment — [.and grant — 
 
 Subsidy. 
 
 1 1 . Specific performance. 
 
 LIMUI.ny ' !•• COMPANY FOR ACTS 
 OF CONTR^CIOR^. 
 
 4- 
 
 DAMACE CAUSKD l!Y CONS I RUC ITON 
 OF RAILWAY. 
 
 1. Interference with ditches and 
 
 watercourses. 
 
 2. Surface -water. 
 Quebec Law. 
 Obstruction and dir'ersion of 
 
 'water-courses , 
 
 5. jVaT'igable wateis, 
 
 6. Sniisci/uent purchaser of land. 
 
 7. Duty of t tie Croivn. 
 
 lUUlIWAVS. 
 
 I . Interference with, 
 
 z. Approval of Railway Committee, f 
 
 3. /iri/ges connecting' //iglrw.iys. 
 
 4. Signboards. 
 
 FARM CROSSINC.S. 
 
 liRlUGKS, TU.NNELS, ETC. 
 
 FENCES AND CATTLE GUARDS. 
 
 INTERSECTION OK RAILWAYS. 
 
 I'RKSCRIPTION OR LI.Mll'ATlON OF 
 ACTIO';s. 
 
 iiM 
 
 I 
 
 Gener.illv. 
 
 1- 01 m of — 
 necessity i 
 seal, etc. 
 
 Contracts for Coustruction. 
 
 1, Railways are generally constriicled in this country under 
 contracts made wit!i contractors for the whole, or different parts 
 of the works. vSonietimes, though comparatively seldom, the work 
 is done by the compare under the supervision of their engineers 
 and a manager of cot auction. It is under the first mentioned 
 system that most of the questions calling for judicial interpreta- 
 tion have arisen. 
 
 2. No special form of contract is necessary, unless there is 
 f express provision in the charter or liy-laws as to the form. There 
 
CoNSTRUCriON OK THE RAILWAY. 
 
 219 
 
 is much divergence of opinion as to the necessity for contracts 
 being executed under tlie seal of tlie company, in order to be 
 vahd and binding upon the company. While it is usual to afti.x 
 the company's seal, it is by no means clear that it is essential to 
 the vrwlidily of the contract, especially in this country. 
 
 The undoubted rule of the early common law was that a 
 corporation aggregate must, in general, contract by deed, and 
 could not bind itself by parol. As regarded municipal and 
 ecclesiastical corporations, exceptions to tlie above rule were from 
 very early times aliowcu in order that they might be enabled, 
 without the formality of sealing, to transact matters of minor 
 importance and of daily occurrence. 
 
 As iegards trading corporations, the exceptions to the rules 
 at comi ion law have gradually and largely extended ; " for the 
 doctrine now is," says Mr. Broom (i) writing in 1869, "that 
 a body corporate, established for the purpose of trading, may 
 make all such contracts as are of ordinary occurrence in that 
 trade, — irrespective of the magnitude of the particular transac- 
 tion — without the formality of a seal, and that the seal is required 
 only in matters of unusual and extraordinary character, which 
 are not likely to arise in the routine of business." (2) 
 
 In the United States the rule has almost, if not entirely, dis- 
 appeared. (3) 
 
 Mr. Dillon in his work on Municipal Corporations (4) states 
 the law thus : — " The modern rule is that corporations may be 
 bound by contracts not under seal, and the circumstances under 
 which they will be bound have been stated by Story, J., in 
 terms which have been approved by the courts in nearly every 
 Slate in the Union. Whenever a corporation is acting within 
 the scope of the legitimate purposes of its institution, all parol 
 contracts made by its authorized agents are express promises of 
 the corporation. (5) This is practically the view adopted by 
 our Supreme Court in the case of Bcnianiiii v. Municip- 
 
 ; 
 
 m 
 
 1 ■ r 
 
 n) lirooni, Common I-a\v, p 563. 
 
 (2J CiUiij; Soiuh of lieliin I Co. :\ W .uUlIc L. R., 3 C. 1'., 463, 469, 
 474, vvhtie the cases are con^it'eioil. 
 i},) rarsoirs CoiUiacis (1S92), \'ol. I, p. 13), I ReJiielil, S II ;. 
 (4) 4lh Edii., j 192. 
 (3) Also Cook on St )ckholilers and Corp. Law (1SS9), § 721. 
 
 >'k] 
 
 >! ti 
 
i 
 
 1 -ri 
 
 
 un 
 
 220 
 
 The Railway Law of Canada. 
 
 (T/i/}! of North Dufferin. (i) But this case only settled the point 
 in so far as it relates to executed contracts, the difference be- 
 tween executory and executed contracts b'jing recognized. Lord 
 Justice Lindley, in his late work upon the law of companies, (2) 
 treats this distinction as exploded, stating " a distinction was at 
 one time supposed to exist between executed and executory con- 
 tracts ; but except where the equitable doctrines of part perform- 
 ance are applicable, a corporation is no more bound by a con- 
 tract not under its seal, of which it has had the benefit, tlian it is 
 by a similar contract which has not been acted upon by either 
 party." Gwynne, J., in the Bernardin case states it as his opinion 
 that it is sound law to hold that the principle contended for in 
 that case applies both to executory and executed contracts, and 
 that such is the sense of the best English cases. Patterson, J., 
 in the same case, (3) said : — " The question, whether an executory 
 contract made by the council of one of these municipalities, not 
 under the corporate seal, can be enforced against the corpora- 
 tion, should, I think, be considered as an open question. It is 
 not necessary now to decide it because this contract is executed. 
 It has not for the same reason been fully argued. I therefore 
 say no more with regard to the point than that there is room 
 for argument on both sides of the question." 
 
 The law in this country upon the point in question, so far as 
 it relates to executed contracts, must be regarded as having, 
 from the earliest days, departed from the English doctrine, and 
 approached that of the United Statjs. In Pim v. the Municipal 
 Council of the County of Ontario^ (4) a case involving exactly 
 the same point as the Bernardin case. Chancellor Blake remarked 
 that " the present state of the law upon the subject is a reproach 
 to the administration of justice in England. It may be that the 
 evil calls for legislative interference; but if the legislature will 
 neither declare the law nor alter it, courts of justice are bound 
 to place their decisions upon some principle intelligible to the 
 public and sufficient for their guidance ; '' he then proceeds to 
 review the EngHsh cases, noting the divergence of opinions, and 
 
 (1) 19 S. C. R. 581, and see Canada Central Ry. Co.r'. Murray, 8 S. C. R. 
 
 (2) p. 226. (3) p. 635. 
 (4) 9 U. C. C. 1'. 302. 
 
Construction ok the Railway. 
 
 221 
 
 ends by adopting the view concurred in by the courts of Ontario 
 for the last thirty years, and finally upheld by the Supreme Court 
 in the Bernardin case. In the course of his judgment the learned 
 chancellor made the following argument : — "It is now well 
 settled that corporations aggregate are liable in tort, although 
 there has been nothing under the common seal authorizing the 
 agent or adopting his acts ; again, when land has been used and 
 occupied by a corporation, the law implies a promise to ])ay a 
 reasonable compensation ; and when money has been wrongfully 
 received, assumpsit for money had and received may be main- 
 tained. Now, if trover and trespass may be maintained under the 
 circumstances to which I have alluded, and if the law implies a 
 contract when land has been used, or moneys wrongfully re- 
 ceived, it is difficult to understand why the same principle should 
 not be applied wherever the contract being legal has been 
 executed, and the corporation has received all that it could have 
 demanded if there had been a contract under the corporate seal. 
 The argument seems to me, I must confess, conclusive." But 
 the learned chancellor, it will be noted, draws a distinction be- 
 tween executed and executory contracts. It is noticeable that 
 Canadian cases, holding that the corporate seal is not necessary 
 to the enforcement of an executed contract, proceed chiefly upon 
 the equitable ground that the corporation, having received 
 the benefit of the contract, they are estopped from repudiating it, 
 and not upon the general ground that the seal is no longer a 
 necessary formality of corporate contracts. As to executory con- 
 tracts, the question, as stated by Patterson, J., in the Bernardin 
 case, is an open one. 
 
 In this connection it was held in a Manitoba case (i) that 
 the engagement by a railway company of a civil engineer was not 
 binding upon the corporation, not being under the corporate seal. 
 In this case it was admitted, in accordance with the English 
 authorities, that an inferior servant can be retaincl by parol, 
 but that it was clear the plaintiff in this case could not be called 
 an inferior servant. 
 
 In an Ontario case (2) it was held that a clerk hired for a 
 
 (i) Armstrongs. Tortage, ^Yestbourne & North West Ry. Co., i Man. 
 344(1884), Q. 15. 
 
 (2) Hughes r. The Canada Permanent Investment, etc., Soc, 39 U. C. 
 Q. B. 221. 
 
 
 It, 
 
 ■f <i 
 
 4 
 
i 
 
 <\ '4' 
 
 222 
 
 The Railway Law ok Canada. 
 
 |5fJ 
 
 year al $800 per annum could not sue for dismissal within llie 
 year for the same reason as the above. 
 
 These, and another Onlario case not reported, (i) were all 
 based upon tlie English decision of Austin v. The Giuvdiaiis of 
 Betliual Grec'i, (2) where it was held that ])oor law gi.ardians 
 are not bound by an unsealed agreement engaging a clerk. But 
 it is surely erroneous to apply the case of this class of cor])orations 
 to that of modern commercial corporations and railway com- 
 panies ; and in ihi'; country, the above decision, holding that the 
 hiring of a clerk at $.Soo per annum must be under the corporate 
 seal, would at this date be wholly untenable, and even impos- 
 sible. 
 
 Probably the future rule adopted in this country will be that 
 adopted by Pollock, B., in The Australian Steam Navigation Co. 
 V. Marzetti, (3) and approved by Gwynne, J., in the Bernardin 
 case, viz.: — "It is now perfectly established by a series of 
 authorities, that corporations may, with respect to those matters 
 for which they are expressly created, deal without seal. 
 This principle is founded on justice and public convenience, 
 and in accordance with common sense." The same view was 
 taken in the United States in the case of Fleckntr v. United 
 States Bank, (4) where it was urged that a corporation could not 
 authorize any act to be done by an agent by a mere vote of the 
 directors, but only by an appointment under its corporate seal. 
 But the court declared that such a doctrine, whatever may have 
 been its original correctness as api)lied to common-law corpora- 
 tions, had " no application to modem corporations created by 
 statutes, whos; charters contemplate the business of the cor- 
 poration to I . transacted by a special body or board of directors : 
 and the acts of such a body or board, evidenced by a written 
 vote, are as completely binding upon the corporation and as 
 complete authority to their agents, as the utmost solemn acts 
 done under the corporate seal." 
 
 In the recent Supreme Court case of The IVaterous Engine 
 Works Conpany v. The Corporation of the Toivn of Palmers- 
 
 (1) Washbourne r. The Canada Car Co., referred to in a note at ]). 299 
 of the former case. 
 
 (2) L. K. 9 C. P. 91. (3) II Ex. 22S. 
 (4) 8 \Vhe.at. (U. S.) 338, 357. 
 
Construction oi' the Railway, 
 
 223 
 
 ton, (i) tlie Bernardin case was distinguished; but Patterson, T.» 
 staled tliat the general doctrine touching the mode in which a 
 corporation can be bound by contract was not really in question. 
 
 Conformably to the above views, it has been held in Ontario 
 (2) that a railway can appoint an agent to negotiate for and 
 obtain municipal aid by a resolution of the board of directors, 
 without the formality of a by-law or seal of the company. Also 
 in The Hivnilton & Port Dover Ry. Co. v. The Gore Bank, (3) 
 it was held that a railway company, being indebted to a bank, 
 the officers of the company had authority to arrange with the 
 bank, that the latter had authority to garnish certain debts due 
 to the company, without a resolution of the board of directors, 
 and that the same need not be under the corporate seal ; on the 
 other hand it was held in an early Ontario case, (4) that an agree- 
 ment made by a railway company, through their attorney, to com- 
 promise a suit instituted by plaintiff, on certain terms, was not 
 binding upon the company in the absence of the corporate seal. 
 But it was held in a New Brunswick case, (5) that notice by 
 a company's solicitor to the sureties on a bond, conditioned 
 for the fidelity of a clerk in the company's employ, to the effect 
 that 'he clerk had made default, did not require to be under the 
 seal of the company, neither did the solicitor's appointment. 
 
 Also in Nova Scotia, that where work is done within the ordin- 
 ary range of duties of a corporation, a contract under seal is not 
 required. (6) In an Ontario appeal case, it was held that a ver- 
 bal contract made between a ra'lway company and a person to 
 manage one of their steamers need not be under seal. (7) 
 
 But where an agent was hired by a railway compiny to obtain 
 bonuses from municipalities, and the only evidence of the hiring 
 was a letter written by one of the directors, stating that at a meet- 
 ing of the board he was directed to make arrangements with the 
 plaintiff to proceed forthwith, and it was shown that the presi- 
 dent had recognized and adopted his services, and partially paid 
 
 (1) 21 S. C. R. 556. 
 
 (2) Wood V. The Ontario & Quebec Ry. Co., 24 U. C. C. P. 334. 
 • 3) 20 Giant Cliy. 190. 
 
 (4) Doian V. The Great Western Ry. Co., 14 U. C. Q.B. 403. 
 
 (5) The Mechanics' Whale Fishing Co. v. Kirby, I All. 223. 
 
 (6) Mcintosh re Commissioners of the Court House at Halifax, 20 N. S. 
 
 (7) Ellis V. The Midland Ry. Co., 7 Ont. App. 464. 
 
 I 
 
 
 430. 
 
 
M 
 
 i f 
 
 224 
 
 The Railway Law ok Canada. 
 
 I '■ 
 
 1 1 
 
 !i ; 
 
 therefor; -t was held that this was not a sufficient proof of the 
 l)laintifrs engagement, or of the acceptance of his services by 
 the company, (i) In Quebec, however, the engagement by a 
 railway company of a civil engineer, for carrying out the works 
 of a railway, is held to be a commercial contract, and may be 
 proved by parol. (2) In Canada Central Raihvay Co. v. Mur- 
 ray (3) a contr. ct for fencing made with the Company's managing 
 director was 1- ;ld valid although not under seal. And amongst 
 other decisions holding a seal to be unnecessary may be cited 
 the following Ontario cases. To a declaration alleging that the 
 plaintiffs entered into an agreement with the defendants to per- 
 form certain stone work, which they partly performed, and 
 averring as a breach that the defendants had prevented them from 
 carrying out and completing \\v. work, whereby, etc., the defen- 
 dants pleaded the plaintiffs were an association incorporated 
 under R. S. O. (1877), c. 158, and that the agreement was not 
 under the plaintiff's seal, it was held, on demurrer, that the plain- 
 tiffs being a trading corporation, enough was not shown to make 
 the absence of a seal fatal to the validity of the agreement. (4) 
 
 In another case the plaintiffs were a company incorporated 
 under C. S. C, c. d^^, and 24 Vict., c. 19, for the manufacture 
 and sale of cheese, etc. On the loth August, 1878, a written 
 agreement was entered into between one C, the plaintiffs' secre- 
 tary and salesmm, and one M., on behalf, as was stated, of the 
 plaintiffs and defendants respectively, and which was signed by 
 C. and M. for the sale of the whole of the plaintiffs' July cheese, 
 as also of their August, September and October cheec , at prices 
 named : it was held, that the plaintiffs being a trading corporation, 
 and the contract one specially relating to the objects and pur- 
 poses of the company, it was binding upon them, though not 
 under seal. (5) 
 
 And it has also been held that a contract made verbally by the 
 president of a company with the plaintiff, engaging him for 
 
 (1) Wood V. The Ontario &. Quebec Uy. Co., 24 U. C. C. P. 334. 
 
 (2) Legge V. Tiie Laurentian Ry. Co., 3 L. N- 23. 
 
 (3) 8 Can. S.C. R. 313. 
 
 G (4) Ontario Co-operative Stonecutters' Association v. Clarke, 31 U. C. C. 
 ]'. 280. 
 
 (5) Albert Cheese Co. v. Learning, 31 U.C.C.P. 272. 
 
Construction of the Railway. 
 
 935 
 
 " the season " as master to manage a steamer, might be binding, 
 and that non-suit for want of a corporate seal was properly set 
 aside, (i) In a later case the facts were stated that D., on the 
 suggestion of R. and the Bank of O., that he should purchase 
 certain lumber held by the bank as security for advances made 
 to R., required a guarantee from the bank that the lumber should 
 be satisfactorily culled and any deficiency paid for by the bank. 
 Tiie directors thereupon resolved to submit the lumber to a 
 culler, and if he reported satisfactorily to give the guarantee. 
 Their local agent, however, with the approbation of tlieir head 
 manager, without previously employing a culler to report, gave a 
 guarantee in writing, but not under seal, "on behalf of the bank," 
 that the lumber should be satisfactorily culled previous to ship- 
 ment : — It was held, that no seal was required; and if the Bank 
 wished to repudiate it, they should repay the mo ney paid to them 
 by D. for the lumber. (2) 
 
 However much the juri prudence may differ in the various 
 cases which have been given as illustrations, it would seem to 
 be sound law, and in accordance with common sense, to say that 
 contracts for the construction of the railway, entered into for the 
 carrying out of the very purposes of the company's charter, would 
 be binding upon the company even if not under the corporate 
 seal, when executed by an authorized officer : — provided always 
 of course that they contain no provisions or stipulations ultra 
 vires of the company. 
 
 
 3« It is customary to insert in construction contracts, condi- Conditions 
 tions and stipulations which in ordinary contracts would perhaps f" ^"P"'*''" 
 be looked upon as unusually harsh and severe. For instance, 
 such as the imposition of penalties upon the contractor for the 
 slightest deviation from the strict letter of the contract ; the 
 stipulation that the company should have the right to take the 
 work from the contractor, whenever their engineers sliould decide 
 that the work was not progressing with sufficient rapidity or in 
 a proper manner, or to put on an extra force of laborers if the 
 
 (i) Ellis ». Midland Ry. Co., 7 Ont. A. R. 
 (2) Dobell V, Ontario Bank, 3 O. R. 299. 
 
 15 
 
 464. 
 
 .11,1 
 
 U 
 
^Tf^^tF 
 
 226 
 
 The Railway Law of ('anada. 
 
 
 t; 
 
 
 ■sti 
 
 • I 
 
 number employed by the contractor is deemed insufficient, (i) 
 And it is a most usual condition to make the company's engineers 
 the sole and final judges of the cpialily and quantity of work per- 
 formed, and liie periodical payments to be made, and the amount 
 to be paid upon the final estimate when the work is completed. 
 
 (2) It is ordinarily provided in most contracts that approximate 
 estimates shall i)e made monthly, or at fixed periods, and that 
 the company will make payments in accordance therewith as the 
 work progresses, subject to adjustment upon the final estimate 
 
 (3) But, unless so provided, a contract calling for monthly 
 estimates imports an accurate measurement and final estimate 
 for each month, and not one that is merely approximate. (4) 
 
 (1) Ranger 7\ Great Western Ry. Co., 5 II. of L. Cas. 72 ; Jones v. 
 Tlie Queen, 7 Can. S C. R. 570. 
 
 A clause, providing that the employer may determine the contract and 
 forfeit the plant, etc., if the works are not proceeded with at the rate of piogress 
 rciiuired by the engineer, can, it would seem, only be put in force duriny the 
 time liniiicd for the completion of the woik. 
 
 A provision authorizing the employer, in tlieevt nt of default by the contractor 
 to use the plant and materials, does not make the plant and materials the pro- 
 perty of the employer. Garrett r'. Salisbury ^S: Dorset Junct. Ry. Co, L. 
 R., 2 Eq. ,^58. And where Government commissioneis had the power, under 
 the terms of a contract,— the work not havini; been completed within the time 
 stijiulated, or in accordance with the contract,— to take the contract out of 
 the hands of the contractors and charge them with the e.xtra cost of completing 
 the same, the contractors' plant should not be forfeited, but shauKlbe returned 
 to them in its then condition, or in such condition as it should be by a reasonable 
 use and caie (fit during the progress of the woik to completion. Uerlinguet 
 V. 'I he ()ueen, 13 Can. .S. C. R. 2cS. 
 
 Where a contractor fails to carry out the terms of the contract wiihin the 
 time stated therein, the company can hand the undertaking over to another, 
 without incurring any re.-^|)onsibiliiy toward the (ir>t contractor. Stanton?', 
 Can. Atl. Ky. Co, 21 R. L. 168 (Q. li). Where a contract for the con- 
 stiuction of )iart of a road stii'ulates that tlie price, at so much per foot, shall 
 lie payable monthly, according to the engineer's certificate, and no lump sum 
 is i-taied for the whole work, the contractors can claim payment for their woik 
 and mnteiials sni^plied, even where they have not completed the entire con- 
 tract, if they have not been consulted as to the execution or resolution of the 
 contract, or their | ermission has not been asked to have the work continued 
 at their txjiense, but on the contrary the proprietor continued and completed 
 the undertaking, and used the materials prepared l)y the contractor. McGreevy 
 -■. Roomer, 9 R. L. 587 (Q. B.). Affirmed by Supreme Court, Cussel's I'ig., 
 2nd Edit., p. 140. 
 
 (2) Jones t'. 'Ihe Queen,, 7 S. C. R. 570 ; McCarron ?■. McGrtevy, 1 5 S. 
 C. R. 37S ; Reg. v. McGreevy, 18 S. C. R. 371 ; Guilbault r'. McGreevy, 
 iS S. C R. 609 ; Peters v. 'I'lie Quebec Harbor Commissioners, 19 S. C. R. 
 6S5. 
 
 (3) IWd. 
 
 (4) Herrick ;■. Central Vermont Ry. Co., 27 Vt. 673. 
 
 'I 
 
Construction nv the Railway. 
 
 aaf 
 
 Where the work is to be done to the satisfaction of the engineer, 
 upon whose apjjroval payment is to be made, the contractor 
 can recover neither upon the contract nor in an action for worlc 
 done until the engineer has certified his approval, (i) Where 
 the certificate of the engineer as to tiie work done and the sums 
 payable is to be final, it cannot be impeached, except on the 
 ground of fraud, and no action can be maintained until the certi- 
 ficate is given. (2) If the engineer's certificate is made con- 
 clusive, it is binding on both parlies to the contract, and no 
 complaint can be made by the company for defects discovered after 
 it has been given. (3) In cases where the person who is made 
 sole judge of the performance of the contract is in the permanent 
 employ of the company, it will be more dilVicult for the contractor 
 to make out a ca-e of unfairness, than in the case of a contract 
 with a private person where an engineer or other professional 
 man is employed simply for the pariiculir work. In the former 
 case the contractor has agreed to accept as judge a person whom 
 he knows may be biased; in the latter case no such knowledge 
 can be imputed to him. Thus where the i)erson whose certificate 
 is required is the engineer of thi cimpuiy, the fact ili it the 
 engineer is also a shareholder in the company does not dis(iualify 
 him. (4) On the other hand, when it is shown that the engineer 
 is the agent of a private employer, and has entered into an 
 agreement with him that the woik shall be done for a certain 
 sum, including his commission, this is sufficient fraud to entitle 
 the contractor to disregard his decision. (5) A contract under 
 seal between a company and a contractor to do certain works for a 
 certain sum cannot be varied by a mere verbal agreement between 
 the engineer of the company and the contractor. (6) Where 
 the contract provides that no additions shall be made without a 
 
 1? 
 
 : 
 
 
 iii 
 
 (i) Jones f. 'I'lie Queen, 7 S. C. R. 570; McCanon r. ^^c■G^eevy, 13 
 .S. C. k. 378 ; Peters f. Qiiei)ec Ilaihor Commissioners, 19 S. C. K. 6S5. 
 
 (2) 11). iind Sharpc r'. San Paulo Ky. Co., S Cli, 597 ; and see BroMn t'. 
 Allan, Supreme Ct., 23 June, i>S8i, Cassel's Digest, 2nd Edit. p. 147. 
 
 (3) Jb. and Dunaljerg it Witipsk l\y. Co. v. Hopkins, 36 L. 1'. X. S. 
 
 733- 
 
 (4) Ranger 7'. Great West. Ry. Co., 5 H. L.Cas. 72. 
 
 (5) Kimberly v. Dick, 13 Ec], I ; Mcintosh f. Gt. W. Ry. Co., 2 H. lS: 
 T. 250 ; Waring w Manchester, Sheffield it Lincoln Ry. Co., 7 II. 4S2, 2 U. 
 & T. 239. 
 
 (6) Sharp v, San Paulo Ry. Co., 8 Ch. 597. 
 
 ■•.#1 
 
 4, 
 
 ti 
 
 
22.S 
 
 'I'm; Railway Law ok Canada. 
 
 ■ !>' 
 
 Mi 
 
 My* 
 
 1 1 
 
 'if! II 
 
 
 Construction 
 of particular 
 contracts — 
 evidence — 
 quality of 
 work — claim 
 for increased 
 price. 
 
 wiitti.ii (jidcr from tlic employer's engineer, tlic engineer's certi- 
 ficate certifying that extra work lias been done is not an order 
 within the meaning of the contract, (i) 
 
 A provision in a contract, tluit no claim shall be made or 
 allowed for extra work, " tinless the same sliall have been done 
 in pursiuince of written contracts or orders signed by the 
 engineer," and that all claims for work done under such written 
 contracts or orders shall be presented for settlement within a 
 given time,— will bar a recovery for any extra work not siip- 
 ])orlcd by the directions, in writing, of the engineer, or i)resented 
 for allowance within the time spec:ificd. (j) 
 
 This rule is not varied by the fact, that previous to doing the 
 extra work, directed by the engineer, the contractors were 
 assured by the local or assistant engineer, who communicated 
 the direction from his chiefs that they would receive extra com- 
 pensation therefor; — it appearing that said assistant had no 
 authority to bind the company by any such promise. (3) And 
 this rule is all the stronger in the case of government contracts. 
 
 (4) The power given to the engineer, to determine all points 
 [n dispute by his final certificate, does not give him the right to 
 deduct any sum from the bulk sum contract price on account of 
 an alleged diffeiencc beiween the quantity of work to be done, 
 r.s stated in the specifications, and the quantity actually done. 
 
 (5) The engineer's certificate must be obtained within a 
 reasonable time, and where a contractor had not taken any steps 
 to obtain it until six years after the superintendent had left his 
 employer, the failure to produce such certificate was sufficient 
 ground for dismissing his action. (6) 
 
 4. The plaintiffs, Barry & Smeaton, were sub-contractors for 
 the mason work on a portion ot the line of the Giand Trunk 
 Railway Company, for constructing which Ross & McRae, the 
 defendants, had the contract. In a conversation betwetn the 
 
 (1) Sulphur A' Copper Co. r. McElroy, 3 A])p. Cas. 1040, 
 
 (2) Vanderweiker r. Vermont Cent Ky. Co., 27 Vt. 130. 
 
 (3) Vanderweiker v. Vermont Cent. Ky. Co., 27 Vt. 130. 
 
 (4) Jones i'. The Queen, 7 S, C. K. 615 ; The Queen v. McGreevy, 18 
 S. C. k. 372. 
 
 (5) Peters :■. The Quebec Harbor Commissioners, 19 S. C. R. 685, 
 
 (6) McCarion ?■. McGreevy, 13 S. C. K. 379. 
 
Construction ok iiik Railway. 
 
 229 
 
 l)laiiitiff Smcaton and the defendant McRae, before the work 
 was Ijegim, Sineaton was given to understand that tlie standard 
 of the second class masonry to be built by plaintiff was to be 
 e [ual to that on the " Loop Line," another part of the Grand 
 Trunk system, and shortly after McRac wrote to plaintiffs, in- 
 structing them to go on witli the work "according to the plans 
 and specifications furnished by the company." 
 
 The |)laintiffs had completed a portion of their work, when they 
 were informed by the engineer in cliarge that the ([uality oi 
 second class masonry was to be of a higher standard than tlicy 
 had supposed, which would increase the cost of construction 
 from twenty-five to thirty \>cr cent., whereupon they refused to 
 proceed until NfcRac, who was [)resent at the time, said totliem, 
 " go on and finish ihe work as you are told by the engineers, and 
 you will be paid for it." They thereupon pulled down what »vas 
 built, and proceeded according to the directions of the engineer. 
 When the work was nearly done, McRae tried to withdraw his 
 offer to pay the increased price, but renewed it on tlic sub- 
 contractors threatening to stop. After completion of the work, 
 paynienl of the extra price was refused. Upon an action therefor, 
 it was held that the conversation between McRae and Smeaton 
 prior to the commencement of the woik, as detailed in the 
 evidence, justified the sub-contractors in believing that the 
 standard of quality was to be that of the Loop Line; that the 
 promise to pay the increased price was in settlement of a />Of/j 
 fide dispute, which was a good consideration for such promise. ( i) 
 
 5. H. tendered for the construction of a line of railway pur- Hond— coiuH- 
 suanl to an advertisement for tenders, and his offer was condition- ai'ityT 
 ally accepted. At the same time H. executed a bond reciting the 
 fact of the tender and conditions, within four days, to pro- 
 vide two acceptable sureties, and deposit 5 per cent, of the amount 
 of his tender in the Eank of .Montreal, and also to execute all 
 necessary agreements for the commencement and completion of 
 the work by specified dates, and the prosecution thereof until 
 completed. These conditions were not performed, and the con- 
 tract was eventually given to other persons. In an action against 
 H. on the bond it was held that the agreement made by the bond 
 
 (1) Barry f. Ross, 19 S. C. R. 360. 
 
 ''I! 
 Ill 
 
 111 
 
 \ 
 
 \\ 
 
 « i. 
 
 
230 
 
 'I'lii. Railway Law ok Canada. 
 
 was unilateral ; that the railway company was under no obliga- 
 tion to accept the siirolies offered or to give H, I he contract ; 
 that the bond and the agreement for the construction of the 
 work were to be contemporaneous acts, and as no such agree- 
 u'.enl was eiilered into, H. was n(jt liable on the bond, (i) 
 
 Evidence of 
 contract — 
 ralilicatiun 
 
 (J. The plaintiffs entered into a contract with one F. iol)uilda 
 fence for a railway. F. controlled nine-tenths of the slock, and 
 (,»ucsiioii fur publicly a])])eared to be, and was uiiderslojd to be, and acted as, 
 the jury. inanaL;ing d rector or manager of the company, although he was at 
 
 one time contractor for llie building of the whole roa .1. i'iainliffs 
 built the fence, and tlie railroad had the benefit thereof. The 
 conijiany re]'U:liated the contiact. In .m action by the plaii. T 
 to recover thereon, certain questions were submitted l>y the trial 
 judge to the jury, who found that the plain tin's, when they con- 
 tiacted, considered they were contracting with the company 
 through F., and that there was no evidence that the company 
 repudiated the contract till the action was brotight, and that the 
 liayments made were as money which the company owed, not 
 money whicli they were paying to be charged to F., and a general 
 verdict was found for the plaintiffs for the amount of the con- 
 tract. The Supreme Court held (Ritchie, C. J., and I'aschereau, 
 J., dissenting), that it was jiroperly left to the jury to decide 
 whether the work performed, of whicii the railway coni])any 
 received the beneht, w .s contracted for by the company through 
 the insttimi'. ntality of ¥., or whether they adopted and ratified 
 the contract; and that tlie vcidici coiild not be set aside on the 
 ground of being against t!ie weight of evidence. (:;) 
 
 Katilicaiion of 7* 'Fhe president of a railway com[)any, purporting to act on 
 
 continct— Ke- ]^,^,]j,^]C ^ |- ^|^g company, cntereJ into a contract with certain 
 
 ]mai.iiion of . 
 
 part, contraciors for the construction of forty nnles of road. I>y the 
 
 contract, bonds to douljle the amount of the moneys to be 
 secured were to be deposited in a bank, to secure to the con- 
 tractors ])ayment of a portion of ih.e jirice of the construction 
 of the railroad. The jiresident aflerwaidi agreed that, in default 
 of payment within a limited time, the contractors shouli take 
 
 (1) liramfoni, Waterlo ) A' Lake Erie Ry. Co, f. Huffman, 19 SCR. 336. 
 
 (2) Camila Central : . Munay, 8 S. C". R. 313. 
 
CONSTRUCTIOX OF THE RAILWAY, 
 
 231 
 
 the bonds in payment at fifty cents on the doll.ir. Two years 
 after tiie bonds were delivered to the contractors, llie company 
 filed a bill repudiating the contract, and asking that the bonds be 
 declared null and void. It appeared that the defendants had 
 obtained a judgment at law against plaintiffs for a large amount 
 on the contract, in which action the company had set u[) as a 
 defence that the contractors had accepted the bonds in payment, 
 that the plaintiffs had begun an action then pending on the con- 
 tract against defendants, chiiming damages for non-completion 
 of work, that an Act of Parliament had been jiassed in the 
 interest of the company, which recited the construction and 
 completion of the work, and that during two years no steps had 
 been taken to repudiate the contract or to question the jjresi- 
 deni's authority, and thnt the company had taken possession of 
 and the benefit of the work. 
 
 The Court held that the company must be taken to hi'.ve rati- 
 fied the contract, and that they could not take the benefit of a 
 part of the contract and repudiate it as to another part, (i) 
 
 8. In ';n action where the plaintiffs alleged that they had agreed Condition 
 
 to complete '.he ballastinc of a certain portion of defendant's P''=,'^^''^"|~' 
 •11, ' , 1 1 r • 1 • 1 Independent 
 
 railway, provided the ccm])any should furnisn casii to meet the a,rreement. 
 
 monthly estimates of the engineer, and that the plaintiffs had 
 commenced, and were readv to comi)lete the work, but defendants 
 wrongfully prevented and discharged th-em, and it was pleaded 
 in defence, that by the .same agreement it was provided, that where- 
 as ulaintiffs had leased said railway from defendants, liy lease 
 bearing even date with the agreement, in which it was provided 
 that ^p.ooo should be expended by defendants on the com- 
 pletion jf the I'^^d bef'MC the r"nts should be payalile, and 
 whereas dcfctidinls were un.ible to raise the ^?o,ooo, it was 
 therefore agreed that the plaintiffs should work the road, free of 
 any charge fot the use of it, and should expend the surplus earn- 
 ings on the completion thereof, the amouiit so expended to be 
 taken as part of the _;^3c,ooo; that the lease so made was for the 
 exjiress par|)Ose of enabling the plaintiffs to work the road, and 
 raising thereby enough to enable defendants to pay them for the 
 
 (;) Winiiiiiug A; Iliulsun's Bay Ry. Co, r. Mann, 7 Man. St. 
 
 :S 
 
 "ilWfi'<B>rHiigBaaBatfB 
 
232 
 
 The Railway Law op Canada. 
 
 Contractor 
 purchaser o' 
 lands for con 
 striiction — 
 payment — re- 
 ceipt — title. 
 
 Apportion- 
 ment — land 
 grant — sub- 
 sidy. 
 
 w 
 
 work contracted to be done by them ; that the plaintiffs, although 
 they had the free use of the road, refused to work it, and aban- 
 doned the same, whereby they forfeited the contract, and defend- 
 ants tiierefore prevented them from proceeding with the work ; 
 it was held on demurrer that the plea was bad, the agreements 
 being independent, (i) 
 
 1). Where the contractor purchases in his own name the lands 
 required for constructing the railway upon, and gives a clear 
 receipt to the company for value received, for all materials sup- 
 plied and work done for them, he must be presumed to have been 
 paid the price of such lands ; he cannot therefore revendicate 
 them, although he never gav2 the company any formal title for 
 the lands. (2) 
 
 The title to land purchased by the contractors in the com- 
 l)any's nam^^ foi' construction of the road is in the company. (3) 
 And where the contractor acquires the land on his own account 
 and in hio own name, and the road has been constructed thereon, 
 he cannot, in the case of a seizure against the company, be put 
 in possession again without allowing the company or liieir 
 creditors to withdraw the materials of the road, or himself pay- 
 ing their value, where such materials have been laid jy his per- 
 mission, and have been paid for partly out of the govcrnnunt 
 subsidy and partly with the company's money and that of their 
 creditors. (4) 
 
 But when the contractor purchases in his own name the lands 
 on which the road is built, at his own expense, and when finished 
 gives a clear receipt to the company for value received for all 
 materials sup,)lied to and work done for them, he is presumed to 
 have been paid for the ])rice . f lands, and cannot revendicate 
 them, althm'.gli he never gave the company any formal title to 
 them. (5j 
 
 10. I'.y contract embodied in a statute, "the plaintiff company 
 covenanted to complete a railway in five years, and thereafter 
 
 (1) Tate v. Port Hope, etc., Ry. Co., 17 U. C. Q. 15. 351. 
 
 (2) Koberge :■. North .Shore Ry. Co., 54 L. C.J. 315 (O. 15.). 
 
 (3) H.in(iue d'Hochelaga 7 . M. P. S: 15. Ry. Co., M. L. R , 
 (■4) Bniiijiie d'llocholagar . M. P. it 15. Ry. Co., confirmed in appeal, 19th 
 
 Jan., i»84. 
 
 (5) Robcrgo :■. La Cio. du Cli.de Fer du Nord, 34 L..C. J. 315. 
 
 S. C. 150. 
 
Construction ok xHt, Railway. 
 
 2$^ 
 
 to maintain and operate the same. In consideMtioii tliereof the 
 Government covenanted: (ist) "to pay tiie company ui)on the 
 construction and continuous operation of the line an annual sub- 
 sidy for thirty-five years, such subsidy " to attach in ])ro[)ortionate 
 parts, and form part of the assets of the company as and when 
 each five-mile section is completed and operated ; " (2nd) to grant 
 to the company in fee simple 5000 acres of land for each one 
 mile of railway completed, on completion of each section of five 
 miles. 
 
 It appeared that the company completed a portion of the line, 
 and received from the gove-nment, on completion of eacli five- 
 mile section, the specified ^.ant of land, and certain half-yearly 
 payments in respect of the proportionate part of tlie subsidy 
 which was deemed by the parties to attach thereto ; thereafter 
 the contract was broken by the company, and the government 
 refused further payments. In a suit by the company and its 
 assignees of a division of the railway anJ of the rights relating 
 thereto, it was held, that on the true construction of the con- 
 tract each claim to a grant of land was complete from the time 
 when the section which had earned it was complete ; that on the 
 completion of each section a proportionate part of the subsidy 
 became payable for the specified term, but subject to tlie con- 
 dition of continuous efficient operation, (i) 
 
 11. Tiie Court will not enforce specific performance of an Specific per- 
 executory contract involving continuous Acts. (2) 'f hnj^ formance. 
 specific performance of a contract to construct a railway entered 
 into between a company and a contractor will not, as a rule, be 
 enforced, tlie remedy by damages in such a case is complete. (3) 
 
 It is no answer, however, to an action for specific performance 
 of an agreement to carry out certain worko in a particular way, 
 where damages are not an adequate compensation, that the pub- 
 lic will be put to inconvenience by delay in the traffic whil'-> the 
 works are being carried out. (4) Nor is it an answer in such a 
 
 (1) Government of Newfoundland v. Newfoundland Ry. Co., 13 Ap[i. Cns. 
 199. 
 
 (2) S. Wales Ry. Co. :•. Wytlies, I K. ^^}. 1S6 ; The Carleton Branch 
 Ry. Co. 7'. The Gran I Southern ("a., 21 N, 11, 340; and Johnson:'. Mont- 
 real, etc , Junction Ry. Co., 22 Grant Chy. 290. 
 
 (3) lb. 
 
 (4) Raphael z: Thanjei Valley Ry. Co., L. R., 2 Ch. 147. 
 
 |!ll 
 
 '•II 
 
 »"i 
 
 P 
 
 I'll 
 
 ,1 
 
 'hi 
 
 :3 
 
 .ii» iT» ii M >.«j»i>n»<»-»j>^ a» ei», a W M »3(«Bta 
 
r 
 
 234 
 
 TiiE Railway Law of Canada. 
 
 case that ilie works iigreed upon cannot be carried out without 
 taking lands wliicli the company have no power to lake. Tiie 
 company will be directed to i)orforni the agreement, an ], if they 
 fail to do so, they will bo compj'led to close their line. (0 
 
 IS 
 
 I 
 
 ti'^l 
 
 Liability of Company for Acts of Coutractoivs. 
 
 The question of the nature and extent of the company's lia- 
 bility for ihe acts of contractors employed by iliem in the con- 
 struction of the railway has already been touched ujion. (2) But 
 it may lie further dwelt upon here with advantage. 'I'lie com- 
 l)any's liability would seem to depend upon ( i ° ) whether the act 
 causing damage is a natural consequence of the work which the 
 contractor is employed to do ; (2 ^ ) or, not being so, is the result 
 of negligence on the part of the contractor or his servants, or of 
 the doing of something outside of the contract, or which he was 
 not called upon to perform ; and (3 ° ) whether the employer ex- 
 ercised a direct control and supervision over the manner of the 
 performance of the work causing the damige. In the first and 
 third cases, if the facts establish the affirmative of the proposition, 
 the company would be liable, in the second they would not. (3) 
 
 ■[ he following cases illustrate the various phases of the ques- 
 tion. 'I'he leading case is that of /t//is v. 77ie Sheffield Gas Con. 
 siinicrs' Cj., (4) where Lord Campbell, C. J., thus exiiressed 
 himself : 
 
 " I an clearly of oiiinion that if a contractor does the thing 
 which he is employed to do, the employer is responsible for that 
 thing, as if he did it himself, I perfectly approve of the cases 
 wliich have been cited. In those cases the contractor was em- 
 ployed to do a thing perfectly lawful, the relation of master and 
 servant did not subsist between the employer and those actually 
 doing ihc work, and therefore the employer was not liable for 
 their negligence ; he was not answerable for anything beyond what 
 he employed the contractor to do, and that being lawful, he was 
 noi liable at all. But in the present case, the defendants had no 
 right to break up ih: streets at all ; they employed contractors 
 
 (1) Ally Gen, r. Mid. iC'.-nt Ky, Co., L. R., 3 Ch. loo. 
 
 (2) Siinra, jip. 30-32. 
 
 (3) Su'wra, pp. 30-32. 
 (4> 2 EIIh ,V hi. 766. 
 
1 
 
 Construction ok thk Railway. 
 
 235 
 
 to break up the streets, and in so doing, to heap up earth and 
 stones so as to be a public nuisance, and it was in consequence 
 of tliis being done by tiieir orders that tlie plaintiff sustained dam- 
 ages. It would be monstrous if a party causing aiiotner to do a 
 thing were exenijjt from liability for that act, merely because 
 there was a contract between him and the person immediately 
 causing the act to be done." (i) 
 
 Again in Bower \. J\\itc, (2) Lord J, Cockburn, C. J., said : 
 
 " A man who orders a work to be exectited, * * 
 
 * * from which in the natural course cf things 
 
 injurio.is consetjuences to his neighbor must be expected to 
 arise, unless means are adopted by which such conse([uen(;es may 
 be prevented, is bound to see to the doing of that which is neces- 
 sary to prevent the mischief, and cannot relieve himself of his 
 responsibility by employing someone else — whether it be the 
 contractor employed to do the work from which the danger arises, 
 or some independent person — to do what is necessary to i)revent 
 the act he has ordered to be done from becoming wrongful." (3) 
 
 Tiiis statement of the law is, as observed by Lord IJIackburn 
 in /:fu:;/it\< v. Pcrcival, {3,\ rather broadly put, and could not be 
 universally ai)|)'ied, but woidJ fit most ca^es of such a nature 
 arising under railway contracts. I'he holding in the latter case 
 was that tiie law casts a duty upon a person carrying on opera- 
 tions involving risk to others, to see that reasonable care and 
 skill are exercised in tho-:e operations, aiul that such a ])L'rson's 
 responsibility could not be got rid of Ijy delegating the perform- 
 ance to a third person. (5) 
 
 I'lie rule w;is well put by Williams, 1., in the c.ise of Pickard 
 V S'u't'i, (6) as follows : " Unquestionably no one cm be made 
 liaiile for an act or breach of duty unless it be traceable to him- 
 self or his servant or servants, in the course of his or their em- 
 ployment; consequently, if an inJepen .lent contractor is emjiluyed 
 
 (1)2 Ellis iV 1!1. at p 769. 
 (2) L. R., I Q. 1!. \). 321. 
 (;,) [,. K., i n li. D. at t). 326. 
 
 (4) 8 App. L'as. 443. 
 
 (5) Ibid., and sec- Liarh.T.m r. Ipiwich Dock Commrs., 54 L. T. 23. 
 
 (6) lu C. 13. (X. S.) 480 ; and see Stieel r. S. E Ry. Co., l6 C. H. 550 ; 
 Reedic V. Lon. A- N. W. Ry. Co., 4 Excli. 244 ; Allen r. I lay ward, 7 (J. B. 
 960 : Mitchell V. Darley Main Colliery Co., L. R., 14 O. 13. L), 125. 
 
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 236 
 
 The Railway Law of Canada. 
 
 to do a lawful act, and in tlie course of the work he, or his ser- 
 vants, commit some casual act of wrong, or negligence, the 
 employer is not answerable 
 
 " That rule is, however, inapplicable to cases in which the act 
 which occasions the injury is one which the contractor was em- 
 ployed to do ; nor by a parity of reasoning to cases in which the 
 contractor is entrusted with the performance of the duty incum- 
 I)ent upon his employer, and neglects its fulfillment whereby an 
 injury is occasioned." 
 
 The nature and extent of the control and superintendence 
 which the employer exercises over the contractor is always a 
 ([ucstion of fact ; and to entail liability upon the former must be 
 shewn to have extended, not only over the general character of 
 the work, but directly to the manner or method of the doing of 
 the act causing the injury, (i) For instance, where a corporation 
 employed a contractor to lay down sewer pipes in streets, and 
 an employee of the contracter was killed by the caving in of the 
 walls of a sewer owing to insufficient shoring, it was held that 
 though the corporation exercised a general superintendence over 
 the work through their ins])ector, they were not liable, as the 
 evidence did not show that the corporation had by their inspec- 
 tor so interfered with the conduct of the work by tlic deceased 
 as to assume personal control over him. (2) 
 
 Anothei forcible illustration is afforded by the case of Kirr v. 
 Atlantic & North Wat Ry. Co. (3) There a contractor was 
 einployed to build a portion of the railway, at a fixed price of 
 so much per yard for filing, excavations, etc., the work to be 
 done under the superintendence of tiie company's engineers, in 
 accordance with then' directions, with the usual stipulations as 
 to the right of the company to take away the work from the con- 
 tractor, put on an extra force of rnen, etc. The coniracto' was 
 to furnish all materials and plant, and was allowed no extra 
 remuneration for long luvuls; the comi)any. however, were bound to 
 furnish borrow-pi'.s if required, and to exercise their itauitory 
 powers to expropriate land and rights of way for tliat luiipose, 
 
 (1) Supra, pp. 30-32. 
 
 (2) Murphy f. Ciiy of Ottaw.i, 13 O. R. 334. 
 
 (3) Q. R., Q. B. (confirmed in the Supreme Court), Dec, 1815, ^"' V'-'^ 
 repotted in either Court. 
 
1 
 
 Construction ok the Railway. 
 
 837 
 
 if called upon by the contractor so to do. The contractor, by 
 an independent agreement, obtained the right to excavate mate- 
 rial from the land of a neighboring proprietor. In the course 
 of excavation he destroyed a right of way to which the land 
 excavated was subject in favor of the jilaintiff, wiio sued the com- 
 pany in damages. The latter were held not liable, on the ground 
 that they could exercisa no control over the contractor as to the 
 place where he chose to obtain his material or the manner of his 
 obtaining il, but only as to the quality of the material supplied, 
 and could not interfere to prevent him obtaining suitable material 
 wherever he pleased. 
 
 The determination of the whole question seems to depend upon 
 the application to the facts of each case of the maxim, " qnifacit 
 per aliwH facH per se." It has to be decided whether the person 
 causing the damage is the agent, servant, or employee ofanolher, 
 or is one for whose acts that other is responsible. This is the 
 law in Quebec ; (i) and the commentators on the Code Napo- 
 leon in France make practically the same distinciions as we find 
 in the English jurisprudence. With that exactness which charac- 
 terizes the French text-writers, we find the distinction clearly 
 drawn between the "proprietor " who engages a "contractor," 
 and the " employer " {comincttanf) who hires a servant {prepose). 
 Thus we find Deinoloinbe (2) defining the last named as 
 " Quiconijue est enqjloye par un autre a des soins, a des occupa- 
 " tions, a des travaux interieurs ou exterieurs, tel cpie comniis, 
 " surveillant, ouvrier, voilurier, journalier, mecanicien, compa- 
 " gaon, tons ceux enfin qui se trouvent vers le commettant duns 
 " une situation subordonnee tie ce i^eisre." 
 
 And the sanw writer, after stating that the proprietor would 
 not be a *' cominettaiit " according to the law, if he entrusted 
 the execution of the works to the contractor " a prix forfait,'^ 
 without rc-ervir.g a'.i\ control, adds, that it would be otherwise 
 if the person who h^s ordered the works ha- ri-scrvod to himself 
 oversight and control, for, in such a case, he has taken the 
 ]->osilion of " tvyz/w./Aiw/." and the contractor or workmen 
 would become his '-pi ipt'se." (3) 
 
 (1) «.•. C. 1054- 
 
 (2) Tume 31, No. 669. 
 (j) Tome 31, Xo. 623. 
 
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 The Railway Law of Canada. 
 
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 Interference 
 with ditches 
 and water- 
 courses. 
 
 / 
 
 Dalloz adopts tlie same view, and states lliat the proprietor 
 who reserves control and direction over tlic works which he has 
 entrusted to the contractor is a " coiiuiiettant," and, as such, 
 responsil)k', under the article of the Code. He says : 
 
 " Mais la responsabilite a laquelle I'article 1394 soumct les 
 " commeltants ne depend pas de ce qu'ils ontchoisi leurs pr6po- 
 " ses, niais suppose en outre qu'ils ont le droit de leurdonnerdes 
 " ordies et des instructions sur la nianiere de remplir les fonc- 
 " tions aux(]UL'lles ils le.5 eniploient, autorile sans laquelle il n'y 
 " ajiasde veritable coniiiieltant.'' (i) 
 
 Daniu^u canned by Gonstriictiou of Raihvaj'. 
 
 1, It has been already pointed out that damages must be 
 assessed, once for all, in respect of injuries which were foreseen 
 or ought to have been foreseen as likely to result from the works 
 of a railway company t') lanJs taken or injuriously affected. 
 If the damage that occurs is greater than was anticipated, no 
 compensation can be subsequently claimed, nor can action be 
 maintained in respect of it. (2) 
 
 This ajiplies generally to cases of overflow of drains and water- 
 courses. (3) 
 
 l)Ut the compensation awarded docs I'.ot, in the absence of ex- 
 press agreement, include all contingent and possible damage which 
 may arise from the construction of the works, b.it cannot be fore- 
 seen at the dale of the award. (4) 
 
 The above statement of the law is, of course, based on the sup- 
 
 (i) Dallo^; :v. Rcsponsal^iliid, No. 611, Vide, Mainicl Jes Juitinieiits, 
 Tome I, p. 8 ; and pp. 352 and 367. 
 
 (2) Sri/>i;i cl). 7, sec 41 ; and see Croft r. London A; Noitli-West l\y. Co., 
 3 B. \: S. 436 ; 'lodd T'. Melropolilan District Uy. Co., 24 L, T. N. S. 43S ; 
 Cl^andjerlain r. West of l.oiidon iS: Crystal Palace Ky. Co., 2 1!. it S. 
 O17, 638. 
 
 (3) Knapp T. The Great Western Ry. Co., 6 U. C. C. 1'. 187 ; L'Esper- 
 ance !■'. The (Jroat Western Ry. Co., 14 U. C. Q. 15. 187 ; N'anhorn ,- . The 
 Grand Tiunk Ry. Co., 9 U. C. C. 1'. 264; McGillivray t. Great Western Ry. 
 Co., 25 U. C. R. 69 ; Utter r-. Great Western Ry . Co., 17 U. C. Q. R. 392 ; 
 Nichol V. The Canad.r Southern Ry. Co., 40 U . C. (^. 1!. 5S3 ; Tolton i'. 
 Can. Tac. Ry., 22 O. R. 204 ; Wallaces. The Grand Truidv Ry. Co., 16 
 U. C. Q. B. 551 ; Crcwson 7'. The Grantl Trunk Ry. Co., 27 I'. C, <^. B. 68. 
 
 (4) Lawrence f. Great Xoitliern Ry. Co., 16Q, B.643; Lanc.rshire tt 
 Yorkshire Ry. Co. r. Evans, 15 Beav. 322, 
 
Construction oi' the Railway. 
 
 39 
 
 position that tlie construction of the works is carried on in a law- 
 ful and proper manner, and not negligenlly. 
 
 3. Ey the common law, no rights can be claimed, yV/zT iiatuio\ Surface water. 
 in the tlow of surface water, and its detention, expulsion or 
 diversion is not an actionable injury, even when injury results to 
 others. Ci) A railway corporation duly authorized by law has no 
 other or different rights regarding surface water or suiJeifieially 
 percolating waiors, and if its road-bed obstructs or diverts the 
 natural tlow of such waters, no right of action, by the common 
 law, arises to adjoining owners of land, the presumption being 
 that the damages to which they are entitled were included in the 
 compensation assessed. (2) 
 
 But where the overflow is caused l)y a negligent or unlawful 
 construction of the railway, recovery can be had by action at law 
 and not by arbitration under the Act. If, on the other hand, the 
 damage which has been sustained could have been foreseen, and 
 is the natural and necessary result of the construction of the 
 work anthorizcd by statute, the remedy would be by arbitration 
 under the Act. (3) 
 
 It is difficult to determine what constitutes under the Railway 
 Acts an actionable negligence in such cases. In an Ontario case, 
 where the plaintiff was allowed an action for damages against the 
 company for obstructing the drainage of his land, such damages 
 seem to have been allowed on the presumption that the company 
 had, by the terms nnder which the lands were acquired, rendered 
 it incumbent upon them to construct a culvert to carry away the 
 accumulated or other wiucrs, and that such culvert being insuffi- 
 cient for the puri)0se, its inefficiency was evidence of negligent 
 construction. (4) The language used by Draper, C. J., in this 
 case was as follows : ''It must have been foreseen that the ein- 
 
 (1) GouUl on Waters, \ 263. 
 
 (2) W;ilkfr r'. Old Colony Railro.id Co., 103 Mas?. 10 ; Nichol 7\ 'I'lie Can- 
 ada Soulliein Ry. Co., 40 U. C. (). I!. 5S5 ; conimeiiting on and di>liiiy;uish- 
 ing McCilliviay r. Great Western Ry. Co., 25 U. C (1. 1>. 69 ; Crewson 
 V. 'I'he tirand Trunk Ry. Co., 27 U. C. Q. B. 08 ; L'l^sperance "■■. (heat 
 Western Ry. Co., 14 U- C (^. B. 173. 
 
 (3) Addi.sonon Torts, 763 ; Simoneau :■. The Queen, 2 E.\. (('jui.) 39. ; 
 Morin v . The Queen, 20 S. C. R.. 515 (confirming 2 Ex. 390), and see Wal- 
 lace t'. G. T. R. Co., 16 U. C. O. B. 551 ; Cameron v. Ont., Simcoe & 
 Huron Ry. Co., 14 U. C. Q. B. 612. 
 
 (4) McGillivray v. The Great Western Ry. Co., 25 U.C.Q.B. at p. 74. 
 
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 The Railway Law oi" Canada. 
 
 l)ankmci)t, without any culvert, would prevent such natural or 
 arlitkial drainage, and if the defendants acquired the land on 
 which to place the embankment without condition or reservation 
 of any kind, the decisions show this would have barred the 
 plaintiff's claim. 'J"he defendants offer no evidence of the terms 
 on wliich they acquired the lands, but we have tlie fact that they 
 did construct a culvert, whicii, after the verdict, we must take to 
 be insufficient ; and we think we must also assume that in some 
 way it had become obligatory on the defendants to construct it, 
 and that the drainage of the lot was tiie object proposed ; or it 
 may be i)erhai)s more properly stated, that preventing dam- 
 age to tiie land, by stopping the escape of surface water, was the 
 object and the duty cast on the defendants. The fact that the 
 defendants has-e recently made another culvert in a different part 
 of the embankment strengthens this conclusion," (i) 
 
 It will be noticed that the Railway Act docs not provide for 
 the case of surface water as it does for the restoration of water- 
 courses or streams under section 91. The most that can be 
 said in favor of the contention, that railway companies are to 
 provide for the proper drainage of surface water, is to be found 
 in section 92, where they are enjoined to do the necessary works 
 with as little damage as possible. 
 
 This was the state of affairs that existed in the leading case of 
 Lawrcme V. TIte Great Northern Railway Co., {2) the special 
 statute governing the defendants in that case only requiring them 
 to make openings when the railway crossed any public drains, 
 embankments, or works made in any drainage district, but was 
 silent as to flood waters. 
 
 The plaintiffs had already been compensated for a// injury 
 and ihiviage done to the estate by severance or otherivise. The 
 railway, construcled in conformity with its Act of Parhament, 
 was carried along an embankment upon low lands lying between 
 a river and plaintiff's land. The low lands were separated from 
 plaintiff's land by a bank, which, before the railway embankment 
 was placed there, was sufficient to protect his land from the 
 u.>od-waters of the river ; but, in consequence of the construc- 
 
 (1) lb. p. 74. 
 
 (2) 16 Q. B. 643, 6 Eng. Ry. Cas. 495. 
 
Construction ok thk Railwav. 
 
 241 
 
 ti'on of tlic railway embankment, the flood-waters were unable 
 to spread themselves over the low lands as formerly, and flowed 
 over the bank on to his land. The Ccwrt held that as the com- 
 l)any might, by proper precautions, have prevented the injury 
 sustained by the plaintiff, an action on the case was maintainable ; 
 and the compensation previously had could not be held to em- 
 brace contingent and possible damages which might arise after- 
 wards by the works of the company at other places, and which 
 could not be foreseen by the arbitrator. 
 
 [t is to be noticed, that the Court in this case also decided 
 that the road was negligently constructed, because the company, 
 liy executing their works with i^roper precaution, might have 
 avoided the injury to the plaintiff ; and the want of such caution 
 was suflicient to sustain the action. It was only on such grounds 
 that the Court could have held that the remedy was by action, 
 for had the company been acting lawfully in every respect, and 
 not negligently, the remedy, if any, must have been by arbitra- 
 tion under the Railway Acts, (i) 
 
 No doubt the above case was one where the method of con- 
 structing the road might be clearly said to be in derogation of 
 the principles of the English Railway Act, and of section 92 of 
 our Railway Act, which require that tlie company's powers shall 
 be exercised so as to commit as little damage as possible. The 
 company had clear notice of the flooding of the land by the 
 l)resence of the embankment previously erected to exclude the 
 waters from plaintiff's land, and would certainly know that the 
 construction of their embankment would, witliout a proper out- 
 let for the waters, unduly confine them. (2) 
 
 It is further pointed out in some of the Ontario cases, that one 
 of the most important grounds of the above decision was that 
 the damage complained of was occasioned by an act of the 
 railway company at a place not on plaintiff's land, and with 
 which the plaintiff had nothing to do, and was not concerned in- 
 (3) This is also the American doctrine : that damages esti- 
 
 (i) See judgment of Wilson, J., in Nichol "<■' . Canada Southern Ry. Co., 40 
 U. C. Q. B., at page 594. 
 
 (2) See also I. Redfield on Railways, § 82, s. 7. 
 
 (3) See judgment of Draper, C. J., in Knapp v. The Great Western Ry. 
 Co , 6 U. C C. P., at p. 192 ; also of Burns, J., in L'Esperance v. Great 
 Western Ry. Co., 14 U. C. R., at p. 176. 
 
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 The Railway Law or ('anada. 
 
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 mated in the assessment arc those resulting from the construction 
 of the road on the land taken from the owner, but cannot include 
 damages resulting from construction on the land of others, (i) 
 When, however, the character and extent of a contingent Aituie 
 injury is capable of oeing ascertained, the amount of compensa- 
 tion should be ascertained once for all. (2) In Ontario it has 
 been held that railway companies arc not subject to the provi- 
 sions of "The Ditches and Watercourses Act" (U.S. O., ch. 
 199, 1S77) ; (3) and in any event, that such Acts could not be 
 made applicable to railways under the jurisdiction of the Do- 
 minion Parlianjent. (4) 
 
 ;{. I]y the law of Quebec, lands on a lower level arc subject to 
 receive su( :li waters as flow naturally and without the agency of 
 man, from those on a higher level, (5) and the owner of the 
 lower land can do nothing to prevent this flow, nor car ihe 
 owner of the higher level do anything to aggravate it. (6) If 
 a railway company in that province docs not use or exercise its 
 powers in such a way as to drain ihe lands through which its rail- 
 way runs as effectually as they had been drained by the old water- 
 courses before the construction of the railway, it must make 
 com|)ensaiion or pay damages. (7) But when the injury occa- 
 sioned to the plaintiff is one that could have been foreseen at the 
 time when part of his farm was t:iken for the purposes of the 
 railway, the company is discharged from making further com- 
 pensation by the acquittance given to the company of all dam- 
 ages resulting from such exprojjriation. (8) 
 
 In a case where plaintiff's farm was at the bottom of a slo])e, 
 and the railway ditches, which crossed his boundary ditches and 
 those of the neighboring proprietors, collected the water for 
 about a mile and a half, and discharged ;l upon his property, so 
 
 (i) Mills Eminent Domain, §217. 
 
 (2) Croft 7\ London, etc., Ky. Co., y L. ]. (Q. H.) 113. 
 
 (},) Miller r . G. T. K. Co., 45 U. C. (j. B. 222. 
 
 (4) I'er HaRarty, C. J., at p. 225. 
 
 (5) C. C. 501. 
 
 (6) C. C. 502. 
 
 (7) Grand Trunk Ry. Co. 7\ Miville, 14 L. C. R. 469; Can. Pac. Ry. 
 Co. :. I'ichette, 31 L. C. J. 36 (Q.U.) ; Cen. Pac. Ry. v. Landry, 11 K. U 
 590. < 
 
 (8) Simoneau f. The Queen, 2 Ex. (Can ) 391 ; Morin v. The Queen, 20- 
 S. C.R.sis. 
 
Con.' TRUCTiON ok the Railway. 
 
 a43 
 
 that, in consequence, he was obliged, either to suffer his land to 
 be overflowed, or to accept the burden of maintaining ditches 
 sufficient to carry off the water so collected and discharged ; and 
 the tloodiui; did not occur until five or six years after the con- 
 struction of the railway, and the flooding was not in consequence 
 ofnny defect or want of re|)air in the railway ditches or riilverts, 
 but bf'cause the boundary ditches were not kept open and in 
 good order ; it was held that what had ha|)|)ened could have been 
 foreseen, for it was obvious that the ditcher, on each side ol' the 
 railway would collect water and discharge it in the manner 
 menlioned. (i) 
 
 4. When the sutface water is drained off land by means of aitifi- Obstruction 
 cial drains, the company are now bound, (sec. 91 ) upon acquiring of water-''""" 
 lands for construction purposes, to restore such drains in the courses, 
 same manner as water-courses, properly so called, to their former 
 usefulness. Any agreements, therefore, in regard to transfers 
 of land to railway comi)a!iies under the Railway Act will neces- 
 sarily be made under the assumption that the company will not 
 impair the drainage capacity of the remaining portion of land. 
 
 If, owing to the construction of the road, the remaining 
 portion of land is flooded, by the inability of the surface water to 
 find egress through the drains, then, if the construction was 
 negligent in the light of sec. 91, compensation couKl be recovered 
 in an action for damiges against the company. (2) Where an 
 ;njui;Ction was taken to restrain a railway from interfering with 
 the plaintiff's water power and his mills by constructing an 
 embankment across his mill dam, it was held : that as the railway 
 works were actually constructed before the writ was served, the 
 injunction was not well taken, and that the plaintiff, having 
 allowed the question of his alleged damage to be submitted to 
 arbitration before serving his injunction, he thereby waived his 
 right to an injunction. (3) 
 
 SI 
 
 111! 
 
 ''1: 
 
 
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 1'^ 
 
 (1) //>. 
 
 (2) Vanhornr.lTie Grand Trunk Ry. Co., 18U.C.R. 356; 9U.C.C.P. 
 264 ; McGillivray v. The Great Western Ry. Co., 25 U. C. (}. K. 69 ; Moison 
 7\ Tlic Great Western Ry . Co. , 14 U. C. R. 109 ; Carron v. The Great Western 
 Ry. Co., 14 U. C. R. 192; Addison on Torts 763. 
 
 (3) Poudrette v. O. & Q. Ry. Co., 11 L. N. 130. 
 
 t !»,, 
 
 
344 
 
 Till. Railway Law of Canada. 
 
 
 Navigable 
 water. 
 
 Subsequent 
 purchaser 
 of land. 
 
 Duty of the 
 Crown. 
 
 a. In the erection of liridges the company are not to impede tlic 
 free navigation of any river, stream or canal, (i) Before any 
 bridge is biiill over navigable w.iters, the plan of the bridge and 
 tile proposed site of the woik must be submitted to tlie Railway 
 Committee for their approval. (2) The opening of swing bridges 
 or draw bridges over rivers or canals is also subject to the regu- 
 lation prescribed from time to time by the governor in council, 
 (3) also tlie height of bridges above the suifiice of the water 
 crossed. (4) Tiie governor in council may also reipiire the 
 substitution of one form of bridge for another. (5) 
 
 it. The subsequent purchaser of land adjoining a railway cannot 
 recover for damages to such land arising by reason of the 
 construction oi' the railway, where the former proprietor had 
 been compensated tor all damages occasioned thereto by the 
 railway i)assing over and across his lands, (6) excepting when 
 the injtiry is of an extraordinary or unusual nature. IJut it 
 appears that where a railway company diverts a water-course with- 
 out authority, and afterwards makes comi)ensation therefor to 
 the then owner of the land, the ])laintirrs predecessor in title, the 
 equitable casement thereby created in favor of the comjwny is 
 not valid against the registered deed of the plaintiff, a io/id fide 
 ])urchaser for value without actual notice ; the diversion being 
 wrongful as against tlie jilainliff. (7) 
 
 7. The Ciown is imder no obligation to repair or keep open the 
 boundary ditclics between farms crossed by the Intercolonial 
 Raihv.ay in the Province of Quebec. (8) 
 
 (1) Sec. 178. 
 
 in a case whore the Corporation of TinRwick sued the («. T. Uy. Co. for 
 damat;es caused to a biidjje they h.id built over a river l)y llie swelling of 
 the river in consenuence of defendants' bridge, it was Held ; that <inmages 
 were (hie, incluihng tlic cost of rebuilding plainti fTs' bridge, but only such 
 d.Tiuages as were sutTeied within a year previous to date of action. Corp. of 
 Tingwick 7'. G. T. R. Co., 3 Q. L. K. in (Q. U. 1877). 
 
 (2) Sec. 181. 
 
 (3) Sec. 179. 
 (41 Sec. 179. 
 
 (5) Sec. 182. 
 
 (6) Walliice 7: Tlie Grand Trunk Ry. Co., 16 U. C. R. SS' » Part- 
 lidge :. The Great Western Ry. Co., 8 U. C. C. P. 97. 
 
 (7) Tolton V. Can. I'.nc. Ry. Co., 22 O. R. 204. 
 
 (8) lierlrand ;•. The (^ucen, 2 Kx. (Can.) 285 ; Simoneau z\ The Queen, 
 2 Ex. (Can.) 391 ; Morin v. The Queen, 2 Ex. (Can.) 396, 20 Can. S. C. 
 R. 515. 
 
■ i 
 
 m 
 
 Construction of the Railway. 
 HigfliwayH. 
 
 1. Sections 183 to 190 contain regain tions affecliiif^ '^'yl'^vay interference 
 crossings. By sec. 186 the inclination of the ascent or descent, with, 
 as the case may be, of any approach by which any roadway is 
 carried over or under the railway or across it at rail level, must 
 not he greater than one foot of rise or fall for every twenty feet 
 of the horizontal length of puch approach, unless llie Railway 
 Committee directs otherwise. 
 
 The descent, even of the one foot in twenty, must be a gradual 
 and not an abrupt one. Wiiere the railway has excavated a portion 
 of the higinvay for the purposes of the railway, leaving tlie railway 
 at a certain point of the higinvay two feet six inches below its 
 level, the compr.ny will be liable for injuries resulting from the 
 dangerous condition of the highway to persons lawfully using it. 
 
 (0 
 
 By the present Railway Act, the crossing of railways ujion, 
 along, or across streets or other public highways, is now under 
 the jurisdiction of the Railway Committee. 
 
 The authority vested in the Railway Comniillee by sections 
 II and 14 of the Act, with respect to highways and streets over 
 and through lands of a railway company, can only be exercised 
 upon an api)lication or complaint made to it. In the absence of 
 any complaint or aj. plication, the general power of a Municipal 
 council, in the Province of Quebec, to order and lay oui roads, 
 is not restricted, and its proceediniis are valid. (2) 
 
 Where a ])rojected public ro.id witliin a municipality runs 
 across land of a railway company, it is necessary to obtain the 
 consent of the railway company, or the authorization of the Rail- 
 way Committee, to the laying out of such road, wlien the land 
 intersected by the road is actually used or required for the 
 working of the railway. (3) 
 
 Under the old Railway Acts, such jurisdiction belonged to the 
 municipal authorities. In such cases it has been held that 
 where a railway company constructed their railway along a high- 
 way in a municipality, the council whereof were not formally 
 
 (1) Grand Trunk Ry . t'. Silibakl, 20 S. C. R. 259. 
 
 (2) Corp. de St. Valentin f. Conieau, (i. R., 3 (J. 15. 104. 
 
 (3) lb. ; and see Parish of St. Liboire r'. G. T. R Co., 16 L. C. U. 198. 
 
 
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 TiiK Railway Law ok Canada. 
 
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 aiiplicd to for k'avc, hut r.iibscqiiemly passed a resoliilion nolify- 
 inj; llio railway ct inpany to fill ii]) the diicli existing on botli sides 
 of the railway, and to put down propor crossings, the corporation 
 had thereby admitted that the railway comi)any were lawfully in 
 occupation of the highway, and couM not aficrwards object, (i) 
 
 Also that the leave of the nnniicipal authorities, required before 
 a railway could be carried along . n existing highway, may be 
 granted at any time whether before, during, or after construction 
 of the railway, and need not necessarily be given by by-law. 
 And a Municipal Act, enacting that iIk- powers of township 
 councils shall be exercised by l)y law, must be onstiucd as 
 referring only to the exercise of powers of the council under the 
 Municipal Act, and not to poweis whi( h may be exercised under 
 a special Act passed for otiicr purposes or by another legis- 
 lature. (2) 
 
 The corporation having stood by while the railway was con- 
 structed, and subsequently for upwards of five years, while it was 
 in operation, and havi:ig also, by resolution, procured furtlier 
 exix'uditurc by tiie company, were held to be bound by 
 a<([uicscencc, and could not maintain an action for the removal 
 of the railway from the street. A corpo. ion ni.iy be bound by 
 iicquicscence as an individual may. (3) 
 
 'I'hc jirinciple that the |)crmission of the municipal authorities 
 to a r.iilway company, to Iniiid along and upon a street, and even 
 occupy the wh ile of it, may be ganted by mere lesoluiion, or 
 even inferred fiom tlitir acts or ac(]uiescence, and that such 
 per'iiission relieves the railway company f'om liability for 
 obstructing the street, lias been recognized in Ontario for many 
 years. (4^ And the Privy Council, in a recent Quebec case, 
 (5) has refused to interfere with this judicial interpretation of a 
 clause re-ena( ted time and again in liiu Railway Acts of this 
 country. In the case referred to, the railway company occupied 
 
 (1I Corp. Townsliij) of Pcml)roUe f. 'I'hc Canada Ctnlral Ky. Co., 3 O. R. 
 
 50.1 • ' 
 
 (2) Corp. Township of I'eniljroke r. The Canada Central Ry. Co., 3 O. R. 
 
 503. 
 
 (3) ^''• 
 
 (4) Rr(;ina :■. G. T. R. Co., 15 L'. C. Q. li. 121; //; re Day and the Town 
 of Giiclpli, 15 U. C. i). H. 126. 
 
 (5) .Mty. (Jenl. (Casgrain) v. Atl. &, N. W. Ry. Co., II R. May (confirm, 
 ing tlio judgment of the (JiielKC (-ourt of Appeals, (,). R. 2 (). 15. 305). 
 
 
Construction of the Railway. 
 
 247 
 
 
 the who'e of an alleged ))ublic street with tlicir works. On a 
 suit by the Attorney Cieneral at the instance of a private relator, 
 to re open the street, it was held that inasmuch as by plans, 
 su'jmitted to and approved oy tlie Municipal Council, it was 
 shewn that this street wo'.ild be closed by the works, there was a 
 virtual permission granted by the council to close the street, and 
 that the com|)any were acting within their ]K)\vcrs, though not 
 exjjpcssly authorized by either by-law or resolution to close the 
 street. 
 
 The Courts have been frequently called upon to decide ques- 
 tions arising in actions of damages by proprietors whose i)ro- 
 peuy ibutted upon streetj or highways along which a railway 
 was cnied under this provision of the former Acts. In the case 
 of Lanunrt v. Corporation of Three Rivers, (i) the Quebec 
 Court of Appeals decided tliat where the works for the con- 
 struction f)f .1 railway authorized by statute, i)assing in the street 
 of 1 town, injure the property of an individual, his action for 
 damages would lie against the railway company, and not against 
 the corporation. In another case of the City of Three Rivers v. 
 Louis Lcssari/, (2) the same court re-aftlrmed this principle, hold- 
 ing that a municipal corporation is not resijonsible for damages 
 caused to a property by works constructed in a street by a rail- 
 way company authorized by statute to make such works ; and 
 if the works cause damage, they should be claimed from the com- 
 pany and not from the corporation. Again, in a case of Kenaud 
 V. City 0/ Quebec, {i) it was held that the location and con- 
 struction of a railway, and the passage of its trains in one of the 
 streets of Quebec, was a use to which the street had not been 
 destined to be put, and that the corporation could not, without 
 being authorized by a special act, permit such construction nor 
 the passage of trains, and the corporation, by authorizing such 
 construction and passage of trains, committed an illegal act, and 
 rendered itself jointly and severally liable with the railway for 
 damages to the abutting proprietors. This case could only be 
 supported, on the ground that the city had not given the neces- 
 sary permission as required by the statute (16 Vic, cap. 100). But 
 
 I. 
 
 35 
 
 ;] 
 
 i 
 
 •:i;r 
 
 ! I 
 
 :« 
 
 !'•• 
 
 l!i^ 
 
 t I. 
 
 1 1 
 
 I 
 
 (1) 10 R. L. 359. 
 
 (2) 10 R. L. 441. 
 
 (3) 8 Q. L. R. 102. Reversed in Appeal. See Ramsay's Digest, p. 214. 
 

 248 
 
 The Railway Law ok Canada. 
 
 in the Supreme Court, in the case oi Lcfthvre v. City of Quebec^ 
 (i) it was hi Id that where the owner of several house sabutling on 
 a street, througli which a railway was authorized to pass both by 
 statute and resolution of the city council, took action against the 
 city corporation for damages suffered on account of the con- 
 struction and operation of the railway, the owner had no rigjit of 
 action against the corporation. The reasons given being that if 
 the corporation gave the authority in compliance with the statute, 
 there was a complete justification of the acts complained of. In 
 that case, the corporation merely gave the railway comi)any 
 liberty to choose one of the streets in the town ; and although 
 they were subsequently informed of the choice made by the com- 
 pany, and asked to take steps to legalize the line, they took no 
 further action. Under these circumstances, it was held that the 
 recourse of the abutting proprietor, if any he had, was notagainst 
 the city corporation, but against the railway comjjany. 
 
 As has been already pointed out, the damages which a pro- 
 prietor may recover from a railway company acting within its 
 jjowers must be the result of a loss peculiar to himself, and 
 differing in kind from that suffered by the community generally, 
 and this principle has been applied to the case of loss or 
 inconvenience suffered by a proprietor owning land abutting 
 upon a street through which the railway has been i)ermitted 
 to run. In the case of Brodciir v. t/ie Corporation of Roxton 
 Falls and the South Eastern Raihioay Company, (2) it 
 was held that in order to maintain an action of damages 
 against a railway company because of the running of tlie railway 
 over a public highway adjoining the resid'Mice of the plaintiff", 
 and obstructing his egress and ingresS; it is necessary for the 
 plaintiff to prove that the immediate access to his premises is 
 affected, and that he has sustained damages particular to himself 
 and differing in kind fiom that of the public. That is to say, 
 that if his access is not cut off by the railway, but that he merely 
 suffered ii.convcnietice not different in kind, though greater in 
 deg! ee, tiian other proprietors along the street, he would not be 
 entitled 10 compensation. This principle was re-affirmed in the 
 
 (i) Cassel's Dig. 176. 
 (2) 1 1 K. L. 447. 
 
 ■A 
 
 ! 
 
Construction ok the Railway. 
 
 249 
 
 case of WnUficld against the A. A; N, V/. Railway, (i) where 
 tl;e plaintiff, a proprietor of land abutting on a street in the town 
 of Iberville, soi ght to restrain the railway company, by injunc- 
 tion, from constructing and operating its railway along the street 
 in front of his property. Tlie injunction was refused, ui)on the 
 same ground as that stated in liiodcur''s case, namely, that the 
 damage which the plaintiff claimed to have suffered resulted from 
 an inconvenience whicii was the same in kind as that suffered by 
 the other proprietors along the srrcet and the inhabitants of tiie 
 town generally, and was not one which was a subject of com- 
 pensation under the Act, and that therefore the railway company 
 was not bound to pay compensation before proceeding with its 
 work. (2) The case would be otherwise, had the railway com- 
 pany caused particular and sjiecial damage to tiie property of the 
 proprietor, as was held by Privy Council in the town of ParluiaU 
 V. West, (3) where the railway company lowered tlie level of the 
 street so as to immediately and directly affect the access to the 
 plaintiff's ])roperly. In the Brodcur case, it was also held that tlie 
 municipality, having tolerated the laying and using of the railway 
 along tlie street in question, would be thereby estoppe i from 
 urging that its construction and use was unauthorized by them. 
 
 Notwithstanding any liability which may be cast by statute 
 upon a railway company, to maintain and repair a bridge and 
 its approaches by means of which a highway is carried over their 
 railway (4) such highway is still a public highway, and as sucij 
 comes within the provisions of a Municii)al Act recjuiring every 
 public road, street, bridge and highway to be kept in repair liy 
 the municipal corporation, who are net absolved from liability for 
 defiiult by the liability, if any, of tiie railway company. (5) 
 
 Where a public load or highway is carried over the rail- 
 way by a bridge, it has been held, and may be now considered 
 as settled, that the railway company is bound to keep the road- 
 way upon the bridge in repair, the roadway being considered as 
 
 
 
 'I ^ 
 
 
 (1) S. C. 1888,33 L.C. J. 24. 
 
 (2) And see IJourdon v. Hernard, 15 L. C. J. 60 ((>. B. 1870). 
 
 (3) 12 .App. Cas. 602. 
 
 (4) As to liability of Ry. Co., see Fairbanks v. Great Western Ky. Co., 
 35 U. C. g. B. 523, and G. T. R. v. Godbout, 6 Q. L. R. 63. 
 
 (5) Mead;'. Township of Etobicoke, 18 O. R. 438. 
 
 m 
 
 X'k 
 
»50 
 
 'I'li'c Railway Law uv Canada. 
 
 jiari of tlie liriilgc which tlie railway company would be liound to 
 kceji ill repair. This w.is held in Knghiid in the case of the 
 JL<tfU(ts/iif r it Vorks/tiri- Ry. Co. v. 'I he Afnyor ami Corporixlio/i 
 of /hiry, (i) by the Mouse of Lords confirming the decision of 
 the Ciiiiil of Ajipeal. .Arguing from analogy, it would seem that 
 if the highway were carried under the railway by means of a sub- 
 way or tunnel, th • portion of the roadway beneath the embank- 
 imiit of the r.ilway would also iiave lo be kept in repair by the 
 railway company ; and in either case, the railway company would 
 be liable for any damage caused to any person using such road- 
 way, on such bridge or in such tunnel, by reas(jn of its noti)eing 
 in pioper suite of repair. The result of such a decision as that 
 of the House of Lords in the Lanctis/iirc A- Yorkshire Ky. Co. 
 \w'vj\\\. be very far leaching. For instance, where a railw.iy is 
 carried for a considerable distance under the streets of a town, 
 aiui ihe portions of the street thus tunneled under are sujjportcd 
 by archways or bridges upon which the streets are supported, it 
 niiglii be ii serious question as to whether tlie railway company 
 Would not be liab'c for any damage caused by these portions of 
 the sticeis being out of repair, and whether there would not be 
 an obligation upon them to keep these portions of the streets in 
 proper order. 
 
 Wliere an act provides ihat the approaches f(jr loo feet lo and 
 nt.xt adjoining each end of all bridges shall be kept up and main- 
 tained, it was held, that the word "approaches" means all such 
 ariifnial structures as may be reasonably necessary and conven- 
 ient for the purpose of enabling the public to i)ass from the road 
 on to the bridge and from the bridge on to the road, and does 
 not include the highway to the distance of loo feet from eacli 
 end of the bridge, at all events, unless the artificial structures 
 extend so far. (2) 
 
 I'he Act provides that the railway shall not be (-arried 
 along au existing highway, but shall merely cross the same 
 in the line of the railway, unless leave therefor has been 
 obtained from the railway committee, and that no obstruction of 
 such highway with the works shall be made without turning the 
 
 (i; r4 App. Cas. 417. 
 
 (2) I'raversy v. Gloucester, r5 O. R. 214. 
 
CoNSTKUCTUm OK THE RAILWAY. 
 
 as* 
 
 1 
 
 i 
 
 liigliway so as to lc;ive an open and good p issagt- for carriages, 
 and on completion of the worlts, replacing tlic liigliway. (i ) 
 
 It is evident that the provisions of this clause as to olistriic- 
 tion of "'such higliway " must refer to the case of the railway 
 ( rossiiii; a 'lighway, and not l)L'ing carried along it, by |)ermission 
 of the raihviiy committee. Kor in certain cases, which may easily 
 be im igined (and some have -.icliially occurred), the conslriiction 
 of the railway along a highway would result in the complete or \)ar- 
 tial blocking of the highway, and even in its being entirely ab- 
 sorbed by ihi' railway : which would, of course, make it im|)ossil)lc 
 to " replace " the highway. This interpretation has been placed 
 upon similar provisions of the previous Railway Acts, (2) which 
 differed only from the present .\(:t in that tin leave of the |)roi)er 
 locil or municipal authority had lo be obtained instead of that 
 of the railway connniltee. l"'rom a very eaily period in the history 
 of railw.iy legislation in this country this interpretation has been 
 adojued, (3) and the legisl.iture, with a jiresumed knowletlge of 
 the judicial interpretation jjlaced uytun tiiese i>rovisions, has 
 never altered their phr.iseology, except as above indicated, though 
 frequently aniending the .Act in other resjiecls. In a very recent 
 case (4) the Privy ('ouni il refused to interfere with the judicial 
 inierpreialion thus placed upon these clauses ; and held that a 
 railw.iy company was acting within its powers in entirely closing 
 a city street, by constructing its endxmkment along it with the 
 permission of the city council. 
 
 This permission need not necessarily be by by-law, (5) nor 
 even by formal resolution ; it may be imijlied from the acts of the 
 municipality, such as the apinoval of the railway company's 
 plans, or allowing the works lo be complcteJ and used, without 
 protest. (6) 
 
 (1) Sec. 183. 
 
 (2) U. S, C, cap, 109, s. la ; and acts consolidated thereby. 
 
 (3) Rugina r\ G. T. K. Co . 15 U. C. Q. U. 121 ; in -• iMy v. The Town 
 of Uiielph, ibid. 126 ; and see Howe v. The H. & N. \V. Ry.Cc, 3 Ont. A. 
 
 (4) Casgrain v. A. & N. W. Ry. Co., 1 1 R. May. 
 
 (5) kigina :: G.T. K. Co., 15 U. C. Q. IJ. 121 ; /// ;r Day z>. The Town 
 of liiiilph, ibid. 126. 
 
 (6) C.nsgrain f. A. & N. W. Ry. Co., 1 1 R. May.; I'enibroke 7\ Can. Cen- 
 tir.i Ky. Co.,3 O. R. 503. 
 
 
 ' 
 
 L 
 
 t 
 
 '1 
 
 • ', 
 
 '' 1 
 
 1 
 
 , 1 
 
 !i 
 
 ... ' 
 
 1 ^ 
 
 
 7 
 
 i 
 
 
 X 
 
 % 
 
 vi 
 
 If 
 
V 
 
 25i« 
 
 The Rajlway Law ok CanaD/v. 
 
 
 M i I 
 
 ^1 • 1 
 
 After comi)lctioii of the work of croSiv"iig a highway, the same 
 nuist l)e replaced, and no obstruction of the highway shall be 
 made ; but so long as the rails do not rise above or sink below 
 the line of the higlnvay more than one inch, they are not deemed 
 an obstruction, (i) If an accident occurs at the crossing by a run- 
 away, and the wagon is broken at the crossing, if the rails pro- 
 trudf.' more than one inch, this is not /iri/zui facie evidence of 
 negligence on the i)art of the railway comiiany, but it is a ques- 
 tion for the jury to determine whether such projection of the 
 rails was the cause of the accidiMit or not. (2) 
 
 The general principle to be api)lied to cases of railways con- 
 structed across or along highways is that the comiiany is not liable 
 so hug as the railway is pro])erly constructed in accordance with 
 the provisions of the .Act, and without negligence. This is the 
 same principle which has been already freipiently mentioned, and 
 its application comes up in so many different cases and under such 
 varied circumstances as to make it necessary to keep it always in 
 mind. For instance, referring to the jiarticular instance of a railway 
 constructed along or across a highway, the d uuage caused to 
 l)ersons or vehicles by striking against tl.e rails, and being upset 
 or damaged thereby, would not be recoverable from a railway 
 company, jirovided that the rails were laid in accordance with the 
 provisions of the .Act. This -doctrine was recognized by the 
 Quebec Court of .Appeals, and confirmed by the .Supreme 
 Court, in a case of Parker v. The Montreal Street Railway 
 Co. (3) where the diiver of a vehicle was injured by the 
 upsetting of his wagon in consequence of coming in contact 
 with one of the rails laid by the company in one of the 
 streets in Montcal. The charter of the company and the 
 by-laws of the city authorized the railway to belaid with rails 
 of a particular pattern, which were not to exceed the level of the 
 street by more than one inch, and both Courts recognized the 
 principle that if the rails had been laid in accordance with such 
 by-law, the company would not be responsible for the damage 
 resulting from the accident ; but the Supreme Court decided, as 
 a matter of fact, that the rails had not been so laid, and that the 
 
 (1) Sees. 183, 184. 
 
 (2) Thompson v. The Great Western Ry. Co , 24 U. C. C. P. 429. 
 
 (3) 7 L. N. 194, Cassel's Dig., p. 73'- 
 
CONSTRUCrioN OK THK Rail\va\. 
 
 253 
 
 J 
 
 c^- 
 
 ^ 
 
 wciglu of ilic evidence showed tliat tlie lieiglit of ilie rails exceeded 
 the statutory limit. 
 
 Another application of this principle may be instanced. A 
 street railway company was authorized lo lay its track '' along 
 the hiyhways in the parish of M." '■ ding into the streets oTthc 
 city. It w:is held, tiial I he company in layin^' its track incon- 
 veniently close to the property on one side of the In'giiway, and 
 tluis apparently favoring the properly on the other side, had not 
 exceeded its powers, and an action f(jr the abatement of the 
 nuisanie was dismissed, (i) 
 
 In the line of a ditch formerly running at the side of 
 the highway, and several feet within tiie limits of tl e highway, a 
 railway company ("onstructcd an open culvert of sipiare timber 
 about five feet deep and seven feet wide. A i)erson walking along 
 the road fell into the culvert and was injured. Tiie Court held, 
 that the company were liable for not restoring the highway to 
 its former state or in a sufticient manner not to impair its use- 
 fulness. (2) 
 
 Provisions arc made by sections 185 and 186 as to the dimen- 
 sions of bridges carrying the railway over iiighwa)s and the 
 inclination of the roadway beneatii such bridges, and of the ap- 
 pioaches, whether the roadway is carried over, across or under 
 the railway, and as to the proportion of the cost of providing 
 for the fencing of such approaches and bridge.-; to be determined 
 by the Railway Committee. (3) 
 
 tj. In any event, the construction of the railway along or across Approval of 
 
 any street is subject to the condition precedent of the company's I^a'lway 
 
 / . . , J n ' 1 1 • r (-ommittee. 
 
 submittmg a plan and i)rofile ot the proposed construction for 
 
 the approval of the Railway Commi'tee. And in the case of 
 
 railways constructed before the Act, the Committee may require 
 
 5^ 
 
 /} 
 
 t. 
 
 X 
 
 in 
 
 
 (1) The Ally. Genl. r. The M. C. P. Ry. & The Trustees of M. Turnpike 
 Koads, I L. N. 580, S. C. Que., 1878. 
 
 (2) Fairbanks v. Great Western Ky. Co., 35 U. C. Q. H. 523. 
 
 (3) Where .: railway crosses a highway, and the road is carried over the 
 raitw.iy by means of a bridge, liie railway company are bound to keep in 
 repair the roadway upon the bridge ; such roadway being part of the bridge 
 which the company are to maintain. Lan. & Y. Railway Co.i'. Mayor, etc., 
 of Kury, 14 App. Cas. 417 (affirming the Court of Appeals) ; and see Van 
 Allen V. G. T. R. Co., 29 U.C. Q. B. 436. 
 
 I-l 
 
 n 
 
 
 ■Mi 
 
 m 
 
254 
 
 TiiK Railway I-aw ok Canada. 
 
 111 
 
 
 • such plan and profile to be submitted within such time as they 
 may direct, (i) 
 
 'i'lie Committee have power to determine the conditions upon 
 which the construction of the works shall be permitted, or upon 
 which the use of the works shall be continued in the case of 
 existing railways, in order to remove or diminish the danger 
 which might rise from the ])osiiion of the railway with regard to 
 the highway. (2) And tiie Conunitlee may make such orders as 
 they deem just and reasonable as to works and their execution, 
 and the apportionment of the cost. (3) 
 
 'J'hcso provisions would appear to apply only to highways 
 existing at the time of the construction of the railway, and if 
 any highway or street is afterwards opened by a municiiiality, 
 which is intended to cross the line of the railway, special 
 api)lication would have to be made to the Railway Committee 
 to decide the question as to whether the railway company were 
 bound to make provision for such crossing either on the level or 
 by means of a bridge or subway. The municipal corporation 
 could not compel the railway company, excejjt by order of the 
 Railway Committee, to allow them to construct a road or high- 
 way across the railway, or any ditch or sewer, water, gas or 
 other pipes. (4) Previous to the present Act, it would seem 
 that no such works could be constructed across, over or through 
 any lands of the Company. It wis so decided in Quebec in the 
 case of T/ic Corf-oration of the I'tirish 0/ St. Liboire v. The 
 Grami Trunk Kaihiuiy Co. (5) as long ago as 1865. There the 
 municipality, after the railway had been constructed, opened a 
 new road, and by their proih-vcrbal, provided that it should 
 cross the railway at a certain point. On the company refusing 
 to construct a bridge to carry the road across the railway, they 
 took action to compel them to do so ; it was held by the Court 
 of (Queen's Bench, confirming the judgment of the Court below, 
 that the municipality had no fight to impose on the railway any 
 obligation of performing works in relation to public roads, inde- 
 pendent of those required by the railway itself. 
 
 (I) Sec. 187. (2) Ibid. 
 
 (3) sec. 188. (4) sec. il 0/), 
 
 (S) 16 L. C. R. I9S, I L. C. L. J. 54. 
 
 ' 
 
 M. 
 
Construction of the Railway. 
 
 ■3D 
 
 3. The company are not necessarily guilty of a nuisance be- HiKlRes con- 
 cause their bridge, which connects two highways, is not of equal "^^y^"*^ "^ 
 width with the street, (i) When the railway passes tiirough a 
 
 public highway by a cutting below the level, and the company fail 
 toconnect such highway by a bridge within a reasonable time, the 
 remedy in such case is by indictment or information ; an indi- 
 vidual cannot maintain an action in such a case. (2) But where 
 a corporation had, by their labor and capital, made a plank road, 
 and were in consequence entitled under an Act of Parliament 
 to receive tolls upon it, their interest in the road was held to be 
 a peculiar one and distinct from the common interest which ti)ey 
 would have in it as persons entitled to use it for the purpose of 
 travelling, and they could therefore maintai.i an action of dam- 
 ages against a railway company for neglecting to make, within a 
 reasonable time, a pro|)er bridge over their railway wiicro it 
 crossed the i)laintiff's road. (3) 
 
 4. Sectior 190 enjoins iheerectionofsignboardsat every high- Signboards. 
 way crossed, and regulates the manner in which it shall be done, 
 
 It has hajjpened chat horses becoming frightened at objects on 
 the track have collided with tliese sign-posts and caused acci- 
 dents. In such case the company are not liable, provided tliey 
 place them in a reasonably proper manner, with a due regird to 
 all the surrounding circumstances. (4) The posts would not 
 necessarily be an indictable nuisance. (5) 
 
 Fnriii Crossings. 
 
 Under sec. 191 of the Act, railway companies are bound to 
 construct farm crossings for persons across whose lands the rail- 
 way is carried, convenient and proper for the crossing of the 
 railway by farmers' implements, carts and other vehicles. 
 
 It was decided in th.e Quebec cast; of The Grand Trunk Ry.Co. 
 V. lliiard, in appeal, (6) that the Grand Trunk Railway Co. were 
 
 (1) Reg. V. Great Western Railway Co., 12 U. C. Q. B. 250. 
 
 (2) Ward V. Great Western Railway Co., 13 U. C. Q. li. 315. 
 
 (3) Streetf'lle PI nk Road Co, r. Hamilton & Toronto Railway Co,, ' 
 13 U. C. Q. \y- 600. Hamilton & Brock Road Co. v. Great Western 
 Railway Co., 17 U, C. Q. B. 567. 
 
 (4) Soule V. G. T. R. Co., 21 U. C. C. P. 308. 
 
 (5) Ibid. 
 
 (6) Q. R., I Q. B. SOI. 
 
 'SJ.-I 
 ,,,, 
 
 ii> 
 
 '!■; 
 
 
 "'It' 
 
2^6 
 
 The Railway Law or Canada. 
 
 m • » 
 
 governed, in the matter of crossings, by the Railway Clauses Act 
 of 14 and 15 Vic, ch. 51, which was incorporated in its charter, 
 16 Vic, ch. 37, and that by that Act it was undoubtedly incum- 
 bent unon the company to construct farm crossings, the court 
 deciding that such crossings must be made for each lot of land 
 traversed, whether or not such lots were subdivisions of lands 
 orii^inaily expropriated. 
 
 It was also there held that the compensation made at the time 
 of the expropriation of tiie original lots of land could not be re- 
 garded as covering indemnity for lack of cros^mgs upon future 
 subdivisions of the lots. In the absence of an exjjress agreement 
 to that effect railway companies are not compelled to construct 
 farm crossings unless required to do so by statute, (i) But it is 
 now well settled that where the statutes, as in this country, pro- 
 vide for such crossings, the proprietor of lands severed by the 
 railway is entitled to the lecessary crossings reasonably sufficient 
 for t!ie beneficial enjoyment of his property, the nature and 
 number of such crossings to be determined by the court or upon 
 a reference. (2) Jlut where the cost of a subway or undercross- 
 ing would be ciuirely disproportionate to its value and the 
 value of the property, ihi company would not be compelled to 
 construct. (3) The language of the present Act is different from 
 that of the several Acts under which the cases of Canaita Southcrti 
 Railway Company v. C/oitsc, (4) 2/ie Queen v. Veziiia, (5) and 
 Brown V. The Toronto <(' Nipissing Railway Company (6) were 
 (i.jcided; and the reasoning in those cases, as to the obligation 
 ol the railway company to construct crossings in the event of 
 a future sub-division of the land after the construction of the 
 railway, would hardly seem to apply to cases under the present 
 Act. The decision in the case of Ittc Grand Trunk Ry. Co. v. 
 tiuaril, (7) recognizes the existence of such an obligation though 
 
 (1) See DeBloisr. The Queen, i P. E. I. Reports 434. Mills Em. 
 Domain, § 213 ; Vezina . . Tiie Queen, 17 S. C. R. i. 
 
 (2) Can. Southern Ry. Co. v. Clouse, 13 S. C R. 139 ; Can. Southern 
 Ry. Co. V. Erwin, 13 S. C. R. 162. 
 
 (3) Ibid. 
 
 (4) Supra. 
 
 15) 17 S. C. R. I. 
 
 (6) 26 U. C.C. P. 206. 
 
 (7) Q. R., I Q. 13. 501. 
 
 I» 
 
Construction of thk Railway. 
 
 257 
 
 under another Act ; as would also the decision in the Cauinia 
 Southern case, (1) while The Queen v. Vezina would seem to 
 deny it. But in the latter case the Court held that there was 
 no statutory obligation to construct farm crossings over govern- 
 nv.'nt railways. While an argument in favor of the latter view 
 may be founded upon the use of the word "carried " in section 
 191, as implying the progress of construction of the railway 
 across the lands, and that the obligation of the company being 
 confined to making crossings for those persons only across whose 
 lands tlie railway is carried, there is no such obligation towards 
 a i)erson acquiring land on both sides of the railway after it has 
 been constructed, because the railway would not be carried over 
 his land, yet the section seems equally susceptible of the more 
 liberal and equitable construction tiiat all persons whose lands are 
 severed by the railway, whether acquiring the lands in their origi- 
 nal state or as subdivided after the construction of the railway, 
 should be entitled to such crossings as would enable them to have 
 the beneficial enjoyment of their lands on both sides of the 
 railway. 
 
 The question has given rise to much controversy in the United 
 States, where, under the constitution, no person's property could 
 be taken from him, except for purposes of public utility and upon 
 payraeM of indemnity. (2) The latest decision hclds that there 
 is no " taking " in such a case, so as to bring it within the mean- 
 ing of the constitution. (3) In the Illinois Central Ry. Co. v. 
 Willenlwrg, (4) it was held that the statutory regulations in regard 
 to fencing railway tracks, and the construction of farm crossings 
 for the use of adjoining land owners, are police regulations, in the 
 strict sense of those terms, and apply with equal force to corpor- 
 ations whose tracks are already built as well as those thereafter 
 constructed. 
 
 According to this holding, the Railway Act of 1888 would 
 apply, in respect to the construction of crossings, to all railroads 
 previously constructed, even to those which were previously not 
 
 ill 
 
 (r) 13S. C. R. 139, 163. 
 
 (2) Cf. Que., C. C. 407, 
 
 (3) Chicago & N. W. Ry. Co. v. City of Chicago ; Supreme Court of llli- 
 .no'i!-, 1892 ; 24 Chicago I,egal News 186, 
 
 (4) 117 111. 203. 
 
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 required by their charters or general act to construct crossings. 
 The Act of 1888 would in fact be retroactive. 
 
 In the Quebec statute tlie provision is that "farm crossings 
 shall be made and maintained by the company upon the appli- 
 cation of any owner of land, present or future, on each such 
 land." (j) Patterson J. in Vezina v. T/ic Queen characterizes 
 this enactment as somewhat vague, and that the English version 
 is not a very happy translation of the French. (2) 
 
 Where the- company are bound to construct crossings, they 
 must be made within a reasonable time after the commencement 
 of construction at the joint required, and during tlie period of 
 construction. Where, during a i)eriod of two years, the company 
 had failed to connect the severed portions of the plaintiffs' lands, 
 it was held that the damages suffered by the latter in conse- 
 quence could not be regarded as compensated for by the original 
 indemnity which released the company of "all claims and de- 
 mands whatsoever that they (the jjlain tiffs) might have against 
 the said coini)any for the loss of occupation of the premises in 
 question, and generally of all rigiits and privileges resulting in 
 their favor, with respect to the portion of said farm required by 
 said company for their railway." (,^) 
 
 But it would appear that in Quebec, at least, no damages could 
 accrue where no time for constructing the crossing is mentioned 
 in the deed of sale, until the company are put in default ; and 
 that when no damages are proved to have been suffered by plain- 
 tiff after the company has been put in default, an action of dam- 
 ages will be dismissed. (4) Where, however, the statute alone is 
 relied upon for a crossing, it has been held in Ontario that the 
 company are bound to construct it without unreasonable delay, 
 and without request on the part of the n owner. (5) 
 
 The land owner has not an arbitrary right to prescribe the place 
 where the crossing is to be located, neither have the comijany an 
 
 (0 43-44 Vic, cb. 43,!=. 16. 
 
 (2) 17 S. C. R., p. 27 As to .il)antl()niiient of riylil to a ciosjing by s.ile 
 of land on one side of tbe railway, see Midland Ky. t. Giibble, 12 R., Nov. 
 
 (3; Smith :■. At'. & N. W. Ry. Co , M. I,. N., 5 S. C. 149. 
 
 (4) Cievier r. The Ontario i\: (Juebcc Ry. Co., 35 L. C. J. 58 
 tario see Sbaver 7. Great Western Ry. Co., 6 U. C. C. 1". 321. 
 
 (5) burke v. The Grand Trunk Ry. Co., 6 U, C. C. 1'. 4.S4. 
 
 In On- 
 
(!<iNsiKtcrioN ov Tin; Railway, 
 
 259 
 
 arbitrary right to fix the place without any :egard to its conven- 
 ience or usefulness to the land owner, (i) The company are 
 perhaps generally the best judges of the most suitable location 
 for a crossing, for, as said by Jcrvis C. J., in York (fc Nbrf/i Mid- 
 land Ry. Co. v. The Queen, (2) " By leaving the exercise of the 
 powers to the option of the company, the legislature adopts the 
 safest check upon abuse, — self-interest." 
 
 Farm crossings include passages across and upon the railway 
 itself, a bridge over, or a tunnel under the railway; (3) unless 
 the latter would be disproportionate in cost to the value of the 
 lands. (4) 
 
 A mandamus will not lie to com|iel a railway company to per- 
 form a statutory obligation, such as the obligation to construct 
 crossings, there being an adequate remedy by ordinary action. (5) 
 
 Uridines, Tunnels; Etc. 
 
 Sec. 192 regulates the headway to be maintained between the 
 tops of freigiit cars and the overiicad structure of bridges, 
 tunnels, etc., through wiiich the railway jjasses, viz., 7 ft. clear* 
 And by sub-section 2, no higher cars are to be used until bridges 
 are raised to correspond with the increased height of the cars. 
 Where a railway company raise a municipal bridge passing over 
 their railway and also the approaches thereto, as required to do 
 by sub-section 4, of section 192, without obtaining the consent 
 of the municipality or the owner, they arc liable to the adjoining 
 projirietor for the damage sustained by him by reason of the 
 increased height of the highway as it ap[)roaches the bridge^ 
 
 (6) ■ ; - 
 
 The Governor in Council may exempt companies from the 
 operation of this section (192) where air-brakes arc used, or 
 otherwise. (7) Trains may only run over a bridge, when such 
 bridge is constructed and maintained with safe-guards approved 
 
 (1) Burke v. G. T. R., 6 U 1 .' '. I'. 488 ; /;/ ;v Reist v. Grand Trunk 
 Ry. Co., 12 U. C. g. B. 675 J ibid. 6 U. C. C. P. 423. 
 
 (2) I K. & B. 865. 
 
 (3) Burke v. G. T. K., 6 L'. C. C- P. 488 ; Reist --. G. T. R, ib. 423. 
 
 (4) Can.ida Southern Ky.t'. Clouse, 13 S. C. R. 140. 
 
 (5) Diibuc V. Montreal & Sorei Ry. Co., 7 L. N. 5 ; C. R. Que. 1S83. 
 
 (6) Hill -'. G. T. R., 12 I,. N. 57, S. C. Que. 1888. 
 
 (7) Sub sec. 5. 
 
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 by the Minister of Railways, (i) sixmontlis delay being given to 
 conform to these requirements in the case of bridges already con- 
 structed. (2) 
 
 Where a railway company take over another railway under an 
 agreement to be in force twenty-eight years, and at the tinie of 
 taking over the latter is in default under section 193, and an 
 accident iiai)|)ens, in consequence, to a conductor, t' e company 
 operating the road over the leased line are not liable, as they are 
 not the owners of the bridge causing the accident, (3) the statute 
 enacting that "such bridge shall be constructed, recon- 
 structed or repaired at the cost of the company, or of the munici- 
 pality or other owner of the bridge." (4) 
 
 Trains must stop before passing a swing bridge. (5) And 
 this section is amended by 55-56 Vic, c. 27, by making an excep- 
 tion in the case of interlocking switches at such bridges. 
 
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 Fences and Catties Guards. 
 
 The liability of a railway company to fence arises by statute 
 only. There is no common law liability to fence, either as res- 
 pects the highway or as respects adjoining proprietors. (6) 
 
 The obligation to fence the railway under the present Act is 
 confined to the cases where the railway runs through a town- 
 ship, the municipal corporation for which has been duly organ- 
 ized, and which has been surveyed and subdivided into lots for 
 settlement in whole or in part, with a i)roviso as to New Bruns- 
 wick, Nova Scotia, and Prince Edward Island, for the protection 
 of improved or occupied lots of land, wherever a county muni- 
 cipality has not been subdivided into local municipalities. (7) 
 
 There is a curious omission here as to the Province of Quebec, 
 where there are many counties completely settled and organized 
 which are not divided into townships, and where the municipal 
 
 (1) Sec. 193. 
 
 (2) Ibid. 
 
 (3) McLauchlin v. Ciian 1 Trunk Ry. Co., 12 O. K. 418. 
 
 (4) Ry. Act, sec. 192, sub-sec. 3, 
 
 (5) Sec. 255. 
 
 (6) I Redfield, p. 491 ; Pierce,4oi; Wood, p. 1543; McMiHan ?■. Man. 
 & N. W. Ry. Co., 4 Man. 220; Wcslbourne Cattle Company r'. The 
 Manitoba & N. W. Ry. Co., 6 Man. 553. 
 
 (7) •'^'•"c. 194- 
 
CoNSTKUCnON dl' HIE RaH.WAV. 
 
 a6i 
 
 laws clearly distinguish between a township and a parish muni- 
 cipality. The point was taken in a Quebec case, wlierc the rail- 
 way ran through a parish municipality in a county where there 
 were no townships, that this section could not apply, and that 
 the liability of the railway company for failure to fence must be 
 governed by the provincial and municipal laws. But the courts 
 refused to entertain the distinction sought to be made, and de- 
 termined the company's liability under the section of the Dom- 
 inion Act. (i) The whole section is loosely drawn, and unsatis- 
 factory. Why the provision in favor of occui)icd or improved 
 lands in counties where there are no local municipalities should 
 be applicable to the Lower Provinces, and not to tl)c other Pro- 
 vinces, is diflicult to understand. Under ihc former Railway Acts 
 the obligation to fence was depciulent upon I'^e ci-nipany being 
 required so to do by the proprietors of the adjoining lands, (2) 
 but was not confined to lands in organized townships. And 
 though the obligation may be considered broader in a way 
 under the i)resent Act, as being an obligation to fence off the 
 railway, generally, as to the whole public, and not merely as 
 to any adjoining proprietor who may demand the fence; yet it 
 is not rc;»]ly so, as an adjoining proprietor, even of an improved 
 and cultivated piece of land, is deprived of the right to have his 
 property fenced from the railway, unless he resides in an organ- 
 ized township, or in the Lower Provinces. 
 
 The inttntion of the amendment to the Act was doubtless to 
 widen the responsibility of railway companies in cases of cattle 
 getting upon the track from adjoining lands, and being killed or 
 injured by passing trains. But notwithstanding this amendment, 
 and the amendments to the sub-sections governing the com- 
 pany's liability in such cases, the current of jurisprudence has 
 been almost unchanged on this question, as will be seen on 
 reference to the chapter on this question. (3) 
 
 The fepces to be constructed must be of the height and 
 strengtii of an ordinary division fence, (4) with gates, or 'oars, or 
 
 (1) Campl)ell f. G. T. R. Co., Q.R. 3, Q.B. 570. 
 
 (2) R. S.C., cap. 109, sec. — . 
 
 (3) ^»f>« P- '3- 
 
 (4) A fence dW^posed of 4 str.-inds of barbed wire only 3^ feet high, 
 with posts 12 to 14 feet apart, is insufficient. Landry v. North Shore Ry. 
 Co., 9 L. N. 5. 
 
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 sliding or Inirdic gates of siiflicient width, with i)roper fastenings, 
 at farm crossings, (i) and cattle guards al highway crossings, 
 suitable and sufficient to i)revent cattle and other animals from 
 getting on the railway. (2) 
 
 Under section 197, as amended by 55-56 Vic, cap. 27, at 
 every level crossing the fences on botli sides of the crossing and 
 of the track must be turned in to the cattle guards, so as to 
 allow the safe passage of trains. 
 
 It lias been held, under the Ontario statute, 46 Vic. , c. 18, s. 490, 
 sub-sections 15-16, which seemed to sanction barbed wire fences, 
 and empowered municipalities to provide against injury result- 
 ing from them, that when constructed by a railway company 
 upon an ordinary country road along the line of their railway, 
 they could not be treated as a nuisance, no by-law of the locality 
 in which the accident complained of in this case having been 
 passed respecting fences of the kind. (3) 
 
 The obligation to maintain fences on each side of the track 
 involves the duty of a continuous watchful inspection, and the 
 company must take notice of their stale at all times. (4) They 
 are not entitled to notice of their being out of repair. (5) 
 
 By section 198, gates at farm crossings are to be kej)! closed 
 by the persons for whose use they are furnished. And section 
 199 provides penalties for wilfully leaving them open, or taking 
 down any part of the fence ; besides imposing liability for 
 damages thereby caused. (6) But where the fastenings of such 
 gates are deficient, and in consequence cattle stray on to the 
 track and are killed, the plaintiff cannot be deemed to have adopt- 
 ed them as sufficient, by reason of his frequent use of them, (7) 
 and section 198 does not render it any less the duty of the com- 
 pany to provide and maintain proper fastenings for gates, as 
 
 (i) Hurdle gates merely field in position by tlieir own weigfit, without 
 pins or other fastenings, are not in compliance with the statute. Vernon v. 
 G. T. R. Co., 9 L. N. 203 ; M. L. K., 2 S. C. 181. 
 
 (2) Sec. 194. 
 
 3) Hillyard v. Grand Trunk Ry. Co., 8 O. R. 583. 
 
 4) Studer v. Buffalo & Lake Huron Ry. Co., 25 U. C. Q. B. 160. 
 (5) Ibid. 
 
 6) Apart from this provision of the statute, see Wood, p. 1544 ; Pierce, 
 402 ; I Redtield, § 128 ; and Roclieleau v. St. Lawrence & Atlantic Ry. Co , 
 2 L. C. R. 337. 
 
 (7) McMichael v. Grand Trunk Ry. Co., 12 O. R. 547. 
 
Construction ok hie Railway. 
 
 til 
 
 they are bound to do by section 194. (i) The company are 
 only excepted from liability for accidents so long as the gates, 
 having been properly constructed in the first place, are properly 
 maintained. (2) 
 
 It would api)ear that section 198, when it applies, imposes no 
 greater responsibility upon the land owners to keep the gates 
 closed than in respect of their own use of them. (3) Mill where 
 a proprietor allows a private road across his land, and the gate 
 opening from it to the railway to be used by the public, he is 
 responsible for the acts of persons using the road, and tlie rail- 
 way company is not responsible for the killing of animals getting 
 on 10 the railway through the gate being in bad condition owing 
 to such bad use. (4) 
 
 lutcrsoctioii of Riiilways. 
 
 V>y section 173 of the Act of 1888, the crossing of one railway 
 by another can only be made with the approval of the Railway 
 Committee, and this section lias been amended by c. 27 of 
 56 Vic, to include street railways of all kinds. In other respects, 
 such as ordering necessary apparatus to be adopted, (5 ) appor- 
 tioning expenses of carrying out such orders, when the com- 
 panies interested fail to agree (6) the Railway Committee have 
 jurisdiction. 
 
 Section 257, requiring that an officer shall be stationed atevery 
 point where two railroads cross each other at rail line, has been 
 amended by 56 Vic, c. 27, to provide for the case of street rail- 
 ways crossing the railway track, and in such cuse the conductor, 
 before crossing, must go forward and ascertain whether the track 
 to be crossed is clear. 
 
 All trains are to stop one minute before crossing the track of 
 another railway, unless when at the crossing an interlocking 
 switch and signal system or other device, which has the approval 
 of the Railway Committee, is in use. (7) 
 
 (1) McMichael v. Grand Trunk Ry. Co., 12 O. R. 547. 
 
 (2) Sec. 196. 
 
 (3) McMichael v. G. T. R., 12 O. R., p. 556, opinion of Armour, J. 
 
 (4) Jasmin v.C.P. Ry. Co., 6 L. N. 163. 
 
 (5) Sec. 175. (6) Sec. 176. 
 
 (7) Sec. 258, amended by 56 Vic., cap. 27. 
 
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 Where railways under provincial charters intersect with Domi- 
 nion railways, such provincial railways are under Dominion 
 jurisdiction in respect of all matters affecting such crossing or 
 junction. (1) And by sec. 4 of The Railway Act, it is provided 
 that all the provisions of the Act relating to railway crossings 
 
 and junctions apply to all persons, companies ar.d railways, 
 
 whetlier otherwise within the legislative authority of Parlianjent 
 or not. 
 
 Now, it will be noticed that section 3 of The Railway Act ex- 
 cepts government railways from its operation, but section 4 
 makes no such exception in regard to or mention of government, 
 railways ; and it has been held in Canadian Pacific Railmay Com- 
 pany \. Northern Pacific & Manitoba Railway Company, (2) 
 that whetlier a provincial railway is constructed as a public pro- 
 vincial work, or as the work of an incorporated company, the 
 Dominion Parliament has power to i)rovide that such railway 
 shall not cross or make a junction with a Dominion railway with- 
 out first making application to the Railway Committee of the 
 Privy Council of Canada. It is not sufficient merely to make 
 the application, but the consent of the Railway Committee must 
 also be obtained. (3) 
 
 It would appear that application must also be made to the 
 Provincial Commissioner of Public Works as well as the Domi- 
 nion Railway Committee. (4) 
 
 The decision of the Railway Committee upon all questions sub- 
 milted to them under the Act is final (5), but they may review, 
 or rescind, or vary any decision or order previously made. (6) 
 Besides the means provided by way of penalty of enforcing,' their 
 decisions or orders, it is provided by section 17 of the Act that 
 any of their decisions or orders may be made an order of the 
 Exchequer Court or of any Superior Court of the Provinces, and 
 can be enforced as any rule or order of the Court could ordinarily 
 be. In order to come to their decision, the Committee have 
 power to make an inquiry and to enforce the attendance of wit- 
 
 (I) Sec. 177. (2) 5 M.in. 30 1. (3) 5 M.m. 301. 
 
 (4) Credit V.nlley Ky. Co. v. Cire.it Western Ky, Co., 25 Giant's Chy. 507 ; 
 and see Can. I'ac. Ry. v. North I'ac. & Man. Uy. Co., 5 M.in. al page 313- 
 
 314. 
 
 (5) Sec 21. (6) Sec. 18. 
 
CoNSTKUCTK. . OK TIIK RaIIAVAY. 
 
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 nesses before ihcm, and to compel tlicm to give fvidcncc and 
 produce books, papers, etc.; (i) and the Committee or the 
 Minister of Railways may appoint any person to make an in(piiry 
 and report upon any questions submitted to them, and the person 
 so appointed, whether an engineer, commissioner or otherwise, 
 has also the same power to compel the attendance of witnesses, 
 and the giving of evidence, etc. (2) If the Committee think 
 fit, they may, upon the request of any party upon security i)eing 
 given for costs, etc., stale a case for the opinion of tlic Supreme 
 Court, upon any question which the Committee may tiiink in- 
 volves a point of law. (3) And the Supreme Court is bound to 
 determine any question of law so submitted, and give their 
 opinion to the Committee. (4) Wiiile the decision of the Rail, 
 way Committee is declared final, it is also provided i)y section 
 21, that any parly aggrieved by any decision or order of the Com- 
 mittee may })etition the Governor-in-Counril, who may in his 
 discretion rescind, change or vary such order as he deems just 
 and proper. Although it is not likely that the whole council 
 would, without grave cause being shown, advise the Governor to 
 rescind an order of a Committee composed of certain of its mem- 
 bers, still, no doubt the object of this provision of the Act is to 
 give either party an opportunity of having the opinion of the 
 whole of the Privy Council upon the questions submitted. 
 
 The right of reference to the Supreme Court on a question of 
 law has very seldom been exercised ; but one striking instance 
 of it may be mentioned of the celebrated Manitoba Railway 
 Crossings case. (5) There the Railway Commissioner of Man- 
 itoba was authorized by a local statute to construct a railway 
 from Winnipeg northwards, crossing the main line of the C. P. Ry. 
 The latter company contested the right to cross its railway, and 
 on an application being made to the Railway rommiltee, the 
 point was raised that such a line connecting with or crossing 
 its main line could not be constructed under the Provincial Act, 
 as it was a work under the exclusive jurisdiction of the Parlia- 
 
 (I) Sec. 13. (2) Sees. 12 and 13. 
 
 (3) Sec. 19. (4) Sec. 20. 
 
 (5) On an application by the Railway Commissioner of Manitoba, with 
 reference to the Red River Valley Ry. Co., dated loth Sept., 1888, Cassel's 
 Dig. 487- 
 
 
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 mint of (."aiuida, and that the Art of the I-cj,'islature of Manitoba 
 aiithorizinj; the construction of llic local railway was unconstitu- 
 tional. The Railway Committee granted a reference to the 
 Supreme Court upon this ([uestion of law, and the Court gave 
 tlie opinion that the Act of the local Legislaiuie was constitu- 
 tional, and within the jjowcrs of that body, and that the crossing 
 could be legally made. As is usual on such reference, the 
 Sujireme Court gave no reasons for their opinion, and it is 
 therefore im|)ossil)le to say upon what grounds it was based ; but 
 the (piestion at issue was partly a (X)nstitulional one, and partly 
 one depending upon the construction of the special Act incor- 
 porating the C. I'. R. Co. 
 
 & 
 
 
 
 
 PreHcriptioii or Liiiiitutioii of Actioim. 
 
 There has been much controversy and divergence of opinion 
 relative to sec. 287 of the Railway Act and corresponding sections 
 of Provincial Acts. Under this section all actions or suits for 
 indemnity for any damages or injury, sustained ''by reason of 
 the railway," must be commenced witiiin onj year next after the 
 time when such supposed damage is sustained, or if there is con- 
 tinuation of dimage, within one year next after tiie doing or 
 committing of such damage ceases, and not afterwards. It also 
 provides that the Company may plead the general issue, and give 
 this Act, and the special Act, and the special matter in evidence 
 at any trial to be had thereon, and may prove that the same was 
 done in pursuance of and by the authority of the Act or of the 
 special Act. 
 
 It has been urged on the one hand that the words of this sec- 
 tion are so general in their terms as to include every species of 
 damage or injury which migiit be caused either by the construc- 
 tion or the operation of the railway, and equally strenuously 
 urged on the other hand, that the intention of the legislature was 
 to confine the limitation to cases of damages or injury resulting 
 from the construction of the railway itself, limiting the meaning 
 of the words " by reason of the railway " to their narrowest 
 sense, — that is to say, damages caused by reason of the railway 
 and not by the running of the trains upon it. In Ontario, the 
 wider interpretation hn;- been adopted by the highest courts in 
 
 ■m 
 
CONSI RUCTION OK THK R All. WAY. 
 
 267 
 
 tliat province, and actions for injuries to person and property sus- 
 tained as a result of tlie working of ilie railway have Itein held 
 to he sul)ject to the limitation imposed by this section ; wiiilc in 
 the Province of Quebec the jurisprndeni c seems to be inclined 
 in the opposite ilirection, namely, to confine the meaninj^ of the 
 section, and similar sections, to cases of damaj^e caused by the 
 railway itself, — tliat is, by the construction of the railway and 
 works in connection therewith, (i) I'he latter view has been 
 sustained in the Supreme Court, in the case of AfilVi/Zir v. 
 T/if Grand Trunk Railw ly Co., (2) where, in an action taken 
 against the com|)any for damages caused to buildings by fire 
 communicated by sparks from the locomotive, the company 
 pleaded the statutory limitation, and it was held by the (Quebec 
 Court of Appeals, and maintained by the Supreme Court, thai the 
 limitation did not apply in such a case, the loss being caused by 
 negligence in the operating and running of the trains, and the 
 intention of the statute being to fix a limitation upon the com- 
 pany's liability only in case where the loss occurred by reason of 
 the railway without negligence. 
 
 It was stated by Gwynne, J., in the last mentioned case, (3) 
 that the language of the last part of the section shows that what 
 is meant is damage done by the railway itself, and not by reason 
 of the default or neglect of the company owning the railway, or 
 of a company having running |)owers over it, by reason of in- 
 sufficiency in the construction of the engines used, or of negli- 
 gence in the manner of running them upon the railway. 
 
 The vaiious holdings of the Ontario courts as well as some of 
 the other i)rovinces may be illustrated by the following cases : 
 
 'I he careless handling of machinery by railway servants, result- 
 ing in damage thereto, is not " damage or injury sustained by 
 reason of the railway ;" (4) but injuries received through a 
 collision are. (5) Any damage done through negligence upon 
 
 (1) Marshall v. G. T. R. Co., i L. C J. 6 ; Boucherville v.G. T. U. Co., 
 I L. C.J. 179 ; Germain v. Montreal & New York Ry. Co., 6 L. C. R. 
 172 ; Pigeon v. City of Montreal, 9 L. C. R. 3.H> 3 L. C. J . 294 ; Marche- 
 terre ?-. O. & Q. Ry. Co., M. L. R., 4 S. C. 397. 
 
 (2) M. L. R., 5 Q. B. 122, 13 L. N. 217, 17 S. C. R. 511. 
 (n) 17 S. C. R.,at p. 514. 
 
 (4) Whitman v. Western Counties Ry. Co., 5 Russ. & Geld. 405, Nova 
 Scotia, 1884. 
 
 (5) Conger v. G. T. R , Com. Pleas. Div., 13 O. R. 160, 1887. 
 
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 'I'liE Railway Law ok Canada. 
 
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 a railway in the carriage of passengers and the like is damage 
 done "by reason of the railway." (i) Where defendants had 
 negligently allowed dry wood to accumulate on the railway, which 
 took fire from sparks dropped from defendants' locomotives, such 
 was held lo be damage sustained by reason of the railway. (2) 
 Where the defendants neglected their statutory duty to construct 
 fences, whereby cattle got on the line of their railway, and from 
 thence on to the plaintiff's land, doing damage there, such damage 
 was held to be damage by leason of the railway. (3) Therailway 
 limitation clauses do not apply to damages arising from the loss 
 of baggage; ihcy apply only to actions for damages occasioned 
 by the company in the execution of tiie powers given, or 
 assumed by them to be given, for enabling them to maintain 
 their railway. (4) Where the plaintiff, who was lawfully on the 
 street, was obliged, through the carele-s driving of a street car, 
 to savehimself by jumping into a drain, and was hurt; it was held, 
 that the injury was sustained by " reason of the railway." (5) 
 Such limitation clauses protect the railway company in an action 
 for a collision at a railway crossing by which the plaintiff was in- 
 jured, and wiiich was caused by the neglect to ring the bell or 
 sound the whistle on the locomotive. (6) Where a railroad 
 company enter lands and cut down trees for the purpose of 
 making their roadway, without previously assessing and paying 
 compensation, they are not thereby barred from the protection 
 of the limitation clause in the Railway Act. (7) 
 
 Since the decision of the McWillie case, however, it has been 
 recently held by the Ontario Court of .\ppea!, (S) that where a 
 person was killed by a fall from a bridge, part of a highway, 
 which crossed the defendant's line, and had been negligently 
 allowed by them to be out of repair, this was not " damage sus- 
 
 (1) May 7'. O. & Q. Ry. Co., Q. 15. D. 1885, 10 O. R. 70. 
 
 (2) McCallumr. G.T.K., ,^i U. C. Q. 15. 527. 
 (j) 15rown v. Ci. T. R., 24 U.C.Q.15. 350. 
 
 (4) Anderson v. C. P. R., 17 O. R. 747, cor-firined in Appeal, £7 O. A, 
 R. 480 ; Rolierts v. Great Western Ry. Co., 13 U. C. Q, B. 615, followed. 
 
 (5) Kelly V. Ottawa Street Ry. Co., 3 O. A. R. 616 (1879). Following 
 Auger V. Ontario, etc., Ry. Co., 9 U, C. C. P. 164 ; Brown v. Hrockville 
 & Ottawa Ry, Co., 20 U. C. Q. B'. 202. 
 
 (6) II). .and see May v. Ont. & Que. Ry. Co., 10 O. R. 70. 
 
 (7) Mc.Vniiur i). Northern Pacitic Junctio 1 Ry. Co., 17 Ont. App.86. 
 
 (8) Zimmer v. Grand Trunk Ry. Co., "892, 19 O. A. R, 693. 
 
CONVIRULIION Cl' JHK RaILWAV. 
 
 2(h) 
 
 tained by reason of the railway," and that the limitation clauses 
 of the Railway Act, sec. 287, did not apply. 
 
 Tlie true view would seem to be that the limitation should 
 only apply in cases wiiere the damage is strictly by reason of 
 the railway, within tiie literal meaning of those words ; on the 
 principle that all short limitations, being exceptions to the general 
 or common law, should be interpreted strictly against those in 
 whose favor they are made, and that in all cases of injuiy caused 
 by negligence in the working or operation of the railway, the 
 right to recover damages siiould be governed by the limitations 
 or prescriptions established in ordinary cases of negligence. 
 
 As to continuation of damages, the Supreme Court has recent- 
 ly held, that where a railway company entered upon the land of 
 an adjoining proprietor, and, by the making of excavations tiierc- 
 on, destroyed a right of way over the land in favor of a third 
 party, the latier's right of action was extinguished by the lapse 
 of one year from the date when the work of excavation ceased, 
 (i) This decision would seem to conflict wiiii previous holdings 
 of the Ontario Courts ii the cases of 7/ie Toionship of Brock v. 
 loronto & Nipissiii}^ Railioay Company ; (2) and Beard v. 
 Credit Valley Railway Company ; (3) where it was lield, that 
 a similar section of the Ontario Act did not api)ly to the case of:' 
 railway company wrongfully taking cartii from the plaintiffs land. 
 
 Where there is a continuance of the act causing the damage, 
 the courts in Ontario have held that the action can only be 
 maintained for the damage accruing during the limited period 
 l)revious to the institution of the action. (4) 
 
 (1) Kerv?'. A. iS: N. \V. Ry. Co., Sup. Ct. 1895 ; and see Dailey Main 
 Colliery Co. 7'. Mitchell, 11 App. Cas. 127 ; Knappr'. G. W. R. Co.,6i;.C. 
 C. r. 187 ; and Grenier v. City of Montreal, 25 L. C. J. 138 (coHlra) ; 
 Renaudf. City of Quebec, 8 Q.L.R. 102 {conira). 
 
 (2) 37 U.C. Q. li. 372. 
 
 (3) 9 O. R. 616. 
 
 (4) Cameron ''. Ont., Simcoe cr' Huron Ry. Co., l4U.C.Q.li. 612 j 
 Patterson v. G. W. R.(:o.,S U. C. C. P. 89 ; V.an Home v. G. T. R. Co., 
 18 U. C.Q.B. 356 ; McGillivray ?■. G.W. R. Co., 25 U.C. Q. 1!. 69; and 
 in Quebec, see Corp. of Tiugwick ?'. G. T. R. Co., 3 Q. L, R. iii. 
 
 
 :< 
 
 
 • "1 
 
1' 
 
 ' » 
 
 Opening of 
 the railway 
 for traffic. 
 
 CHAPTER IX. 
 
 OPERATION OF THE RAILWAY. 
 
 10. Collection of tolls. 
 
 11. /\isfc'ni,'drs — Payment of fare, 
 
 12. Ejectment for non-payment. 
 
 13. Tickets issued on coniitioiis. 
 
 14. Coupon tickets. 
 
 15. Jurisdiction and cause of action. 
 
 16. Measure of daumges for efct- 
 ment. 
 
 17. Enforcing payment of tolls for 
 carriage (f goods. 
 
 18. Obligation to carry. 
 
 1. Openi.ig of the raihvay fir 
 
 traffic. 
 
 2. A'ailiUay out of repair. 
 
 3. I.iai'itity as carriers before 
 
 opening. 
 
 4. Tolls. 
 
 5. I 'ndu: discrimination. 
 
 6. Traffic arrangements. 
 
 7. 1-acilities to Express Companies. 
 
 S. 7 oils — Affroral by Coverncr in 
 
 Council. 
 9. fractions of distance and loeiglit. 
 
 1. Before the railway can he opened for traffic^ or for the 
 public conveyance of passengers and goods, certain formalities 
 are required to be observed under the Act. One month's notice 
 in writing of the intention to open the railway for public traffic 
 must be given to the Minister, and not until ten days after 
 notice in writing is given of the time when the railway, or a 
 portion of the raihvay, will be, in the opinion of the company, 
 sufficiently completed for the safe conveyance of passengers 
 and ready for inspection ; (i) and the company is liable to a 
 penalty of $200 for every day within which the railway or any 
 part of it remains open without such notice, and until the notices 
 have been given and the time expired. (2) 
 
 On the receipt of the notice, the Minister of Railways is 
 bound to direct one or more engineers to examine the railway 
 and all its branches, culverts, tunnels and road crossings and 
 its works generally, and also all its rolling stock and engines, 
 and the Minister lias power to stop or postpone the opening of 
 the railway, according to the report of the inspecting engineer; — 
 
 I) Sec. 200. 
 
 (2) Sec. 201. 
 
Opkration' of thk Railway. 
 
 271 
 
 that is to say, if, in his opinion, the opening of the railway would 
 be attended with danger to the public, either by reason of the 
 works being incomplete or the rolling stock and other establish- 
 ment of the railway being insufficient, — this, however, only with 
 the sanction of the Governor General in Council ; and the 
 postponement can only be for one month at a time, but may be 
 postjjoned from time to time, according to the report of the 
 engineer after further inspection. It is only after it is shown to 
 the Minister that the opening of the road can take place without 
 danger to the public that the railway can be opened for public 
 traffic, (i) There is also a penalty of $200 imposed on the 
 railway company, in the case of tiieir opening their railway for 
 traffic contrary to the order of the Minister ; (2) but this order 
 is not binding on the company, unless a copy of the report of 
 the inspecting engineer is delivered to them with the order. (3) 
 
 3. If any part of the railway is out of repair, such as any bridj:^ Railway out 
 embankment, culvert or tunnel, or if any of the roiling stock i->" '^^''^' " 
 in such stale as to be dangerous to the public, the Minister, on 
 receipt of information to that effect, may api)oinl one or more 
 engineers to examine the railway, or the part out of repair, or 
 any of the rolling stock, etc., and upon his report, may condemn 
 the railway, or the part complained of, or any of the rollinc,' stock, 
 and, with tl.e approval of the Governor in Council, may order 
 any change or alteialion in any i)art of the railway or the 
 substitution of a bridge or viaduct or tunnel, as the cas^ may l)e, 
 or any material for tiie roadbed; and the company mus:., after 
 notice to that effect, make good any defects in their roadbed or 
 in their rolling stock which has been so condemned, as required 
 by the minister, (4) and these provisions with regard to the road 
 being out of repair apply also to the slate of repnir in which any 
 level highway crossing may he. (5) The minister has also 
 power, as has the inspecting engineer, to regulate the speed of 
 tlie trains, and the number of ttains run on the railway, or any 
 part of the railway, until such repairs have been made as lie 
 thinks prudent ; and in default of complying with any order of 
 the minister or inspecting engineer in that behalf, the company 
 
 (I) Sec. 202. 
 (3) Sec. 204. 
 (5) Sees. 206, 207, 20S. 
 
 (2) Sec. 203 
 (4) Sec. 205. 
 

 ill 
 
 I'. 
 
 ?i'^ 
 
 
 ( 
 
 I 
 
 * 
 t 
 
 
 1 
 
 1 
 
 1 
 
 1 
 
 'l 
 
 
 Liability as 
 carriers 
 before 
 opening, 
 
 272 
 
 The Railway Law of Canada. 
 
 will incur for every act of non-compliance the penalty of $2000. 
 (i) And, in fact, the running of trains may be entirely pro- 
 hibited over either the whole railway or any part of it, if the 
 insijccling engineer tliinks it would be dangerous to continue 
 llie running of trains, until sucli alterations or repairs are made, 
 either in the road bed or the rolling stock ; and he may compel 
 compli".nce on the part of the company by serving them with a 
 notice in writing ; and in case of the company disregarding 
 such notice, they are liable to a similar penalty of $2000. (2) 
 The Governor in Council, however, has always power to modify 
 or disallow the order of the inspecting engineer. (3) These 
 are the terms and .^wditions upon which a railway may be 
 opened for traffic, and upon which its operation may be carried 
 on, and the safely of the public in using the railway is protected 
 by these provisions of the Act, so that no railway shall be open 
 for traffic, nor, after being opened, sliall be continued for traffic, 
 without careful inspection by a Government engineer, and with- 
 out the approval of the Governor in Council. 
 
 J5. And it may be well to point out here that until the raihvity 
 is so open for public traffic, the company are not subject to tlv 
 liabilities of common carriers, unless they have invited the i)ublic 
 to travel on the' road, or have held out their road as open for 
 public traffic for the conveyance of either passengers or goods. 
 It often happens that in the course of the construction of the 
 railway, and before it is open for public triffic, certain ])ersons 
 are conveyed over the railway by the company on special terms. 
 Such persons, however, cannot hold the railway company liable 
 as common carriers, unless it is shown that the railway company 
 have undertaken to carry the public generally or their goods. It 
 was so held by Mr. Justice Davidson in charging the jury in the 
 case of Macrae v. The C. P. Ry. Co., (4) where the railway 
 was not yet open for public traffic, but the company was in the 
 habit of carrying certain classes of persons on certain special 
 terms. The railway there was under construction, and trains 
 were run not on any scheduled time, but for the convenience of 
 the contractois and of the comjjany itself, and by special per- 
 
 ( I) Sec. 209. 
 (3) Sec. 211. 
 
 (2) Sec. 210. 
 
 (4) M. L. R.,4Q. B. 191. 
 
Operation ok the Railway. 
 
 273 
 
 mission of the superintendent of constiuclion individuals were 
 allowed to pass up and down the railway, and even to have their 
 goods carried on its trains. The plaintiff there had no such 
 special ])ermission to travel on the railway, and having been 
 allowed by ihe conductor of a construction train to travel a cer- 
 tain distance, ar.d being discovered on the train by the superin 
 tendcnt, was put off with his baggage upon the order of the 
 supcriiii>.iident, and the learned Judge ciiarged the jury that in 
 that case the railway company could not be locked upon as com- 
 mon carriers, and had the right to make such regulations as they 
 chose with regard to the persons and goods that they would 
 carry, and if they found that the railway Avas not open for public 
 traffic, the plaintiff had no right as one of the public to travel 
 upon the companj's trains. 
 
 4. Supposing the railway to be open for public traffic, the com- lolls, 
 pany carry passengers and goods for a certain remuneration, 
 which is called by the Act a toll. These tolls, in the absence ol' 
 
 any special provis-ion in the charter of the company, are fixcii 
 either by the by laws of the company or by the director*, if au- 
 thorized by the by-laws to do so. (i) 
 
 5. These tolls may be either for the whole extent of the lail Lndue discii- 
 way, or for any part of it; but it is provided by the .\ct thai '"i"''^t'i"- 
 they shall always under the same circumstances be charged equal- 
 ly to all persons, and at the same late, wluther per ton, i)er mile 
 
 or otherwise, in respect of all passengeis and goods and railway 
 carriages of the same description, and conveyed or propelled by 
 a like railway carriage or engine pass-ing over the same portion 
 of the line of railway ; and also that no reduction or advance in 
 the tolls shall be made, either directly or indirectly, in favor of 
 or against any particular company or person travelling upon or 
 using the railway. (2) The exact language of the Act is here 
 
 (1) Sec. 223. 
 
 Al -common law, .i canier was only bound to carry in accordance wiih Iiis 
 profession, and at reasoncible ratcF. He was not bound lo charge all his 
 customers the some rate, as long as the late charged was reasonable 1 he 
 fact that in some cases a lower rate was charged was evidence that the higher 
 rate was unieasonable, but it was not more than evidence. Gt. West. Ry. 
 Co. 7: Sutton, L. R., 4 H. L. 226, 237 ; Scott v. Midland Ry. Co, of Canada, 
 
 33U.C.Q. 11.580,595. 
 
 (2) Sec. 224. 
 
 18 
 
 •n 
 11, 
 
 ■miii 
 
274 
 
 The Railway Law of Canada. 
 
 J 
 
 ■J ' 
 
 given, for this question of discrimination in tolls is a very difficult 
 one. 'i he evident object of the Act is to prevent the railway 
 company from favoring any particular person or company in the 
 rate of freight that maybe charged for the carriage of their 
 goods. It must be observed that to constitute a case ol undue 
 discrimination, the rate charged must be always under the same 
 circumstances; and where the circumstances differ, there is no 
 doubt that the railway company would have the right to charge 
 a different rate, either for the carriage of goods or of persons. 
 For instance, it is well known that railway companies have the 
 right to charge different rates of fare in the case of an ordinary 
 traveller making a single trip to one point, and in the case of a 
 traveller making a return journey to the same point, and back 
 again ; and carrying the principle further, it is the invariable prac- 
 tice to allow a reduction in rate, or commutation, as it is called, 
 in the case of travellers continuously using the same portion of 
 the railway during certain seasons or throughout the whole year. 
 The circumstances there differing, the company have the right to 
 make a reduction in favor of persons who use that portion of the 
 railway more frequently than others, in consideration of their 
 paying in advance for a number of trips. Again, in the case of 
 certain classes of travellers using the railway for the purpose? of 
 their trade or business, special rates are allowed them, 
 under special conditions, limiting the liability of the railway 
 company. These principles are recognized to some extent by 
 hec. 225 of the Act, which says that the tolls fixed for large 
 quantities or long distances may be proportionately less than the 
 tolls fixed for small quantities and for short distance?, if such 
 tolls are under the same circumstances charged equally to all 
 persons, that is to say, that the circumstances always being equal, 
 no discrimination shall be made between the persons using the 
 railway. There is a special provision of the same section, how- 
 ever, governing the quantity, namely, that in respect of quantity, 
 no special toll or rate shall be fixed for any quantity less than 
 one carload, or at least ten tons. 
 
 It is provided by sec. 232 that no discrimination between 
 localities, which it is necessary to make in order to secure traffic 
 on account of competition by rail or water, shall be deemed to 
 be unjust or partial. It would appear, therefore, that the Act 
 
Operation of the Railway. 
 
 275 
 
 provides that if there is a competition, either by rail or by water 
 between two or more points on the railway, which does not exist 
 with regard to other points, discrimination in tolls will be al- 
 lowed, on the ground that the circumstances and conditions were 
 not ahke, with regard to other localities in which such compe- 
 tition did not exist. The company is specially prohibited from 
 giving any secret special rate to any person, and in order to pro- 
 vide against this mode of discrimination, they are prohibited 
 from giving any rebate, drav/back or concession, and the com- 
 panies are bound, on the demand of any other party, to make 
 known any such special rate, rebate or concession given to 
 anyone, (i) 
 
 As an illustration as to what would or would not constitute an 
 undue discrimination by a railway company in favor of one in- 
 dividual as against another, the case of the Denaby Colliery Co. 
 V. The Manchester^ etc., Ry, Co. (2) should be carefully ex- 
 amined. This is a most instructive case, and deals with the 
 whole question of the interpretation to be placed upon the 
 clauses of the English acts which are analogous to our own. The 
 decision of the House of Lords in this case would be binding 
 upon the Courts in this country, in interpreting the similar clauses 
 of our own act, (3) and it is therefore essential, in order to have a 
 clear comprehension ofthe meaning and effect of these clauses, to 
 carefully study this case. The points involved are too lengthy to 
 be dealt with here in detail, but a short summ.-.ry of the holding 
 of the Court may be given. It was held in the first place that 
 the fact that the railway company charged a less proportionate 
 rate for coal carried for one colliery over a part of its line than that 
 wiiich it charged to another colliery for the carriage of coal over 
 a shorter part of its line, did not constitute an undue advantage 
 or preference to the first colliery company within the meaning of 
 the Act, inasmuch as the goods did not pass " only over the 
 same portion of the line of the railway." The language of the 
 Act is that tolls shall always, under the same circumstances, be 
 charged equally to all persons and at the same rate in respect of 
 goods ofthe same description passing only over the same portion 
 
 (i) Sec. 233. (2) II App. Cas. 97. 
 
 (3) City Bank v. Barrow, 5 App. Cas. 664 ; Trimble v. Hill, 5 App. Cas. 
 342. 
 
 ...IV 
 
 >., \ 
 Ml, 
 
 J'; 
 
 I :i 
 
 • 1 1 
 
 
 T i! 
 
276 
 
 The Railway Law ok Canada. 
 
 of the line of railway. The House of Lords has authoritatively 
 and finally decided in this case, that the conditions to constitute 
 an undue advantage or discrimination must be strictly within the 
 language of the Act ; and that though for the same class of goods 
 passing over the same portion of the railway, a higher rate of 
 freight was charged in the case of goods carried only over that 
 portion of the road than in the case of goods carried over a longer 
 stretch of the road including that portion, this would not constitute 
 a case of undue discrimination, inasmuch as the goods did not pass 
 " only over the same portion of the railway.'' In the same case, 
 however, their Lordships pointed out what would constitute an 
 undue adviintage ofdiscrimination, and incidentally explained the 
 meaning to be attached to the words " under the same circum- 
 stances." They held that where the lailway company charged a 
 less rate for coal carried only over the same portion of the railway, 
 from the same point of departure to the same place of destination, 
 in a case where it was to be shipped by sea to certain ports, than 
 it charged in a case where it was not to be shipped to these ports, 
 this was an undue discrimination; and they laid down the prin- 
 ciple that wheie the same goods are carried only over the same 
 portion of the line of the railway, the railway company are 
 bound to charge the same rate df freight to all persons, wiihout 
 regard to the ultimate dehtinaiicn of the goods. In other words, 
 in order to bring the Company within the meaning of the Act, the 
 goods must be the same, and the portion of railway between the 
 points of departure and destination must be the same; and the 
 circumstance that certain of the goods are to be transhipped 
 thence to other ports would not constitute an exception witliin 
 the meaning of the Act. 
 
 Another important case, decided in England by the House 
 of Lords, was that of Evershed v. The North Western Ry. 
 Co. (i) This case arose under the English Act, 17-18 Vic, which 
 contained provisions similar to our Railway Act, by which 
 railway companies were foi bidden to give any undue preference or 
 advantage to any particular person or company in the matter of 
 carrying or forwarding freight. The plaintiff had a brewery at a 
 place where there were three other breweries. These latter were 
 
 (I) L. R., 2 Q. 15. D. 254, 3 Q. B. D. 135, 3 App. Cas. 1059. 
 
Operation ok the Railway. 
 
 277 
 
 connected with the railway, whereas plaintiffs brewery was not. 
 In order to get away some of the business of the three breweries 
 fron llie Midland Railway, the Nonli Western carried the goods 
 of lliese three breweries to the freight depot, free of charge, and 
 still made a profit on the whole transaction ; but they charged tlie 
 plaintiff a rate of freight for the same service, that is to say, taking 
 liis goods from the brewery to the depot. It was held that this 
 was an undue preference within the meaning of the Act, and that 
 plaintiff was entitled to recover an amount equal to the cost of 
 carting his goods to the depot. 
 
 In determining wliether mileage rates charged to one trader on 
 a lower scale than another do or do not amount to an undue 
 preference, it has been held in England that the Court may take 
 into consideration the fact that one of the traders has access to 
 a competing line of railway, (i) 
 
 An agreement under which a railway company undertoolv 
 not to allow any coal or coke to be received or deposited at or 
 sent from one of their stations, either by railway or otherwise, 
 which had not been raised from or mxnufacturedat (he collieries 
 or coke ovens of a certain estate, was held to amount to an 
 undue preference. (2) 
 
 It has been held by the Supreme Court of the United States, 
 that it is no defence to a charge of discrimination that the dis- 
 crimination was made in consideration of the person unduly 
 favored releasing the company from claifis for damages. (3) 
 
 ti. Railway companies are not only bound to carry goods for Traffic arran- 
 the public generally, but they are also bound to give all reasonable Bements. 
 facilities to any other railway company for the forwarding and 
 delivery of traffic, and for the return of cars and trucks, etc. 
 upon which goods or passengers may be carried, and are pro- 
 hibited from giving any undue preference or advantage to any 
 particular company or with regard to any particular description 
 of traffic, and —e confra from subjecting any particular company 
 or person or description of traffic to any undue disadvantage ; 
 
 (1) Phippst'. Lon & N. W. Ry. Co. [1892], 2 Q. B. 229; 61 L.J. Q.B. 
 379 ; 8 Ry. & Can. Traflf. Cases 83. 
 
 (2) Rishton Local Board v. Lin. & York Ry. Co., 8 Ry. & Can. Traflf. 
 Cases 74. 
 
 (3) Union Pacific Ry. Co. v, Goodridge, 13 U. S. 970. 
 
 .,1'}. 
 
 m:i, 
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 I 
 
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 Ill 
 
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 378 
 
 The Railway Law of Canada. 
 
 I'- I 
 
 « 
 
 i 
 
 I 
 
 and special provision is made in the case where a company is 
 working a railway which forms part of a continuous hne, or which 
 intersects any other railway, or whicii iias any terniinu?, station 
 or wharf near to a like place of accommodation of another rail- 
 way. In such case, the company is bound to afford all reason- 
 able facilities for forwarding by its railway all traffic coming from 
 the other railway without unreasonable delay, and without giving 
 any preference or advantage to any particular person, com- 
 pany or description of goods. And the company is bound 
 in such case to offer no obstruction to the public desirous of 
 using their railway as a continuous line of communication, so 
 that all reasonable accommodation by means of the railways of 
 the several companies may be afforded to the public, (i) Agree- 
 ments may be made between railway companies, either in Canada 
 or elsewhere, for the regulation and interchange of traffic between 
 them, and even for a division or apportionment of tolls, com- 
 monly called a pooling of receipts, and in fact generally with 
 regard to ihe management and working of connjciing railways 
 or of any parts of them ; but this must not be for a term exceed- 
 ing twenty-one years. Such agreements or arrangements, how- 
 ever, are subject to the consent of two-thirds of the stockholders of 
 the contracting companies, and to the approval of the Governor-in- 
 Council, (2) which approval can only be granted after two months 
 previous notice of the application therefor has been published in 
 the Canadii Gazette, stating the time and place of the applica- 
 tion, so that all persons interested may be heard for or against 
 the arrangements. (3) But no such agreement, under sec. 240, 
 can be made which contains any condition contrary to the pro- 
 visions of that section with regard to the facilities to be afforded 
 by one railway to another and to the public generally, which 
 would violate those provisions with regard to undue preferences, 
 etc. 
 
 It has been held that it was not sufficient that the directors of 
 two railway companies communicated an agree men t made between 
 them as to traffic arrangements to'their shareholders by writing, 
 and announced it to them at a regular meeting of shareholders, 
 who then had full notice thereof, and did not dissent therefrom, 
 
 (i) Sec. z\o. 
 
 (2) Sec. 238. 
 
 (3) Sec. 239. 
 
 II 
 
T 
 
 Operation ok the Railway. 
 
 in 
 
 ^. 
 
 bat ratified the same ; and tlioiigli djfeiidant's sharelioldors, at a 
 regular meeting, approved of the sums found as balances struck 
 in favor of tlie plaintiffs on the monthly settlements provided for 
 in such agreement, (i) 
 
 It appears that two companies having the same termini may, 
 in order to avoid competition, come to an agreement witli refer- 
 ence to the traffic along existing routes on iheir liue.^, with a 
 view to distribute such trafliic and the revenue derived from it 
 between the two companies. (2) 
 
 A traffic agreement to the following effect has been maintained 
 and held valid and ifi/ni vires of a railway company ; — viz. an 
 agreement that there should be certain joint rates chargeable to 
 passengers and freiiilit by a steamshij) company and a railway 
 company, to be divided in certain proportions, and if it should be 
 found that the proportion payable to the steamship company 
 did not at the end of the season amount to the sum therein stip- 
 ulated, then that the deficiency should be made good by a rebate 
 from the share of the railway company ; and, on the other hand, 
 if the steamship company received more than the sums men- 
 tioned in the agreement, the railway company were entitled to 
 a share of the surplus. (3) 
 
 It was also held that sec. 240 does not prevent a railw.iy 
 company from guaranteeing all its traffic to a certain steamljoat 
 company, but that it only applies to railway companies. (4) 
 
 7. In addition to the provisions of the Act prohibiting undue F.icilities to 
 preference being given to individual shippers or to other railwas Express Com- 
 companies, it is provided by sec. 242 that wiiere any company 
 gives facilities to an express company, or to any persons carrying 
 on that business, it is bound to grant equal fiicilities on the same 
 
 panies. 
 
 (1) Great Western Ry. Co. v. G.T.R., 25 U. C Q. H. 37 ; and sve I.ii.dley 
 Comp. 181. 
 
 (2) Hare v. L. & N. W. Ry. Co., 2 J. & II. 80; Great Western Ry. 
 Co. V. G. T. R., 25 U.C. Q. U. 37. 
 
 (3) Owen Sound Rv. Co.r. C. 1'. R., 17 O. R. 691. 
 
 (4) Owen Sound .S. S. Co. v. C. V. R , 17 O. R. 697, Rose, J., Confirmed 
 in Appeal, I7 0nt. App. 482; and for recent English cases, see I).irIaston 
 Local Board v. Lon. & N. W. Ry. Co., q R. 712 ; [1894] 2 Q. H. 694, 8 
 Ky. & Can. Traff. Cases 216; Solway Junction Ry. Co. v. Caledonian Ry. 
 Co., 8 Ry. & Can. Traff. Ca>es 177; Dublin, Wicklow, &c., Ry. Co. r-. 
 Midland G. W. Ry Co., 8 Ry. & Can. Traff. Cases 39 ; City of Dublin Steam 
 Packet Co. z: Midland G. W. Ry. Co , 8 Ry. & Can. Traff. Cases I. 
 
 nil). 
 
 111 * 
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 1:1 
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 it : 
 
 
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TT 
 
 2 So 
 
 TlIK R\II.W\Y l.AW Ol' (!\S\I)\. 
 
 kriin uiul conditioin to ;iiiy olh.T cx|)rv.'ss compaiiy wliicli a>1;s 
 for llu'in. It will W: ohicTvod ilii: this is only in tlic ciso wicre 
 llic company has already qrant^d ficilitici on its line to sonu 
 ciJinpany or person carrying on tlu express business, and there 
 i-. noiliin,:; in ill ; Act which wo ild provjiu a railway comp my 
 from '-.urying on the express biisin,'«s itself. In tlie United 
 Slates, liiiwever, it li.is been held that a railway comp my cannot, 
 either dircc:lly cr indirectly, destroy or even tram nel express 
 enterprises, by either excluding express companies from its lines, 
 or hindering them with unji;st regulations or unf.iir discri nina- 
 lidus, nor can it assume to itself ihe exclusive rigiu of carry- 
 ing on the express business over its ow i lin.-.s. (i) 
 
 InCanida, it would ajipear thai railway c )nipanies may refuse 
 to cn'.er into any special agreement in the first instance wilh 
 express immpanies, and if they thought proper could do tiie great 
 bulk, if not all the express business themselves, so far as the 
 receipt and delivery of goods and parcels, large or small, miy be 
 concerned. (2) 
 
 In the absence of collusion, the Couri will not inquire into the 
 reasonableness of the rales charged by a railway co.iipany to an 
 express company. (3) 'I'he nature of the express business is 
 such that it requires special accomm )dation for goods not to be 
 treated as ordiniry freight, but to be forwarded on fast trains 
 with car accommodation to a named extent, and the ordinary 
 statutory provisions as to equality c.mn it be applied. (4) It is 
 absolutely necessary that a special bargiin and contract has to 
 be made, and no particular bargain can be forced by law on a 
 railway company. 
 
 In the absence of legislation, it must be left to the company 
 to decide whether they can [irovide any, and, if any, whit accom- 
 modation for express business as distinct from the ordinary 
 transmission of freijjht or passengers. When the railway com- 
 pany agree with the first com;r, th-'y are n H bound to make 
 their bargain in the aniicipxtion tiiat other companies will also 
 apply. "It by no means follows," said Chief Justice Wait, of 
 
 (1) Southern Express Co. t. Liiiisville & Nnsliville Ry. Co., 4 L. N. 16. 
 
 (2) Vickers 7\ C- P. R., 13 Out. App. 21 i. Ilagarty, C. f. O. 
 
 (3) Vickers r. C. P. R, [3 O.it. .\pp. 210, H.igirty, C. f , O. 
 
 (4) Vickers r'. C. P. R., 13 Ont. App. 219, Hagarty, C. T. O. 
 
OrLUAiroN OK iiiK Kaii.wav. 
 
 38 1 
 
 the I'niled Stales S iprfine Couri, " lliat because a railway 
 company can serve one express company in one way, it ran as 
 well serve another com|)any in tlie same way and still pciform its 
 
 obligations to the public in a saiis(;\ctory manner So long as 
 
 tin; |)ublic are served to their reasonable satisfa';tion, it is a 
 niatter of no importance who serves them." (i) 
 
 In this country, however, it has been held th.it a railway 
 company having granted to one incorporated express company 
 the privilege of employing their station agents to act as agents of 
 that express comi>any, such agents having, as employees of the 
 railway company, the light to use the company's trucks and 
 baggage room as places for storing g.jods, and refused the same 
 privilege to another incorporated e.\press company, brought 
 themselves within the nrovisiois of tiie Act. (2) 
 
 All these questions are, however, within the jurisdiction of the 
 Railway Committee; (3) and it has been held exclusively so. 
 (4) 
 
 8. By sec. 226, the (iovernor in Council is given power t(j Tolls-A])- 
 
 make sonie uniform classification of freight on the report of the JY"^^' by the 
 
 ^ ' Ciovernor m 
 
 Minister; and the company, m fixing or regulating its tolls, must Council, 
 conform to such classification, as he may from time to time pre- 
 scribe, except in case of through traffic to or from the United 
 States. All tolls are subject to the ai)pioval of the Governor in 
 Council. The by-law fixing them must be approved by him, and 
 they cannot b^ levied until after his approval, and two weeks 
 publication in the Canada Gazette of the by-law and of the Order 
 in Council ai)proving of the tolls; and no company can collect 
 any mon^y for services as common carriers except subject to the 
 provisions of th,* Act. (5) Under this section it has been held 
 that, where a company sought to escape liability for damage to 
 goods through their negligence, on the ground that the shipper 
 had agreed to relieve them of liability in consideration of his 
 being charged the lower of two alternative freight rates, there was 
 
 (1) St. Louis, etc., R. U. Co. r. Souihein Express Co., 1 17 U. S. I. 
 
 (2) Vickeis Express Co. v, C. P. R., 13 Ont. App. 210. 
 
 (3) Sec. II Ry. Act. 
 
 (4) Ontario Express and Transportation Co. v. G. T. R. Co. M. L. R. 7, 
 S. C. 308 (S. C. 1891). 
 
 (5) Sec. 227. 
 
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 Collection of 
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 Passengers — 
 Payment of 
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 no freight "lawfully payable" under sec. 246, inasmuch as 
 no by-law fixing the rates had been approved by the Governor in 
 Council, and, therefore, there was no valid alternative rate, and 
 the release was 'n /perative. (i) 
 
 The Governor in Council has power also to revise the by-laws 
 of the company, fixing the tolls, and, in case of revision by Order 
 in Council, the tolls substituted by such order are the only ones 
 which can be collected, after two publications in the Cafhufa 
 Gazette. (2) 
 
 0. With regard to the charging for tolls, it is provided by sec. 
 229 that any fraction in a distance under a mile is considered as 
 a whole mile, and, as to any fractioii of a ton in the weight of 
 goods, a proportion of the toll is chargeable according to the 
 number of quarters of a ton cont:-ined in the fraction, and the 
 fraction of a quarter of a ton is considered as a whole quarter. 
 
 (3) 
 
 10, The company are bound to post up in their offices in 
 every place where tolls are to be collected, a printed list of the 
 rates chargeable, whether for passengers or goods, (j) 
 
 These tolls are payable to sucli persons, and at such places near 
 to the lailway, and in such manner and under such regulations 
 as the by-laws may direct. (5) As to passengers, the tolls are 
 ordinarily collected by purchase of tickets at the station of the 
 company from which the passenger takes his departure. It is 
 frequently the practice that in the event of the passenger not 
 buying a ticket before entering the train, he is liab'e to a further 
 charge of ten cents. The right of the company to charge this 
 may be doubted, and the practice in the United States is, per- 
 haps, more legal and proper, namely, that a passenger buying 
 his ticket on the train shall pay an extra ten cents, or some pro- 
 portionate sum, which will be refunded to him on his producing 
 the ticket or receipt of the conductor at his destination. 
 
 11, It is usual that the passenger should purchase his ticket at 
 the station, and the only means which the conductor of a train has 
 
 (1) Cobban :'. C. P. Ry. Co., 26 O. R. 732. 
 
 (2) Sec. 228. 
 
 (3) See as to construction of similar cl.iuse of English Act, Pryce 
 Monmouthshire Canal & Ry. Co., 4 App. Cas. 197. 
 
 (4) Sec. 230. 
 
 (5) Sec. 231. 
 
Operation of the Railway. 
 
 283 
 
 for ascertaining whether a passenger has paid his fare or not is 
 by the inspection of his ticket ; but if a passenger has not 
 purchased a ticket, he is bound to pay his fare to the conductor 
 of the train, and if he refuses to pay his fare, he may be expelled 
 from the train by the c iiductor and the train servants, with liis 
 baggage, either at any usual stopping place or station, or near 
 any dwelling house, at the option of the conductor, who, however, 
 must first stop the train, and who must not use any unnecessary 
 force, (i) 
 
 13. There has been much litigation in connection wiiii Ljectment for 
 this question of the right to eject a passenger for non-paynieiu "^"'l^''^^'"^"'* 
 of fare, but it is unnecessary to refer here to more than some of 
 thf leading decisions of the courts on this point. Our Act has 
 practically fixed the cases in which a passenger may be expelled. 
 First, it is upon refusal to pay his fare. If the passenger has not 
 bought a ticket, or has lost his ticket, it seems to be clear under 
 the Act that he must pay his fare, or take the alternative nf 
 ejectment from the train, (2) though the right to eject has been 
 denied in some cases where the passenger had bought a ticket 
 and lost it. (3) If he states that he has purchased a ticket, and 
 has mislaid it, he must be given a reasonable time within which 
 to produce it ; (4) but in all such cases, in the author's opinion, 
 so long as the conductor acts within reason, the company could 
 not be held liable in damages if the passenger was ejected for 
 non-payment of his fare. The only means a conductor has of 
 knowing whether the passenger has paid his fare at the station is 
 by the production of the ticket, and so long as a reasonable time 
 is given to the passenger to produce it, the company should not 
 be held liable for damiges, if the passenger is ejected from the 
 train, even though he had actually paid his fare in the first 
 instance at the station and obtained a ticket, for his ejection 
 
 Ry. Co., 14 U. C. q. B. 377 ; Fulton v. G. T. Ry. 
 urtisr'. G. I'. R. Co., 12 C. 1'. 89 ; Perraiilt r. C. P. 
 
 (1) Sec. 248. 
 
 (2) Duke V. G. 'W. 
 Co., 17 Q. B. 428 ; Cur 
 R. Co., 20 R. L. 321. 
 
 (3) Diincey v. G. T. Ry. Co., 19 Ont. A. R. 664 ; Beaver v. G. T. Ry. 
 Co., 22 O. R 667. 
 
 (4) Curtis V. G. T. Ry. Co, I2 U. C. C. P. 89 ; Fuhon i-. G. T. Ry. Co., 
 17 Q. B. 428 ; Tiiomas v. Gelderl, 20 N. B. 95 ; Perrauli e. C. P. Ry. Co., 
 20 K. L. 321. 
 
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 The Railway Law of Canada. 
 
 
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 would be simply the result of his own carelessness in having lost 
 or mislaid his ticket. It is the duty of the conductor to see that 
 no person travels ui)on the train without having paid his fare, 
 and so Ion" as he acts without harshness and with reasonable 
 discretion, there is no reason why the company should be held 
 liable for the ejection of a passenger who is unable to produce 
 his ticket, and refuses to pay the fare ; for it must be remembered 
 that very often dishonest persons endeavor to ride free from one 
 station to another of the railway, on the pretence of having lost 
 their tickets. 
 
 But the conductor must always act without harshness and 
 within reason. He must give the passenger ample time to find 
 his ticket, if he claims that he has mislaid it ; and he must not 
 eject him with any unnecessary violence, and he must not 
 put him off the train except at a station or stopping place, or 
 near some dwelling house. These principles were recently 
 enforced in a case where a passenger who had purchased his 
 ticket, but was unable to find it, was ejected at a point distant 
 from eitlier a station or dwelling house, (i) In all cases of 
 this kind, the courts have been very jealous of the rights of the 
 public as against the railway company; but, at the same time, the 
 passenger must always be in good faith and within his own rights. 
 
 The cases in which it has been held that a passenger could not 
 be lawfully ejected from the train for non-payment of fare, where 
 lie had purchased a ticket but could not produce it, seem to have 
 been decided upon the ground that there was no regulation or 
 by-law of the company known to the passenger requiring him 
 to produce his ticket on pain of expulsion, and that therefore it 
 was no part of the contract of carriage that he should produce 
 his ticket as a condition of being carried to his destination. For 
 instance, in a recent case in Ontario, where a passenger had lost 
 his ticket and there was no condition 'in his contract with the 
 company, and no by-law or regulation of the company under 
 sec. 214 requiring its production, it was held that he could not 
 be treated as a passenger who refuses to pay his fare, and could 
 
 (0 PerrauU r. C. P. R. Co., 20 R. L. 321. The Courtthere held that the 
 conductor was bound to lake into consideration the age and feebleness of the 
 passenger, and give him a proportionately Ion|;er time to tind his ticket. 
 
 

 Operation ok the Railway. 
 
 2S5 
 
 not lawfully be ejected from the train. ( i ) This case was decided 
 mainly upiui the English case of Butler v. Manchester, She field 
 & Lancas/i.re Ry. (2) There the ticket issued to the plaintiff 
 incorporated by reference a condition published in the defendants' 
 lime-tables, to the effect that every passenger should show and 
 deliver up his ticket when required, and that any passenger 
 travelling without a ticket, or failing or refusing to show or deliver 
 up his ticket, should be required to pay fare from the station 
 from which the train oiiginally started. Tiie plaintiff had bought 
 his ticket, but lost it, and was therefore unable to produce it 
 when required to do so by the guard. On being required to pay 
 fare from the station from which the train originally started, he 
 refused, and he was thereupon forcibly ejected from the carriage. 
 He sued the company for assault, and it was held that the contract 
 between him and the company did not by implication authorize 
 them to remove him from the carriage, on his failing to produce 
 a ticket and refusing to pay tare. This decision, it will be observed, 
 was based upon a special contract, which provided that the 
 passenger failing to produce his ticket should pay fare from liie 
 station whence tlie train had started, but the passenger did not 
 contract that in event of his failure to do so, the company would 
 have the right to eject him. It is difficult to conceive how this 
 decision can be considered as affecting the right of railway 
 companies to eject passengers under the provisions of the Railway 
 Act in the absence of contract. (3) 
 
 The principle enunciated simply amounts to this, that a rail- 
 way company has no rigiit to eject a passenger for non-payment 
 of an extra fare imposed by a by-law in default of the production 
 of a ticket, unless the by-law, which constitutes tlie contract 
 between the passenger and the company, provides for sucii 
 ejection. The decision does not go so far as to say that tiie 
 company must carry the passenger to his destination without 
 payment of any fare. 'Ihat would be contrary to the common 
 law as to carriers, and in direct contravention of sec. 246 of our 
 Railway Act, which makes the obligation to carry dependent 
 
 (1) Beaver i: G. T. Uy. Co., 22 O. R. 667. 
 
 (2) L. R , 21 Q. B. D. 207. 
 
 (3) See McCarthy c. Dublin, etc., Ry. Co., 18 W. R. 762. In Exch. Cliani. 
 where light to eject was maintained. 
 
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 The Railway Law of (Canada. 
 
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 upon the " due payment of the fare lawfully payable therefor." 
 If there is not a due payment of the fare, the company is not 
 bound to carry the passenger ; and it must follow as a logical 
 consequence, apart from the provisions of sec. 248, that the 
 officers in charge of the train have a right to refuse to carry him, 
 and if he insists upon remaining on the train, to eject liim. The 
 passenger must either pay his fare to the officer in charge of the 
 train, or show that he has already paid it to some authorized 
 person ; and the only recognized neans of proving it is by the 
 production of a ticket. If he cannot produce a ticket, the con- 
 ductor has no possible means of knowing whether the fare has 
 been paid or not ; therefore he would be justified in insisting upon 
 payment of the fare, and, in default, of refusing to carry the passen- 
 ger further, and of ejecting him. And if the servant of the company 
 would be justified in so doing, it is difficult to understand how 
 the company could be held liable for his acts, especially as the 
 passenger would himself be negligent in losing his ticket, and 
 would have his recourse against the company to recover the 
 amount of the fare, if he had paid twice. The American author- 
 ities all support the right to eject, (i) 
 
 Ticl<cts issiiid 13. Again, the passenger must have paid his fare within the 
 meaning of the Act. If a party purchases a ticket on certain condi- 
 tions, lie must comply with those conditions. For instance, if a 
 ticket is declared to be good for a specified time only, the person 
 buying such ticket enters into a special contract with the company, 
 whicli is at an end as soon as the term has expired, and the 
 
 on conditions 
 
 (1) Chicago ^- Alton Ry. Co. v. Willaid, 31 111. App. R. 435 ; llibb.ard 
 ?•- N, Y. A:Eiie Ry.Co., 15 N. Y. 455 ; Crawford r. Cincinnati, tVc, Ry. Co., 
 20 Ohio 580 ; Shelton f. Lake Shore & Mich. Southern Ry. Co., 29 Ohio 
 214; Louisville A: Nashville Ry. Co. -■. Fleming, 18 Am. tt Lng. Ry. Cases 
 347 ; Frederick t'. Marquette, Ac, Ry. Co., 37 Mich. 342 ; Jerome r'. Smith, 
 48 Vt. 230; Haley v, Chicago A; iV. W. Ry. Co., 21 Iowa 15 ; Townsend 
 :■. N. Y. Centwl Ky. Co., 56 N. Y. 295. 
 
 The decisicn in the case of Beaver z'. G. T. Ry. Co. has now been 
 reversed by the Supreme Court (22 S. C. R. 498), where it was held (Four- 
 rier J. dissenting) that the contract between the person buying a ticket and 
 the company upon who.-e line it is intended to be used implies that such ticket 
 shall be produced and delivered up to the conductor of the train on which 
 such person travels, and if he is put off a train for refusing or being unable so 
 to produce and deliver ii up, the company is not liable to an action for such 
 ejectment. The Manchester & Sheffield Railway case was referred to and 
 clearly distinguished (per Gwynne, J., at pp. 501-2). 
 
Operation ok the Railway. 
 
 287 
 
 holder of a return ticket attempting to return upon it after the 
 expiration of the delay for which the contract was granted may 
 be lawfully ejected from the train on lefusai to pay his fare, (i) 
 
 Again, where the plaintiff had offered a return ticket, which, 
 according to the terms printed upon it, had expired, and the 
 jury had allowed him $100 damages in an action for wrongful 
 ejectment, the Court of Appeals of Quebec set aside the verdict, 
 on the ground that the railway company were justified in putting 
 the plaintiff off the train. (2) 
 
 Another case m which the same principle was maintained, 
 that the passenger must conform himself to the conditions on 
 which his ticket was sold to him, was that of Livingston v. The 
 G. T. Ry. Co., (3) where the Court of Review of Quebec held, 
 in 1876, that where a passenger bought a ticket from Montreal 
 to Toronto, marked good only for a continuous trip within two 
 days from date, and stopped off for some days at Kingston, and 
 afterwards attempted to continue his journey on the same ticket, 
 the company had a right to eject him from the train in default 
 of further payment of fare. 
 
 14. In the United Slates it has been held that where coupon Coupon 
 tickets are issued by one company, giving right of passage over *''^'^*'^- 
 several distinct lines of railway, each coupon is a distinct ticket 
 for each road ; and a passenger holding such a ticket has the 
 same rights against each company as if he had purciiased a 
 separate ticket for the portion of each roadway traversed ; and 
 that where the conductor on any one of the roads covered by 
 the coupon tickets refuses to accept a ticket issued by the other 
 company as agent for his line, and demands full fare, tlie pas- 
 senger may, if his ticket was issued with authority, pay the fare 
 over again, and recover from the company requiring payment as 
 for breach of contract ; or he may refuse to pay, and leave the 
 train, and sue and recover all resulting damages ; but if he refuses 
 to leave the train, he cannot recover damages for being forcibly 
 ejected by the conductor, where no more force is used than is 
 
 (1) Keg. V, I'haneuf, 5 L. C. J. 167 ; and see Davis v. G. W. Ry. Co., 20 
 U.C. Q. B. 27. 
 
 (2) Cunninghan v. G. T. Ry. Co., 9 L. C. J. 57, 11 L. C. J. IC7. 
 
 (3) 21 L. C.J. 13; and see Craig v.G. W. Ry. Co., 24 U. C. Q.B. 504; 
 and Biiggs v. G. T. Ry. Co., ibid. 510. 
 
1 1 
 
 288 
 
 The Railway Law ok Canada. 
 
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 Jurisdiction 
 and cause of 
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 absolutely necessary, and the expulsion is not wanton or wilful. 
 (i) It may be questioned whether the latter part of this holding 
 be good law in this country, as our Railway Act only gives 
 . ':i the conductor to eject a passenger in the case of his not 
 iKivin^' paid his fare, and it would seem to be clear that if he had 
 iHirciiased coupon tickets from a company having authority to 
 issue 'hpm, '^ ' giving him the right to travel oveiCK'rtai^tOa^, 
 he would !i ivo raid his fare, entitling him to travel over those 
 roads, on production of his ticket, and could not be legally 
 ejected from ihe train. 
 
 .So it has been held in New Brunswick that, where these 
 through tickets are issued in coupon form by mutual arrangement 
 between various companies, the production by a passenger of a 
 coupon authorizing him to pass over one of these companies' 
 h'nes affords evidence of a contract between him and that com- 
 pany for his can iage as a passenger. (2) And if this be good 
 law, the conductor would have no right to demand payment of 
 fare. 
 
 15. In Quebec it has been held that a corporation, wliuse prin- 
 cipal i)lace of business is in a foreign country, may be served with 
 process at any place in the Province of (Quebec where it has an 
 office f)r the transaction of business. So, where a foreign cor- 
 poration liad an office at Montreal for I'l*? sale of sleeping-car 
 tickets, and the plaintiff, who had bought a ticket from defend- 
 ants at New York, for a sleeping-car bertii from that city to 
 Montreal, brought an action of damages, alleging that he had been 
 unlawfully expelled from the sleeping car, it was held that the ser- 
 vice of his action at the office of the company in Montreal was a 
 sufficient service to give the court at Montreal jurisdiction. 
 Further, that although the expulsion took place beyond the 
 province line, yet as it continued until the plaintiff readied 
 Montreal (he being forced to ride in a first-class car), the cause 
 of action arose within the province. (3) Where a person 
 having a return ticket for a passage from one place to another is 
 put off the train at an intermediate point, the cause of action 
 arises at this latter place, and not where the ticket is issued. (4) 
 
 (1) Penn. Ky. Co. v. Connell, 127 111. 419. 
 
 (2) Macdonald r. Tlie Mayor of St. Joiin, 25 N. B. 318. 
 
 (3) New York Central Sleeping Car Co. r. Donovan, M. L. R.,4 O. B, 
 
 (4) Ralph 7\ Great Western Ry. Co., 14 Can. L.J. N. S. 172. 
 
Operation of the Railway. 
 
 289 
 
 l(i. While the general rule, that damages will only be allowed Measure of 
 uhen Ihey arc thedirectand natural result of the company's acls,'-''"'''^^'' °'^ 
 and which could iiave been reasonably foreseen at the time, and 
 iliat remote damages will not be allowed, (1) has been generally 
 applied 10 cases of ejectment from a train, (2) there is always 
 ditliculty in determining, upon the facts of each particular case, 
 what damages should be allowed, or refused as too remote. In 
 a very recent case (3) the Supreme Court, confirming judgments 
 of the Ontario Court of Appeal (4) and of the Divisional Court, 
 (5) held that illness resulting from exposure to cold, in conse- 
 quence of ejectment from a street car, is not too remote a cause 
 for damages ; and that where the person ejected was properly 
 clothed for protection against the severity of the weather, but was 
 in a state of perspiration from an altercation with the conductor 
 when he left the car, and therefore liable to take cold, the jury 
 were justified in finding that an attack of rheumatism and bron- 
 chitis, which ensued, was the natural and probable result of the 
 ejectment, and in awarding damages therefor. This case would 
 seem to go very far, and to be in conflict with the principles laid 
 down in Hobbs v. London <0 S. IV. Ry Co., (6) upon which case 
 one of their l^ordships, and the Chief Justice of the Court of 
 A]ipcal (Hagarty, C. J.) based their dissent. 
 
 17. In the case of non-payment of tolls, they may be recovered Enforcing 
 by an ordinary suit, in any Court of competent jurisdiction, and P'lyf"'^"^ "f 
 in the case of goods, they maybe detained until payment ofjj-jgeof 
 tolls. (7) In such case, the goods remain at the risk of the owner, goods. 
 
 (1) roihier, Olitigation<. Nos. 159, et seq, ; I Sedgwick on Measure of 
 Damages, O7 ; C. C. 1074 ; Victorian Uy. Comnrs. r. CouUas, 13 App. Cas. 
 222 ; Rock :■. iJmis, M, 1.. R., 4 S. C. 134, 356 ; Thibaudeau v. Monti. 
 Street Ry. Co., ibid. 400; Toms r'. Corporn. uf Township of Wliiiby, 35 
 U. C. Q. B. 195 ; Ferrie 7: G. \V, Ry.Co., 15 U. C. Q. H. 513. 
 
 (2) Williamson r. G. T. Ry. Co., 17 U. C. C. P. 615 ; Hobbs r, Lon. & 
 S. W. Ry. Co., L. R., 10 Q. li, rii ; GofT v. Gt. Nonhein Railway Co., 30 
 L.J. Q. H. 148. 
 
 (3) Toronto Uy. Co. f. Giinsted, 24 S. C. R. 570. 
 
 6S1 
 
 (S) 21 Oni. A. R. 578. 
 
 (6) Su/ni. 
 
 (4) 24 O. R. _ 
 
 (7) Sec. 234. In a case where plaintiff contracted with defendants to have 
 his goods carried by their line, and through the intermediary of another line 
 with which he had a contract for a low rate, to his de^tillalion, and the de- 
 fendants failed to send the goods by that other line, thereliy causing plaintiff 
 to pay a higher freight, the defendants: pleaded the illegality of the low rate 
 contiact, but it was held that the contri-ct could not be assumed to be illegal, 
 for even if it could not be enforced by plaintiff against tlie inierveni.ig com- 
 pany, this would be no defence to the defendants. (Langdon t. Robertson, 
 13 O.K. 497.) 19 
 
290 
 
 The Railway Law ok Canada. 
 
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 (i) and if the tolls are not paid within six weeks, the company 
 may sell the goods and retain the tolls, and all expenses and 
 charges out of the proceeds, but are bound to deliver the sur- 
 plus or any part of the goods which are not sold, to the owner. 
 (2) In the case of goods remaining unclaimed for a year or 
 more, the company can sell them, by giving public notice for six 
 weeks in the Official Gazette and in any local papers tliat it 
 thinks proper, and out of the proceeds they may retain any 
 freight due on the goods or charges or expenses in connection 
 therewith ; and if there is any balance remaining, they shall keep 
 the same for a period of three months, to be paid over to any 
 person entitled thereto ; (3) and if this balance is not claimed iu 
 that time, it is to be paid over to the Receiver-General, for the 
 public uses of the country until claimed by the owner. (4) 
 
 Tliis right of retention or lien upon goods for freight lias 
 always been recognized by the law in favor of carriers. From 
 the language of the Act, it is evident that this right of lien or 
 privilege upon the goods for the payment of freight exists upon 
 any part of the goods for the whole amount of freight due for the 
 carriage of the whole, — that is to say, that the company's lien is 
 not a proportionate one, equivalent to the amount of freiglit due 
 upon such part of the goods as may remain in their possession, 
 but they may hold any of the goods which remain in their posses- 
 sion for the full amount of freight due by the owner of tiie wliole 
 quantity carried. This is in accordance with the common law 
 with regard to carriers, and has been recognized in one of the 
 early cases in the province of Quebec, (5) where it was held that 
 a common carrier has a privilege upon every portio.i of the goods 
 carried for the payment of the whole freight due by the owner or 
 consignee of the goods, and this principle was reaffirmed in the 
 late case of the Great Western Railway Conipaiiy v. Crawford, 
 (6) where the consignee of rails carried by liie railway company 
 contended, that without a special contract, the company could not 
 have a lien beyond what was due on the paiticular rails detained, 
 the company having delivered the greater part of ihe consign- 
 
 (I) Sec. 234. (2) Sec. 235. 
 
 (3) Sec. 236. (4) Sec. 237. 
 
 (5) Brewster v. Hooker, 7 L. C. R. 55, j L. C. J. 90. 
 
 (6) 6 Q. L. R. 160. 
 
Operation ok the Railway. 
 
 291 
 
 ment. It was held that the company had alien upon the portion 
 of the goods in their possession for the general balance of freight 
 due on ihe whole cargo, as well as for the cliarges upon the par- 
 ticular goods retained. 
 
 The right of the company to recover freight as common 
 carriers may be enforced against both tiie shipper and ihe 
 consignee who, takes delivery of the goods , and the goods may 
 be retained until payment of freight as against the consignee, 
 unless he is relieved by special contract. 
 
 To create a valid lien, it is essential that the party through 
 whom it is acquired should himself either have the absolute 
 ownership of the property, or at least a right to vest it ; there 
 must also be an actual or constructive possession by the party 
 asserting it, with tiie express or implied assent of the party 
 against whom it is asserted, (i) Where the consignor's contract 
 is made wiili the first carrier alone for the whole distance, all 
 succeeding carriers are the agents of the first carrier, and there is 
 no priority between them and the consignor or consignee. AVhere 
 the freight is paid in advance to the first carrier, the last carriers 
 cannot claim a lien on tiie goods for advance charges paid by 
 them to intermediate carriers from whom they had received them 
 and for freight for carriage by their own line. But where the 
 freight is not paid in advance, the last carrier may, as agent for 
 the first with whom the contract was made collect the wliole 
 freight, and assert a lien on the goods, but noc for a sum beyond 
 that contracted for by the first carrier. (2) 
 
 In a New Brunswick case, which came uj) under the Govern- 
 ment Railway Act, (3) the goods had been replevied, and the 
 freight agent put in a special claim. It was contended by counsel 
 for plaintiff tliat tlie property of the Intercolonial being in the 
 Crown, the claim for lien should have been made in liie name of 
 the Queen or of the superintendent of the railway : tliat the 
 defendant had no property in the goods ; that he should have 
 specified tlie nature of the claim ; that the claim^being a personal 
 claim he had no right to show a lien in any other jicrson. But 
 
 It ' 
 
 'i 
 
 ;: : 
 
 ■I 1' 
 
 .« It 
 
 > r 
 
 : .1 
 
 (i; Trottierr'. Red River Transportation Co., Man. Rep, Temp. Woodatp. 
 262 ; and see Leaf z'. Can, Shipping Co., i L. N. 220. ■/ , . ,. 
 
 (2) lb. p. 25s ; bitch V. Newberry, i Douglas (Mich.) i. ,) . ]' , 
 
 (3) R. S.C, p. 581, sec. 33. ; ... . .' 
 
 
N 'i 
 
 I 
 
 18^ 
 
 > r 
 
 ft 
 
 i(( 
 
 '>i\' 
 
 Hi 
 
 H. ::! 
 
 
 Obligation to 
 carry. 
 
 292 
 
 The Railway Law oi- Canada. 
 
 it was held that none of these objections were sustainable ; that 
 the agent under tlie section of the Act had a special property in 
 the goods, and that under Consol. Stats. N.U., ciiap. 37, sec. 203, 
 tlie agent could claim a special property in the goods, wiihotit 
 giving further i)articulars. (i) 
 
 At common law a carrier has no lien upon goods for a general 
 balance of account more than in other cases of lien^ and such liens 
 are not favored. (2) 
 
 Tlie consignee may be held liable not only for freight on the 
 goods, l)ut for demurrage and other like charges, ])rovided that 
 it is so specified in l!:e bill of lading, and he claims delivery 
 under such bill of lading. If he presents the bill of lading and 
 a;rks delivery of the goods, he is bound to pay the freight due 
 thereon before obtaining delivery; and if the bill of lading pro- 
 vides for the payment of demurrage, he would have to pay such 
 deiiiuirage, if due, in addition to tlie freight, and the railway 
 comjiany would have a lien for the payment of such demurrage, 
 as well as for th.e payment of freight. This has been held ir 
 many cases of cariitrs by water, and also in the case of rai'way 
 companies. (3) This lien only exists so long as the goods are not 
 delivered. If the railway company delivers the goods, it loses its 
 jirivilege or lien thereon, and has only its recourse against the 
 consignee or shipper ]iersonally ; but the unloading of the 
 goods upon a platform, or the putting them into a warehouse, 
 to await their being taken delivery of by the consignee would 
 not destroy the company's litn. So loiig as the goods, remain in 
 the jjossession of the company, the lien continues to exist. (4) 
 
 18. It is i)rovided by sec. 246, that all regular trains shall be 
 started and run as nearly as practicable at regular hours fixed 
 by public notice, and the company is bound to furnish sufficient 
 accomir.odation for the transportation of all such passengers 
 and goods as are within a reasonable time previous to the hour 
 fixed offered for transportation at the place of starting, stations 
 and usual stopping places ; and the company is bound to take 
 
 (1) Rowe r . McEwen, 28 N. U. 86. 
 
 (2) Rushforlh v. Hadheld, 6 East 519 ; Redfield, Vol. 2, § 188, No. 27. 
 
 (3) Murray :•. G. T. R. Co., 5 R. L. 746. 
 
 (4) Groulx 7: Wilson, Q. R., i S. C. 546 ; Patterson v. Davidson, 2 Rev. 
 de Leg. 77. 
 
 mi , 
 
 11^ 
 
 ■■Mi 
 
Operation ok the Railway. 
 
 m 
 
 and C-irry such passengers or goods on 'J)c paymoni of tolls 
 lawfully pay.ible iherelbr, (i) and duly deliver iliciii at the 
 place of destination ; and in the case of neglect or refusal hy the 
 company either to receive or carry to their destination .sucli 
 l)asseiigers or goods, an action lies by the person aggrieved, and 
 the company is not relieved from its liability by any UDiices or 
 conditions, if thj lian-.age complained of is the result of negli- 
 gence or oinissi m on its p:ut or that of its servants. As a (]ua- 
 lification to these provisions of the Act, we must read those con- 
 tained in sees. 253 and 254, which i)rovide in effect that lliecom- 
 ]y.\uy is not bound to carry goods which, in its judgment, are 
 of a dangerous character, such as gun-powder, nitro-glycerine, 
 vitriol, and articles of a similar nature, and the company has the 
 power toopen nny packages suspected to contain such dangerous 
 articles, and if it elects to carry ihcin, the com|)any is bound to 
 l)Ut them in cars specially set aside for thai purpose, which cars 
 must have the words " dangerous cxplosius " plainly appearing 
 in large letters on both sides, and tiie fompany is liable to a 
 penalty of $500 for neglect to comply with ibis pro i-,ion of the 
 Act. On the other hand, any person sendin": such goods by the 
 railway must distinctly mark their nature on the outside of the 
 package, or otherwise give notice in writing to the station-master 
 or the employee of the company with whom they are left : and 
 there is a like jienalty of $500 for sending such goods without 
 giving such notice. This exception with regard to dangerous 
 goods provides the only case in which the cumpany can refuse 
 to carry any particular class of goods. With ihii exception lliey 
 are bound to take all goods offered to them at any of their stations, 
 and forward them within a reasonable delay, inileis some valid 
 reason be assigned for refusing to do so; and that they cannot 
 rid themselves of this obligation by a mere notice statin^Mliey 
 have ceased to carry aiy [)articiilar class of goods. (2) 
 
 (1) As to penalty for exacting e.xtorlionate tolls, ^-ee scc. 2(ja. 
 
 (2) Rutherford r. G. T. R. Co., 20 L. C. J. II. 
 
 i^t 
 
 ->f'J 
 
 
 .■.rt^ViWBKa«fttf,rtPiih«'i, , , 
 
, / / ill 
 
 <l I 
 
 
 t ' 
 I 
 
 !l: 
 
 !• 
 
 Nature of 
 liability. 
 
 CHAPTER X. 
 
 cARHir.ks 
 
 (ARRIICRS OP nOODS. 
 
 1. Anture of liabilily. 
 
 2. /.imitation of liability for u(- 
 gligi'iia: 
 
 3. /.imitation of liability geiterally. 
 
 4. 'I'hrough bills of lading ; lialn- 
 lity hyond carritr''s line. 
 
 5. /Amiting liability beyi'nd lint. 
 0. Othtr conditions limiting lia- 
 bility. 
 
 7. /.lability of sufcteding car- 
 ritrs. 
 
 8. U'/icn contract of carriage 
 begins. 
 
 9. Contract of caniage — ads of 
 agents . 
 
 10. St /'/'age in transifn. 
 
 11. /.lability after arrival of 
 goods. 
 
 12. Liability as 'ware/iousemcn , 
 
 13. /reasonable time for removal. 
 
 CARRIERS OK PASSENGERS. 
 
 14. A'atiire of liability. 
 
 15. Degree of care. 
 
 16. Latent defects in te/iicle or 
 1 roadbed. 
 
 17. /nsii/ficiency of roadway. 
 
 18. Crovn as a carrier, 
 
 19. Degree of care due those who 
 are not regular passengers , 
 
 20. /hiding in unauthorize 
 P'aee, 
 
 21. Duties of railway servants in 
 charge of train, 
 
 22. Alighting fioin trains at 
 stations. 
 
 2,v /hoarding the train, 
 
 24. Delays in carriage of /assen 
 gers, 
 
 25. /.imiting liabilily. 
 
 26. A'otice of limilaliou of liability. 
 
 TASSENOERS' BAGOAGE. / 
 
 27. Checks. 
 
 28. fersonal baggage. 1 
 
 29. L 'nchecked baggage. , 
 
 30. When liability begins. , 
 
 31. ll'/ien liability ceases, 
 
 J2. Liability of sleeping car com- 
 panies. 
 
 33. Limiting liabilily- 
 
 34. Preset ipt ion or limitation of 
 actions. , , r 
 
 Carriers ot'GoodH. 
 
 1. It lias been pointed out, that the company are bound to re- 
 ceive and carry and deliver, with the exceptions mentioned in the 
 Act, all goods offered for transportation upon due payment of the 
 tolls or freight ; and that an action lies against the company for ne- 
 glect or refusal in the premises, and that the company cannot re- 
 lieve themselves by any notice, condition or declaration, if the 
 damage arises from any negligence or omission of the company 
 or it servants, (i) These provisions of the Act are practically 
 
 (i) Supra, p. 292. 
 
 I 
 
 ^ 
 
Carriers. 
 
 295 
 
 in accordance with those of the Quebec Code on the subject of 
 carriers. By Art. 1673, they are obliged to receive and convey, 
 at the time fixed by public notice, all goods offered for trans- 
 portation, unless there is a reasonable and sufficient cause of 
 refusal, and are liable for all goods that have been received in 
 their cars or delivered to them to be placed on the train, (i) 
 Under Art, 1675, they are liable for th< loss and damage of things 
 entrusted to them, unless they can i)n)ve that such loss or dam- 
 age was caused by a fortuitous event or irresistible force, or has 
 arisen from a defect in the thing itself. Under the provisions of 
 this article, the liability of common carriers of goods is prac- 
 tically absolute, and under the common law the liability is 
 practically the same. (2) They are in effect insurers of the goods 
 entrusted to them for carriage, and will not be excused for the 
 loss or damage to such things, with the exceptions Tiientioned. 
 As t ) what constitutes the first exception, that is, a fortuitous 
 event or irresistible force, much has been written and said, but 
 the English exjjression " the act of God and the Queen's ene- 
 mies " may roughly express it. To constitute a case of either 
 fortuitous event or irresistible force, there must ensue the hap- 
 pening of an event which cannot be foreseen, and is absolutely 
 beyond the control of the carrier, and by this is meant not 
 mere accidents, such as the derailing of a train or the occur- 
 rence of fire, etc., but something which is beycnd the control of 
 man, such, lor instance, as a convulsion of nature, earthquake, 
 lightning or deluge. Tlic absence of negligence alone will not 
 excuse the carrier ; he may have used the greatest possible dili- 
 gence and care to avoid every possible cause of accident or loss, 
 and yet he will not be excused, unless he can show that it was 
 due to something beyond the foresight or control of man. (3) We 
 are speaking, now, of the liability of carriers of goods only, for, 
 as we will have occasion to point out later and more in detail, the 
 liability of carriers of passengers is not so extended, and depends 
 upon the absence or presence of negligence, both in Quebec and 
 
 (1) C. c. 1674. 
 
 (2) Coggs V. Bernard, i Smiths L. C. 8th ed., p. 213 ; 2 Redfield 6 ; Angel 
 on Carriers, 5th ed., sec. 275 ; Browne on Carriers, 89. 
 
 (3) Chalifoux :■. C P. R. Co., M. L. R., 3 Q. B. 324; 14 R. L. 149, 
 
 (3) Chalifoux :■. C P. 
 and authorities there cited. 
 
 Co., M. L. R., 3 Q. B. 324; 14 R. L. 
 
 ■ 1 
 

 396. 
 
 The Railway Law of Canada. 
 
 5i !■ 
 ii > 
 
 
 I 
 
 the other Provinces ; and in Quebec rests upon the principles laid 
 down in Art. 1053 of the Civil Code, which makes every one 
 responsible for the damage or loss caused by his positive act, 
 fault or want of care. 
 
 Carriers are also excused, within tlie meaning of this ex- 
 ception, by what is called the act of the Queen's enemies or 
 restraint of princes, that is to say, where tiie carriage of goods 
 is prevented by stitc of war or siege, as being a state of 
 things beyond the control of the carrier. The second exception 
 to this liability of the carrier is founded upon the reasonable 
 principle that he should not be held liable, where the loss or 
 damage has arisen from a defect in the thing itself. For instance, 
 if it is a perishable article, and has been carried with due despatch 
 and diligence, and yet, from its nature, is destroyed or diminished 
 in value, the carrier could not be held liable. A good example 
 of this is furnished by the case of Seymour v. Sinceiincs, (i) 
 where it was held that the heating of oats during transit, acceler- 
 ating the natural evaporation, was sufiicient reason for the 
 diminution of the grain in the proportion of three per cent., and 
 the carrier sued for failure to deliver the whole (;uantity of cargo 
 as placed on board, was relieved to that extent. Or, again, if loss 
 has arisen through the insufticiency of the package in which the 
 article is put up, as, for instance, a leaky or defective cask, in which 
 liquids are placed, a carrier could not be held resijonsible for the 
 consequent loss. (2) Again, if the tilings carried be live anijuals, 
 and they perish without fmlt on the part of the i-arrier from sick- 
 ness or their natural disposition, the carrier would not be 
 responsible 
 Limitation of ^' '^''^'■' '''^^'''l)' 's absolute, but may be limited by notices or 
 liability for conditions, providing always that the company cannot by con- 
 tract relieve itself from tlie results of its own negligence or 
 that of its servants. (3) The same provision will be found in 
 Art. 1676 of the Quebec Code, by which it is provided that 
 notices by carriers of special conditions limiting their liability are 
 binding only upon perNons to whom they are made known, and, 
 notwithstanding such notice and knowledge, the carriers are 
 liable whenever it is proved that the damage was caused by their 
 fault or the fault of those for whom they are responsible. 
 
 negligence. 
 
 (I) I R. L. 716. 
 
 (2) Browne, 104. 
 
 (3) Sec. 246, bub-scc. 3. 
 
Caurikrs. 
 
 297 
 
 id 
 
 lie 
 :t, 
 
 ;.\- 
 or 
 
 To take tliese principles in detail: the principle that tlie rail- 
 way companies, as common carriers, are insurers of the goods, 
 and cannot exempt themselves from liability for negligence by 
 any notices, conditions, or even contract, the jurisprudence has 
 been long well settled in this country; though, as to the last 
 stated proposition, grave doubts have been expressed in recent 
 years, as to its api)lication in all cases, by judges whose opinions 
 are entitled to the highest respect, (i) This principle was upheld 
 in Quebec as early as 1S34, in a case of IIa)t v. /ones, (2) 
 where a judgment, dismissing the plaintiff's action to recover from 
 a carrier the value of three crates of earthenware which had been 
 entrusted to him in good order, and arrived at their destination in 
 a damaged condition, was reversed, and the carrier held liable; 
 the Court further holding that if the carrier pretended that fraud 
 or concealment had been practised, the burden of proof was upon 
 him. And again, in 1859, in the case o{ Harris v, Ei/inoitsfoii, 
 (3) it was held that a condition in the bill oi lading relieving the 
 carrier from liability for leakage, breakage, or rust, did not release 
 him from the obligation of l)aying for the loss, when negligence 
 was sliown, (4) This ])rinciple, as t') the liability of carriers 
 of goods, has been well laid down in the case of Chalifoiix v. 
 C.P.R. Co. (5) The judgmjnt of JuJge Malhieu in that case in 
 the Superior Court t)oints out very lucidly the liability of carriers 
 of goods (6) though erroneously applying that princii-Ie to tlic 
 carriage of passengers, the judgment on that point having been 
 subsequently reversed in the Siii>renie Court. (7) 
 
 The principle was again maintained in the Supreme Court in 
 the case of Vog''.l v. G. T. 1'. Co. (S) In that case a car was 
 hired for the purpose of ciriying horses. The shipper signed a 
 shipping note, by which he agreed to the condition that he under- 
 took all risk of loss, injury, danage, etc., and it was held that 
 
 (I) Vogel 7\ G. T. Ry. Co,, 10 Ont. A. R. 162 ; nml jier lUirton, j. A., 
 at \'. 173 ; and per Strong, J., in tlie same case, 1 1 .S. C. U. at p. 628 ; and 
 per Taschereau, J., at j). 638 ; per Cameron, C.J.,in liate v. C. I'. Ry. Co , 
 14 O. R. at p. 640 ; and per MacMalion, J., in Col)l)an v. C. 1'. Ky . Co. , 26 
 O. R. at p. 763. 
 
 (3) 4 L C.J. 40. 
 T. Ry. Co , 3 K.. L. 451; and Bedarride 
 
 (2) Stuart's Rep. 589. 
 
 (4) See also Campbell r. G 
 Ch.de Fcr, Vol. 2, No. 426. 
 
 (5) M. L. R., 3 Q. 15. 324. 
 (7) 22 Can. S. C. R. 721. 
 
 ■ ? 
 
 i \ 
 I I 
 
 !» 
 
 !i 
 
 I I 
 ' 1 
 
 ! :i 
 
 > 1 
 
 . I 
 
 -%'■ 
 
 (6) 14 R. L. 149. 
 (8) II S. C. K.612. 
 
 In 
 
9^9 
 
 The Railway Law ok Canada. 
 
 I'"' 
 
 1! 
 
 i 
 
 the provision of the then Railway Act, similar to sec. 246 of 
 our present Act, prohibited the railway company from availing 
 themselves of the condition relieving the company from liability 
 where the horses were injured by a collision occurring through 
 the negligence of the company's servants. ,1 
 
 In this case, however, there were two dissenting judges, Strong 
 & Taschereau, J.J., ho'ding that the words " notice, condition or 
 declaration " in the section of the Consolidated Act of 1879, cor- 
 responding to sec. 2.|6 of the present Act, contemplate a public 
 or general notice, etc., and do not prevent the railway company 
 from entering into a special contract to protect themselves from 
 liability, (i) Mr. Justice Taschereau was very positive in his 
 opinion that the section in question does not prohibit the com- 
 pany from entering into a special contract with the shipper, 
 relieving them from liability for negligence. His Lordship said : 
 " Why should parties desirous of making such contracts be de- 
 prived of their common law right to do so? *** * Has the 
 Legislature deprived them of that right? It would require ex- 
 press words to bring me to the conclusion that it has done so. 
 I cannot find them in the statutes." The majority of the Court 
 took the other view, however, and their decision is binding law. 
 
 In a later case (2) the Court held that the provisions of this 
 section do not disable a railway company from entering into a 
 special contract for the carriage of goods, and limiting its liability 
 as to the amount of damages to bo recovered for loss or injury 
 to such goods arising from negligence. The Court thus drew a 
 distinction between the right of a company to relieve itself by 
 contract from all liability for negligence, and the right to limit 
 the amount of such liability. In this case the plaintiff delivered 
 to the railway company for carriage a valuable horse, and signed 
 a contract of carriage, in which it was stipulated that the com- 
 pany should in no case be responsible for any amount exceeding 
 $100 for any horse. The horse was killed by the negligence of 
 the company's servants, and the plaintiff took action for $5000 
 as its value. The Divisional Court held that the plaintiff's right 
 to recover damages was restricted to the sum of $100. (3) On 
 
 (1) But see Peek r. North Staffordshire Ry. Co., 10 H. L. C. 473. 
 
 (2) Robertson z: G. T. Ry. Co., 24 S. C. R. 611. 
 
 (3) 24 O. t<. 75. 
 
I 
 
 Carriers. 
 
 299 
 
 appeal the Court was equally divided, (i) and the judgment 
 therefore stood affirmed. It was held by the Chief Justice 
 {Hagarty C. /. O.) that the special limitation having been en- 
 tered into in good faith on the declared value of $ioo, and not 
 for the purpose of evading liability.', was valid and not in contra- 
 vention of sec. 246. And, holding that the rate of carriage was 
 clearly fixed as on a declared value of $100, said : — " I think it 
 *' a very fair and reasonable course for the carriers to contract 
 " that they will carry the animal so valued at the named rate. 
 " If the plaintiff had announced that his horse was a racer worth 
 *' $5000, it is shown that he could not have had it carried without 
 *' authority from headquarters, fixing a rale in some degree 
 " commensurate with the high value and the consequent risk. "(2) 
 ■f- :;: * •> It Seems unreasonable to allow a plaintiff to mislead 
 " and deceive them by agreeing in writing to restrict iheir lia- 
 '' bility as for a horse valued at $100, and thus, and thus only, 
 " to undertake its carriage, and then to ask for $5000, or fifty-fold 
 " its value." (3) Osier, /.A., agreed with the Chief Justice that 
 there is nothing in the Act which forbids a fair agreement between 
 the carrier and the shipper limiting the sum for which, in case 
 of loss through negligence, the former would be liable, although 
 the shipper cannot be forced into such an agreement ; and that 
 in the present case the shipper was estopped from contending 
 that the horse was of greater value than the amount agreed 
 upon. (^4) 
 
 Aladeiinan, J. A., while of opinion lliat an agree me U limiting 
 the amount of damages would be valid, as being in effect a 
 pre-asceriainment of the amount ; held that the contract in ques- 
 tion, having regard to the freight classification made under sec. 
 226 diJ not effect such a limitation, (5) Boyd, C, held that the 
 limitation of liability for damages arising from negligence was in- 
 vaUd under section 246. After referring to the section of the 
 English Railway & Canal Traffic Act, 1854, (6) providing in 
 terms for the making of a special signed contract by which liabi- 
 lity may be limited, and the omission of any similar provision from 
 
 (I) 21 Ont. A. R. 204. 
 (3) Ibid, at p. 208. 
 (5) Ibid. pp. 223-2^7. 
 
 (2) Ibid, at p. 206. 
 (4) Ibid, at p. 218. 
 (.6) 17 and 18 Vic, 1 
 
 18 Vic, cap. 31, sec. 
 
 j: •\ 
 
 
30O 
 
 The Railway Law ok Canada. 
 
 f If * 
 
 ' '"¥ 
 
 M i; ,: 
 
 our Act, the learned Chancellor went on to refer to the case of 
 Great IVestern h'y. Co. v. McCarthy., (i) in which cattle were 
 carried under a special contract at a reduced rate, in considera- 
 tion of the company being relieved from all liability for damage 
 ordehiy, unless loss arose through the wilful misconduct of the 
 company; and said; " By thi?? the company were held to be 
 " piotected by a proper condition, for the shipper iiad the offt.-r 
 " of a just and reasonable alternative. It may be that 1 'gisla- 
 " tion is needed in Canada lo ado|)t alternative rates j * ^ * but, 
 " assuming that it could be done without, here it does not a|)pear 
 " that any option was given to the pliin iff ; he was not uikl of 
 " any alternative, nor was there indeed any |)rovis!()n nude in 
 " Canada for the transportation of high ])rice horses at higher 
 " rates on the road. The company had a uniform rate for 
 " horses, based, it may bj, on Lionie average of weight or value, 
 " which was charged and paid as a nntier cf course. And upon 
 " this they impose the condition that limits the scale of damages 
 " in case of loss l)y negligence, which, it appears to me, '.rans- 
 " cends the statutory poweis, and is not made any heller because 
 '* the shipper has signed the willing in wliich it is embodied. 
 " The Canadian .Vet strikes at this, lest the ]iul)lic be coerced 
 '* by a ])ractical monopoly ; (see Mane .ester Ry. C>, v. Brown, 
 " 8 App. Cas. at p. 712) in other words, the attempt is made 
 " witiiout legi-laiivc power to introduce an owner's risk at re- 
 " duced rales as the standard, so as to relieve the company from 
 " their full risk, which as carriers they w luld be subjected to 
 " by collecting the ordinary or proper rate. Apart from what 
 " has been said, it appears lo me that the whole scheme of thi 
 '' Canadian Act is repugnant to this method." (2) 
 
 In ihe Supreme ('ourt it was held tiiat the words " shall in 
 no case be responsible,'' contained in the contract, wjre sulTi- 
 cienlly general to cover all cases of loss however caused, and 
 that the jilaintiff could not recover more than $too. The Chief 
 Justice {Sir Henry Strong) distinguislud Foq;e/'s case, (3) 
 pointing out that notiiing th:re d-jcided established that it was 
 not competent for a railway company to enter int ) an agreement 
 for pre ascertained damag.'s or for 'i nited liabiliiy. And, after 
 
 (1)12 App. Cas. 218. 
 (3) II S. C. R. 612. 
 
 (2) 21 Oiu. A. R. at p. 212. 
 
Carriers. 
 
 301 
 
 (luoting the scctiuii of the Act, said: "This is an tMiaclment 
 " which should not be extended beyond its literal meaning, and 
 " that is plainly confined to the jjrohibilion of any contract re- 
 " lieving the company from liability for negligence. 'Jo say that 
 " it is to shut out the company from limiting its liability for 
 " damages by an agreement fixing a value on goods carried) 
 " would be to extend its language by implication to a case which 
 " does not appear from any part of the Act itself to hiive been 
 "within the contemplation cf the legislature. So far. indeed, 
 " from this being so, we may reasonably infer that the Lei>isla- 
 " tiire never intended to enact a provision which would mcst 
 " assuredly have the result so forcibly pointed out in the judg- 
 '• ment of the learned Chief Justice of Ontario, viz., that when it 
 " was sought to compel the company to c.irry jjroperty of great 
 '' value for rales which would not cover the equivalent of a fair 
 '■ pieiiiiimi for insuring, we should find the company refusing to 
 " carry, and thus, on a calculation of pro.'.t and lo.ss, preferring 
 " to pay damages for such refusal to incurring a lisk without 
 " adequate compensation." (i) He also referred lo the case of 
 llart v. Pennsylvania Ry. Co., (2) in the Supreme Court of the 
 United States, imd quoted the language of Blackford, J., in deli- 
 vering the judgment of the Court, as follows : " It is the law of 
 " this court that acommon carrier may, by special contract, limit 
 " his common law liai)iiity, but that he car.not stipulate for 
 " exemption from the consequences of his own negligence or 
 '' that of his servants." (3) Taschereau, J., adopted the rea- 
 soning of the Chief Justice of the Court ofAp])eals; (4) and 
 Sedgewick and King, ). J., concurred with Sir Henry Strong's 
 opinion, (5) andGwynne, J., distinguished Voge/'s case chiefly on 
 the ground that since its decision, a new tariff and classification 
 of rates had been adopted, qnd approved by the Governor-in- 
 Council under sec. 226 of the Act. (6) 
 
 The effect of these two important cases (5) is to settle the 
 law in this country, so that while railway companies may not 
 under the Act escape from liability for loss occasioned by delay 
 
 (i) 24 S. C. R. at p. 616. (2) 112U. S. 331. 
 
 (3) 24 S. C. R., at p. 617. (4) lb. at p. 618. 
 
 (5) lb, p. 621. (6) lb., pp. 618-620. 
 
 (7) And see Cobban r . C. P. Ry. Co , 26 O. R.732, 
 
 '5. 
 
 I 
 
 II. 
 
 1 < 
 • 1 
 
 
302 
 
 The Railway Law ok Canada. 
 
 & I 
 
 Limitation 
 
 liability 
 
 generally. 
 
 of 
 
 or damage tliroiigh negligence to goods carried by them, under 
 any condition or agreement to the contrary, yet they may by 
 special contract limit the amount of loss to be paid, in any rea- 
 sonable manner : — " an illusory limit or a nominal agreed on 
 value would not avail." (0 ..; ' . 
 
 3. It being without doubt that railway companies as carriers 
 of goods are, in the absence of contract, liable at all events and 
 practically as insurers, it remains to be considered in what way 
 and to what extent they can limit this liability, apart from the 
 question of negligence. In the early history of railway com- 
 panies, the means resorted to of limiting their liability was by 
 conditions contained in notices posted in their stations and 
 oflices, and by other means sought to be brought to the knowl- 
 edge of the shippers of goods. Where railway companies have 
 attempted to limit their liability by conditions contained in such 
 notices, they iiave always been held to strict proof tiiat such 
 conditions have been brought to the actual knowledge of the 
 party shipping, and many cases have turned upon the question 
 as to whether such knowledge was proved or not. Nowadays, 
 liowever, the conditions are almost all invariably inserted in 
 the bill of lading. The bill of lading is not only a receipt evi- 
 dencing the delivery to the railway company of tlie goods speci- 
 fied in it, and the place of destination, but also constitutes a 
 contract between the siiipper and the carrier, containing the 
 terms and conditions upon which they mutually agree that the 
 goods shall be carried, and is usually made out in two parts : one 
 called the shipping note, being in the form of a request to the 
 railway company to receive and carry the goods specified, to a 
 certain destination, upon the terms and conditions expressed 
 upon its face and back. This shipping note is signed by the 
 shipper or his agent. The other part of the bill of lading is the 
 receipt, whereby the railway company acknowledges to have 
 received the goods, and agrees to carry them to their destination, 
 upon the same terms and conditions as appear upon the shipping 
 note. The signing of the shipping note and the delivery of the 
 receipt to the shipper constitute a contract between them bind- 
 
 I 
 
 (i) Per Hagarty, C. J. O., 21 Ont. O. R.at p. 208. 
 
 ,^|.l 
 
 ] 
 
Carriers. 
 
 303 
 
 ing upon boih; and it is vain for the shipper af:erwards to con- 
 tend that he had not read the conditions, for every man is pre- 
 sumed to have agreed to all the conditions contained in the 
 document 10 which he has affixed his signature, (i) This system 
 of written contract between tlie parlies does away with all the 
 questions which formerly arose as to proof of knowledge of 
 conditions on the part of the shipper. The right, of carriers to 
 limit their liability by conditions expressed in the bill of lading 
 has long been recognized in this country. The leading case in 
 Quebec is that of Torrance v-AHan, (2) where the doctrine was 
 definitely recognized by our Court of Appeals. The shipjjer was 
 there held bound by a condition in the bill of lading that, in the 
 event of the steamship company with which he contracted not 
 being able to forward his goods by the first ship, they would he 
 forwarded by the next vessel leaving tlie port, and his action for 
 damages for delay in not shipping his goods by the first ship 
 was dismissed. The conditions which are contained in these 
 bills of lading are as a rule very numerous, and cases under 
 varying circumstances are arising every day, and it would be 
 impossible here to go into them in detail : it will suffice to give 
 the general principles by which the validity of such condiiions 
 are to be tested. First, as has been pointed out, (3) tlie com- 
 pany cannot relieve itself by such conditions from the result of 
 its own negligence, or tliat of its servants. Secondly, the condi- 
 tions must be just ai.d reasonable. (4) So long as no negli- 
 gence is shown on the part of the company, they would be 
 relieved from liability, should the rase rome within any condi- 
 tion contained in the bill of lading which the court would cou- 
 si(ler a just and reasonable one. ' 
 
 4. As to what is a just and reasonable condition, the nv^t riuough hills 
 striking example is that condition by whicli railway conip.inie.s "/'^'V"^! 
 
 
 (1) Hutchinson on Carriers, §§ 225-229, 237-241 ; Mayer v . G. T. Ry 
 
 beyond 
 
 Co., 31 U. C. C. P. 248 ; O'Rourke i. G.'W. Ry. Co., 23 U. C. Q. n. 427 ; '•■''" '''^'' ^ 
 Parker v. S. E. Ry.Co., L. R., 2 C P. D. 416 ; Harris ?'. G. \V. Ry. Co., 
 L. R., I Q. B. D. 515 ; Grace v. Adams, 100 Mass. 505 ; Morrison v, Phil- 
 lips, etc., Co., 28 Am. Rep. 599; Kirkland z*. Dinsmore, 62 N. Y. 171 ; 
 O'Reagan v. Cunard S. S. Co., 160 Mass. 356; McFadden ?'. Missouri P. 
 Ry. Co., I Am. St. Rep. 121. 
 
 (2) 8 L. C . J . 57. (3) Supra p. 296. 
 
 (4) Peek V. North Staffordshire Ry. Co., 32 L. J. Q. B. 231, 10 H. L. 
 <-'• 473- 
 
 line. 
 
 
 m 
 
 ^ n 
 
iii-^"; 
 
 
 ^i 
 
 3^4 
 
 Thk Railway Law ok Canada. 
 
 liave attempted to limit th:ir liability in the carriage of goods 
 on what is called a through bill of lading to such loss, damage 
 or detention as may occur upon tlicir own line of railway. By 
 a through bill of lading is meant one by which the company 
 receiving the goods undertakes to forward them to a point 
 beyond the limits of its own railway, by means of other carriers, 
 whither by laiul or water. It has been a much vexed question 
 as to whether, in the absence of express contract limiting the 
 liability of the receiving carrier, the recourse of the shipper is 
 against him, or the carrier in whose charge the goods were when 
 the loss occurred. The English rule is that the receiving carrier 
 is liable, no matter where the loss occurs, that is to say, in the 
 absence of conditions limiting iiis liability. The leading case in 
 England is that of Mnsclianip v. Lancaster ct Preston Ry. Co. (i) 
 There the shipper delivered to the L. & P. Ry. Co. a parcel of 
 goods to be carried to a point which was not upon their line of 
 railway, but was a station on another railway wl.ich connected 
 with theirs. The goods were lost or damaged after having passed 
 out of the possession of the Lancaster & Preston Ry., and 
 while in the possession of the other railway company. The Court 
 held that the contract was one by which the L. & P. Ry. Co. 
 undertook to forward the goods to the destination named, and 
 tnat they were liable for the loss which occurred on the other 
 railway, who acted merely as their agents in forwarding the goods. 
 And the same principle was laid down by the House of Lords, in 
 Bristol & Exeter Ry. Co. v. Col/ins. (2) 'Jhe American rule is 
 the exact opposite, and it has been definitely held by the 
 Sui)reme Court of the Uniteil Slates in the case of the Michigan 
 Central Ky. Co. v. Myrick, (3) that the general doctrine as to 
 the transportation by connecting lines of carriers is that each 
 carrier, confining itself to its common law liability, is only bound, 
 in the absence of special contract, to carry safely over its own 
 route and safely deliver to the next connecting carrier. There 
 would seem to be reason in this doctrine, as the obligation im- 
 posed upon the railway companies by our statutes is only to carry 
 over their own railway, and would entail only liability for loss or 
 
 (I) 8M. & W. 421. 
 
 (3) U. S. Supreme Ct., i{ 
 
 5, 6 L. N. 69. 
 
 (2) 7 II. L. C. 194. 
 
Carriers. 
 
 305 
 
 damage occurring to such goods while upon their railway and in 
 charge of their servants. But the English doctrine prevails in 
 this country, and can be supported on the ground that, by 
 receiving goods addressed to a point beyond the limits of their 
 railway, a railway company enters into an implied contract at 
 the least to forward and deliver the goods there, and would be 
 liable in default for breach of contract, the succeeding carriers 
 acting as mere agents to forward the goods, (i) But where the 
 carrier receives the goods, and is paid freight only for carriage 
 to the end of his route, the fact that, at the request of the shippLT, 
 he undertakes to deliver them to another carrier, for further 
 transportation, does not make him responsible for the delivery 
 of the goods at the place of ultunate destination. (2) 
 
 5. But inasmuch as railway companies arc not bound by law or Limiting 
 
 by statute to enter into such contracts, and could not be com- ''^^"'^y, 
 
 .1 I r 1 11 1 I 1- r 1 ■ -1 beyond line, 
 
 pelled to forward goods beyond the umits of their own railway, 
 
 they have undoubtedly the right to limit their liability to such 
 
 loss or detention as may occur in the transit of the goods over 
 
 their own line; and the difficulties which have arisen in the 
 
 courts have been over the construction or interpretation to be 
 
 placed upon the conditions by which railway companies have 
 
 attempted to limit their liability in such cases. The oidinary 
 
 form of condition which has been used by railway companies with 
 
 this object has been to the effect that, where goods are destined 
 
 for points beyond the limits of the railway receiving them, the 
 
 company would forward the goods by public carrier or otherwise 
 
 as might be convenient, and that the company's liability should 
 
 cease upon either the delivery of the goods to such connecting 
 
 carrier, or the deposit of the same at the last station of their line, 
 
 and upon notice to the connecting carrier that the same were 
 
 ready for further transportation, and a further condition that the 
 
 com[)any would not be responsible for any goods lost, damaged, 
 
 missent or delayed, where such loss, damage or delay occurred 
 
 (1) Meiclianls despatch Co. z'. [lately, 14 S. C. R. 573 ; G. T. Ry.Co. z\ 
 McMillan, 16 S. C. R. 543 ; Gn'nt r'. Noithern Pacific Ry. Co., 22 O. R. 
 645 ; Caull ier 7'. C. 1'. Ky. Co., (^uc. (^). B., 1893, i M. L. D. & K. 572, 
 cunfiinicii ill a|)peal Q. R. 3 Q. n. 136, uikI see 2 I'ardes-susSjG ; 2 Bcdarride 
 Ch. de Ier 424. 
 
 (2) Jeffrey z\ Can. Shipping Co., M, L. R., 7 Q. B. I. 
 
 20 
 
 7,- f.l 
 

 I 
 
 ), 
 
 » Mm ' 
 
 
 306 
 
 I'liK Railway Iaw oi' Canadv. 
 
 after the goods had been dehvered at the station nearest to the 
 point of destination and beyond their limits, in tlie Province of 
 Quebec this condition has been almost invariably held to relieve 
 railway companies from loss or damage resulting from injury or 
 delay to goods occurring in the carriage of tlie goods upon the 
 lines of other railway companies than that receiving the goods. 
 The leading case is thai of Cluirtlcr v. G. T. R. Co., (i) where 
 goods were delivered to the Grand Trunk Railway Company to 
 be carried to a point in the United States, the bill of lading con- 
 taining conditions similar to those which have just been men- 
 tioned. The goods were carried by the G. T. Ky. to Rouse's 
 Point, and there delivered to the Central Vermont Railway Com- 
 pany for further carriage to their destination, and were damaged 
 in transit on tiie railway of the latter company. In an action by 
 the owner against the G. T. R. Co. for the conscpient loss, 
 the action was dismissed, upon the ground that the condition 
 was a just and reasonable one, and relieved the railway com- 
 pany. This decision was followed by a number of others in 
 the same sense. (2) 
 
 In a case of C/iarbonneau v. C. P. A'., (3) however, Mr. Justice 
 Gill departed from the previous jurisprudence of the Superior 
 Court, and held that the railway company was responsible. There 
 the plaintiff had shipped a carload of ajjplcs by the C. P. R. 
 Co. to London via New York, on a through bill of lading con- 
 taining the conditions above mentioned. It was proved that the 
 shipper knew that the defendant's line of railway only went as far 
 as Brockville, and tiiat at this point the goods would be trans- 
 shipped to other connecting carriers, and by them carried to 
 New York, and thence by ship to London. The Judge held that 
 the company's contract was to carry the goods to New York, 
 and that though it was i)roved that the damage to the apples 
 occurred after their arrival at New York, but before their delivery 
 to the steamship company, he held that tiie defendants were 
 liable. This judgment, however, was reversed by the Court of 
 Appeals, (4) who held that the true meaning of the condition 
 
 (1) 17L. C.J. 26. 
 
 (2) Pr.itt V. G. T. R., I L. N. 69 ; Robicliaiul v. C. V. R. Co., 8 I.. N. 
 314 ; Dionne c. C. P. K., M. L. K., i S. C. 168, confirmed in Review 
 June 30, 1885 ; Beaumont v. C. P. R., M. L. K. , 5 S. C. 255. 
 
 (3) 19R. L.317. (4) Ibid. 
 
 
m 
 
 Carriers. 
 
 307 
 
 was that the defendants were only liable for such dain;ige as 
 
 miglit occur during llie transit of the goods on their own line, and 
 
 the condition being just and reasonable and agreed to by the 
 
 shipper, they were relieved. The question has come up, however, 
 
 before the Supreme Court, and l)cen decided in an Ontario case, 
 
 (i) where the Supreme Court held that similar conditions did not 
 
 relieve liie company contracting from loss occurring in the 
 
 transit of the goods to the point of destination, but did relieve 
 
 the company for the loss occurring after their arrival. In that 
 
 case, the G. T. R. Co. undertoolv to carry certain goods on a 
 
 through bill of lading to I'ortage La Prairie, a station on the line 
 
 of the C. r. R. The bill of lading contained a condition similar 
 
 in effect to those already cited, providing that the company should 
 
 not be responsible for any loss or " ** damage ** that might 
 
 " happen to goods sent by them, if such loss *'l^ or damage 
 
 " occurred after such goods arrived at the stations or places on 
 
 " their line nearest to the points or places which they were con- 
 
 " signed to, or beyond their said limits." The goods arrived 
 
 safely at Portage La Prairie, and the loss occurred after their 
 
 arrival there but before their delivery to the consignees. The 
 
 Court held that the language of the condition did not relieve the 
 
 company for any loss which might have occurred in the transit. 
 
 This opinion of the court was obiter, as being unnecessary to the 
 
 decision of the case, the loss having occurred after the transit 
 
 had been completed, but is of course entitled to great respect, 
 
 and was arrived at in accordance with the decision ot the House 
 
 of Lords in the case of the Bristol & Exeter Raihvay v. Collins. 
 
 (2) These two cases will repay careful perusal. They arc too 
 
 lengthy to deal with in detail here, but it is well to note that the 
 
 conditions in the Collins case were not the same as those in the 
 
 McMillan case, as was ably pointed out by Judge Strong in the 
 
 (1) McMillan 7'. G. T. R. Co., 15 Ont. A. R. 14, l6 S. C. R. S43 ; 
 see also Rogers v. G. W. Ry. Co., 16 U. C. (}_. II. 389 ; l-apointe v. Vj. T. 
 Ry. Co., 26 Q. li. 479 ; Devlin v. G- T. Ry. Co., ^o Q. U. 537 ; Gordon 
 V. G. VV. Ry. Co., 34 Q. li. 224 ; Mason v. G. T. Ry. Co., 37 Q. H. 163 ; 
 Rennie v. Northern Ry. Co., 27 U. C. C. P. i^., ; Roach v. C. V. Ry. Co., 
 I Man. 158 ; and Hamilton v. G. T. Ry. Co., 23 U. C. Q. li. 600 j Bates 
 ■u. G. W. Ry. Co., 24 Q. 15. 544 ; Spettigue t/. G. \V. Ry. Co., 15 C. P. 315 ; 
 Braugh v. G. T. Ry. Co., 26 Q. B. 479. 
 
 (2) 7 H. L. C. 194. 
 
 
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 u. 
 
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 iiil i iii r ii<.ii<i» j uii ,«» . ,« iii i,i«». i .m i miu Maat3i,>;a»»!: 
 
'1 
 
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 308 
 
 'I'liK. Raiiavw I, aw III Canaha. 
 
 •l; 
 
 Supreme Court. The House of Lords in effect held that, what- 
 ever the railway comiiaiiy may have iiueiuictl to express hy thise 
 conditions, their language could only be interpreted to limit the 
 liability of the company after the delivery of the goods at ihe 
 point of destination. The decision of the Supreme Court is clear, 
 however, upon one ])oint, that inasmuch as the railway company 
 are not bound by statute or by the common law to carry goods 
 beyond the limits of their own line, they can relieve themselves 
 by contrail from liability for losses occurring beyond such limits, 
 and that though such conlrat^t is one to carry or forward die 
 goods to their ultimate destination, and the connecting carriers 
 are only to be looked upon as agents of the contracting company, 
 still, conditions may be made which, if properly framed, would 
 relieve the contracting company from liability for the losses 
 which might occur while the goods were in transit in the hands 
 of other carriers. This doctrine has been recognized also in 
 England in the case of A/ih-iiii;c v. Great lycstcrn Raihi.uiy 
 Company, (i) where a condition by which the contracting rail- 
 way company was relieved from liability for loss occurring to 
 goods while in transit over the line of another railway com- 
 pany was held to be just and reasonable, and to relieve the 
 railway company from loss. 
 
 There was a strong opinion expressed in the lAf* '/'' ttu 
 case (2) by Strong and Tasc/icreait, J. J. {Cwynm . our- 
 
 nier, J. J., diss.), th it the loss having occurred after transit 
 
 was over and the goods delivered, the liability of the cuiupany, 
 as carriers, had ceased, and the condition reduced the contra. , 
 to one of mere bailment as soon as the goods were delivered, and 
 also exempted the company from liability as warehousemen, and 
 the goods were from that time in the custody of the company on 
 whose line Portage La Prairie was situated, as bailees for the 
 shipper. 
 
 'I'he conclusion to be derived from these cases appears to be 
 this, that by issuing a through bill of lading to a point beyond 
 the limits of its own road, a railway company enters into a con- 
 tract to carry or forward the g^ods to that point, and the other 
 carriers over whose line it may be necessary that the goods should 
 
 (1) 33 L. J. C. P. 161 ; and see Fowles v. G. W. Ry. Co., 22 L. J. E.\. 
 76 ; and Mytlon v. Midland Ry. Co., 28 L. J. Ex. 385. 
 
 (2) 16S. C. R. 543. 
 
Cakuikus. 
 
 309 
 
 
 pass, ill order to rcacli llitir ilcsliiialion, imist be locjkcd upon as 
 the agents of tlie contracting company, and for failure to deliver 
 good-! at their destination, or for any loss wiiich may result by 
 injury to or detention of the goods while in the course of tiansit 
 over these connecting lines, the contracting company is liable, 
 iniless l)y the clear terms and express conditions of the contract 
 of (• irriage it has exempted itself from such liability ; and such a 
 condition so exempting a contracting carrier is just and rea-ou' 
 a!)le, and will be given force and effect to by the Courts, (i) 
 
 <», Among the conditions whicii have been considered by the Other condi- 
 
 Courts valid as relieving railway companies from liability, there I'^^Vl'"^"'"* 
 , , ^ . ' liability. 
 
 are special conditions necessitated by the nature of the goods 
 carried. Certain kinds of merchandise naturally necessitate 
 special conditions, and especially is this the case with regard to 
 perishable or fragile goods. It has been held in England that a 
 condition that fresh fish would only be carried under special 
 agreement and by particular trains, and thit the company should 
 not be held responsible under any circumstances for loss of 
 market or other injury arising from delay or dctenti'jn of trains, 
 exposure to weather, storage, etc., or from any causes other than 
 gross neglect or fraud, was just and reasonable and binding on 
 the shipper. (2) On the other hand, a condition excluding all 
 risks whatever of conveyance, loading and unloading, upon the 
 
 (1) Tlic Moiclnnts I )i«])atcli Transportaiio!! Co. contracted to carry a quan- 
 tity of hiitier from London, Ont., to Kiighuid, the Inutcr to bu cariied from 
 London to the Suspension Uridjjc at .Niagara Falls by llic Great Western l\y 
 Co., tlience to New York by the Transportation Co., there to be delivered 
 to a steamship company for carrlaj^e to Kn^laiid, A clause in the bill of 
 lading provided, that if damage was caused to the goods during' transit, the 
 sole liability was to lie on the company having tlie custody of the goods at 
 the time of such damage occurrhig. 'I'he butler was carried to New York, 
 and there placed on lighters belonging to the Transporiation Company to be 
 conveyed to the S.S. •' I)orset.'' Owing to the lighters not being able to get 
 akngside the steamer, she sailed without the butter, an>l it was only forwarded 
 five days later by another vessel of the sieaniship company. In the iiiean- 
 tinie, the butter was damaged by heat while still in the lighters. It was held 
 by the .Supreme Court, aftirming the judgment of the Ontario Court of Appeils 
 (12 Ont. A. R. 201) that the Transpjrtation Company, having m.ade a contract 
 for the through carriage of the goods, were liable for the damage, and were 
 not relieved under the clause in the bill of lading, as the butter was never 
 delivered to the steamship company, but was in the custody of the Trans- 
 portation Company when the damage occurred. Merchants Despatch Trans- 
 portation Company v. Hitely, 14 S. C. R. 572. 
 
 (2) Ueal t«. South Devon Ry. Co., il L. T. N. S. 1S4, 29 L. J. Ex. 441. 
 
 1^ 
 
 i 
 
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 ii 
 
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 1 
 
 ! 
 
 1, 
 
 \ 
 
 
 3IC 
 
 THr; Railway I,a\v of Canada. 
 
 ground that the company refused to be responsible for any injury 
 or damage, however caused, occurring to live stock, was held to 
 be unreasonable, (i) 
 
 The same rule has been applied in the State of New York with 
 regard to another perishable article — plate glass, in the case of 
 Nclsjn V. Hudson River Ry. Co. (2) And the same principle 
 has been recognized in the Quebec Courts as to carriers by water 
 in the case of Moiii^enais v. Allan. (3) Plate glass is a very good 
 illustration of one kind of perishable goods against loss for which 
 railway companies or other carriers have the right to protect 
 themselves. Its value is great, and it occupies a large space and 
 is very subject to breakage, and carriers generally in this country 
 have refused to carry plate glass except upon special conditions, 
 either relieving them from liability for breakage, or upon payment 
 of an extra rate of freight as insurance. There is nothing in the 
 Railway Act which would prevent companies from imposing a 
 special rate upon the carriage of such goods, provided that such 
 rate be charged equally to all persons under the same circum- 
 stances for the same class of goods; but, of course, any such 
 rates would have to be ajjproved by the Governor in Council, 
 (4) and, under the recent decisions, (5) would not relieve car- 
 riers from liability if breakage should occur from negligence. If 
 perishable articles, such as fruits, are damaged by their own 
 weight and the inevitable shaking of the carriage, 'hey are injured 
 through their own intrinsic qualities, \^^ through pressure of 
 other goods carried with them, or by an extraordinary shock or 
 shaking, whether throu;^h negligence or not, the carrier is li Me. 
 Another condition, with regard to defects in the thing itself, or 
 the " proppi- vice," as it is called in England, is that by which 
 companies seek to relieve themselves from liability for injury to 
 live animals occasioned by their unruliness, kicking, plunging, 
 etc. Such a condition has been held to be reasonable and bind- 
 ing in England in the case of Krndal v. London <f? S. \V. Ry. Co> 
 
 (1) McMnnus v. Lancasliiie & Voikshiio Ry. Cc, 28 L.J. Ex. 353. 
 
 (2) 4S N. V. 498. 
 
 (3) Q. R. I, Q. 15. i8t. 
 
 (4) Cobban v. C. P. Ry. Co., 26 O. R. 732. 
 
 (5) Sufra,Y>y. 297 et ?cq. 
 
Carriers. 
 
 311 
 
 (i) That was the case of the carriage of a horse. On arrival, 
 he was found to be much cut about, especially about the forelegs 
 and fetlock joints. It was admitted that the defendants had 
 been guilty of no negligence, and the point involved was whether 
 they were liable, as insurers, for the safety of live animals as in 
 the case of goods. The jury enter ,d a verdict for the plaintiff, 
 but the question of liability was reserved for the full court. The 
 opinion of Baron Bramwell clearly expresses the doctrine in such 
 cases . He said : '' The horse was the immediate cause of its own 
 *' injuries. It slipped, or fell, or kicked or plunged, or in some way 
 "hurt itself. If it did so from no cause otlier than its inherent 
 "l)ro])cnsities, its i)roper vice, defendants are not liable ; but if it so 
 " hurt itself from the defendant's negligence or any misfortune hap- 
 " pening to the train, though not through any negligence of defen- 
 "dants, as, for instance, from the horse-box leaving the line 
 " through some obstruction maliciously laid upon it, then the 
 " defendant would, as insurers, be liable." 
 
 The consignee cannot refuse to receive the goods from the 
 carrier because they were damaged, but has his remedy in an 
 action of damages. (2) 
 
 Where goods are taken at a cheap rate of carriage, the com- 
 pany will not be liable for damages caused by the packing 
 being insufficient, and where the goods were wrongly described. 
 For instance, where the goods were electrical fittings in china 
 and porcelain, and were described as hardware, it was pointed 
 out that the company's servants would not handle with the 
 same care goods which they understood to be hardware, as 
 they would a case of china. (3) In another case, a piano carefully 
 packed was handed to the carriers, and it was received by the 
 consignee in a damaged condur n. It did not appear clear how 
 the damage was sustained, and the Court, holding that the burden 
 of proof being upon the carriers to show that the damage had not 
 occurred through their fault or negligence, which they failed to 
 
 (n 41 L. J. Exch. 184 ; 26 L. T. N. S. 735 ; and see Blower v. G. W. 
 Ry. Co., L. R , 7 C. P. 655, 41 L. J. C. P. 268 ; .ind Hawkins v. G. W. 
 Ry. Co. (15th I'eb., 1895). 
 
 (2) HalciowT^ I.eMesurier,2i Rev. Leg. 28; Baillyz/. R. & O. Nav.Co., 
 20 Rev. Leg. 127. 
 
 (3) Connelly v. The Great Northern Ry. Co., 15 Legal News 365. 
 
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 in;.*" 
 
 I < I,. 
 
 I I 111 
 
 Liability of 
 
 succeedinj; 
 
 carriers. 
 
 312 
 
 The Railway Law ok Canada. 
 
 do, were liable ; but the dissenting judge thought that as the piano 
 was of a new patent type, and contained attached to the wires 
 160 weiglits of one pound each, the express company not 
 being informed of its unusual character, could not be supposL-d 
 to handle it with a care beyond that required for an ordinary 
 piano, (i) 
 
 Where the company's time-table showed that the time for 
 transporting between two places was two hours, a delay of twenty- 
 four hours for carriage of fiesh meat in summer was held unrea- 
 sonable. (2) 
 
 The heating of hay causes an increased evaporation and a 
 corresi)onding shrinkage, and proof of this will exonerate the 
 carrier from short delivery. (3) 
 
 7. A carrier who receives goods c/i roufe from another carrier, 
 and enters them on his way-bills, and collects the freight, is, never- 
 theless, not responsible for goods lost by the first carrier. (4) 
 
 Neither is the second carrier responsible for delay in the 
 delivery of tiie gjcds, caused by an error in the way-bill of a 
 preceding carrier, delivered to the succeeding carrier with the 
 goods, the way-bill stating the wrong place of destination. (5) 
 
 Where a railway comjiany received from another comi)anv a 
 sealed car said to contain 150 barrels of tlour, and transi)orled it 
 to destination, when, on the car being opened, it was found to 
 contain only 142 barrels, the Court held that the second carriers, 
 not being parties to the original bill of lading, were not bound 
 by it, and had fulfilled all their obligations by the delivery of the 
 contents of tl e sealed car. (6) 
 
 In another case, certain bars or bundles of iron cam^ by ship 
 from Gla-^gow to Montreal consigned to the plaintiff at Guelph, 
 Ont. His agent gave to the agent of a railway company an 
 order to get the goods from the ship, and afterwards received 
 
 (1) Ouiiiitt r'. Tiie Caiiulinn Express Co., 32 L. C. J. 319. 
 
 (2) Deloinier'. C. I'. K., 11 J -c. News lo6 ; and see I'ontbriaml v. G. T, 
 R., M. L. K. -., S. C. 61. 
 
 (3) Seymour ;■. Sinceiiiies. , ' ,. I,. 716 ( (,). 1!. 1869). 
 
 (4) Hel'i.nn I'. G. T. Ky. Co, 17 (^). ],. K, 299 ; in this Cise, (lefeiHluils 
 were oTuletiined to pay ilie costs of the suit, as llie i)lainiift' w.is nii>licl by 
 their way liills. 
 
 (5) Treslei- 7\ C 1'. Rv. Co , (K R,, r O.IJ. 12. 
 (0) Wader'. C.r Ry Co., 8 L. N. 348. 
 
 i 
 
Carrikks, 
 
 313 
 
 from the railway company a receipt specifying ilie ninnl)cr of bars 
 and bundles and tlie gross weight, witli a primed notice on tlie 
 face of the receipt that " rates of weights entered in receipts or 
 shii)ping bills will not be acknowledged." All the iron received 
 by the railway company was delivered at Guelj)!!, but there was 
 a very considerable deficiency in the weight as stated in the 
 receipt. So far as appeared, the iron had not been weighed 
 either on being taken from the ship or afterwards. It was held 
 that the railway company were not estopped by the statement of 
 weight in the receipt, and were not liable for more than they 
 actually received from the ship and delivered to the plaintiff, (i) 
 
 8. '^gain, the question arises, when does the contract of carriage ^Vl)en con- 
 begin so as to fix uiion thecomiiany the responsibility of carriers p^!'^'-' of crr- 
 o ' I J i J nage begins. 
 
 The following case may be taken as a good illustration of the 
 question. Plaintiff delivered a planing machine to defendants to 
 be carried between two stations. In placing it on board a car for 
 that purpose, defendants' servants injured the machine by negli- 
 gence or want of proper appliances. It was held that defendants 
 were liable, notwithstanding the special con tract that the machinery 
 was to be carried at the owner's risk. (2) As was said in that case, 
 "when the plaintiff placed the planer on the platform, jjaid the 
 freight, and made, tacitly or otherwise, the agreement for carriage 
 expressed in the receipt note, an imjilied contract arose between 
 him and the defendant company that the latter would, with reason- 
 able care, take the machine and carry it under the terms and 
 condi'.ions of the receipt note." (3) " I think it may be 
 further said, with good reason, that the limited contract contained 
 in the receipt note was m ideon the assumption that the comiiany 
 would provide proper means for putting the planer on their cars, 
 and that in this view the decision of G.l.R.v. fiiz^cra/ti (^) 
 will apply." (5) The conditions of carriage contained in the 
 bill of lading or receipt note do not extend to what occurs before 
 
 (1) Horseman v. G. T. Ry. Co., 31 U. C. Q. 13. 535 ; see .ilso MiUigan r'. 
 G. T. Ky. Co., 17 C. 1'. 115. 
 
 (2) Whitman t. W. C. Ky. Co., 5 Kuss. k Gild, 405 ; and see G.T. R, 
 V, Mountain, (> L. C. J. 173. 
 
 (3) Whiiman v. W. C. Ky. Co., 5 Kuss. A: Geld, at i).409. 
 
 (4) 5 S. C. K. 204. 
 
 (5) \Vliilnuin r. W. C. Ky. Co, 5 Kihs, it Geld, at p. 409. 
 
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 "I'liK PvAiLWAY Law of Canada. 
 
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 Contract of 
 carriage, acts 
 of agents. 
 
 the lading, (i) In another case (2) where the plaintiffs 
 shipped lumber by the defendants, loading the car themselves, 
 there was a short delivery of the lumber, and no evidence as to 
 how the loss occurred, it was held that the defendants were 
 liable. But if the defendants could have shown that the 
 plaintiffs agreed to do the loading, and loaded the lumber so 
 badly, that it was lost through their improper loading, that no 
 doubt would make out a defence, unless it could be shown that 
 by the use of ordinary care the damage would not have been as 
 extensive as it proved to be. (3) 
 
 9. Wiiere the only evidence of the contract to carry was that 
 the foreman of the freight department at one of the defendants' 
 stations agreed to have certain trees forwarded to a station not 
 on the defendants' line, but on one connecting therewith, it was 
 held that this was evidence to be submitted to a jury of a con- 
 tract to that effect binding the defendants. (4) In another 
 case (5) plaintiff sent by another man a box of goods to be for- 
 warded on the defendants' line, who, seeing several men working 
 at tliC freight shed, told one of them he had a box to forward. 
 The man told him " to bring it and put it in there," which he did. 
 He got no receipt. The box was lost. Plaintiff then went to 
 the station and saw the man already referred to, who admitted 
 he got the box, but could not say what he had done with it. It 
 was held that the admission of the man whom plaintiff saw was 
 not admissible as evidence against the defendants, and as it was 
 the only evidence of delivery, the plaintiff should be non- 
 suited. (6) 
 
 The very recent case of Northern Pacific Railway Company 
 v. Grant (7) affords a good illustration of the powers of an 
 agent to bind the railway company. Tiiere one Evans, residing 
 
 (1) Taitersall J'. Nat. St. Co.,L. R, 12 Q. 15. D. 297. 
 
 (2) Henry z/. C. P. R., I Man. 210. 
 
 (3) III. it Hutchinson f.Guion, 5 C. 15. N. S. 149; Hait i'. Jones, Stuart's 
 Rep., p. 589. 
 
 (4) McGill V. G. T. R , 19 Ont. \. R. 245. 
 
 (5) Voun^; V. C. P. R.., I Man. 205. 
 
 (6) And see Leigh v. Smith, I C. & P. 638; Griffin v. The Great 
 Western Ry. Co., 15 U. C. Q. B. 507 ; Slim v, Tlie Great Northern Ry. 
 Co., 14 C. 15. 647; Tlie Great Western Ry. Co. v. Willis, i8C.li. N. S. 
 
 748. 
 
 f7) 24 S. C. R. 546 ; affirming 21 Ont. A. R. 322, 22 O. R. 645. 
 
 i 
 
 
Carriers. 
 
 315 
 
 at Victoria, B.C., being about to purchase goods from a firm of 
 Grant & Co. in Ontario, wrote to that firm, at the request of the 
 railway company's agent at Victoria, asking tlieiii to ship the 
 goods via Grand Trunk Railway and Chicago (S: N. \V.,care of 
 the Northern Pacific at St. Paul's. The freight agent at Victoria 
 forwarded the letter to the freight agent of the latter company at 
 Toronto, who sent it Grant & Co., writing them liimself as 
 follows ; — " I enclose you card of advice, and if you will kindly 
 " fill it up when you make the shipment and send it to me, I will 
 " trace and hurry them through, and advise you of delivery to 
 " consignee." Grant & Co. shipped the goods as suggested in 
 this letter, deliverahle to their own order. It was held that on 
 arrival of the goods at St. Pauls, the Northern Pacific were bound 
 to accept delivery of them for carriage to Britisii Columl)ia, and 
 to expedite such carriage; that they were in that company's 
 care from St. Paul's to British Columbia ; that the agent at 
 Toronto had authority to bind the company; and that tlie com- 
 pany were liable to Grant & Co. for the value of the goods, 
 which were improperly delivered to Evans without an order from 
 Grant & Co. and not paid for. (i) 
 
 The company will not be excused from liability because the 
 disregard of duty on the part of the agent was willful. ^2) In 
 determining the liability of the company for the acts of its agents, 
 the true inquiry is whether the agent was acting within the scope 
 of his employment. If so, iiis acts bind the company, whether 
 willful or negligent. (3) 
 
 10. The carrier's interest in this question, says Mr. Redfield in Stoppage in 
 
 , , . ., transitu, 
 
 hiswoik on railways, arises only when he is required by the ven- 
 dor, while the goods are still in his possession, to redeliver them to 
 him or some one on his account. After such demand, it becomes 
 important to the carrier, to determine whether the right to reclaim 
 the goods still exists. For if so, and the carrier 'dine to re- 
 deliver them, or deliver thein to the vendee, he and all persons 
 claiming to detain them against the claim of the vendor become 
 liable for the value. (4) The authorities show that the vendor has 
 
 (1) See also as to authority of agents, supra, pp. 29-30. 
 
 (2) Weed V. Panama Rai/road Co., £ Duer 193. 
 
 (3) Redfield, Vol. 2, § 182, sec. 3, note 2. 
 
 (4) Redfield, Vol. 2, § 186, Mo. 810 ; Campbell v. Jones, 3 L. C.J. 96. 
 
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 a riglit to St )p /// transitu until tlie goods have actually got home 
 into tlie hands of the purchaser, or of some one who receives 
 them in tlic character of his servant or agent. In order that tlie 
 vendor should have lost that right, the goods must be in the 
 hands of the purchaser or of some one who can be treated as his 
 servant or agent, and not in the hands uf a mere intermediary, (i) 
 The law has been very clearly and accurately laid down by the 
 Master of the Rolls in the case oi Bet he/ 1 v. Clark, (2) which was 
 approved by the Privy Council in Lyons v. Hoffnung, (3) He 
 says : " When the goods have not been delivered to the i)urchaser, 
 or to any agent of his to hold for him otherwise than as a carrier, 
 but are still in the hands of the carrier as such, and for the pur- 
 poses of the transit, ihen, although such carrier was the pur- 
 chaser's agent to accept the delivery so as to pass the property, 
 nevertheless, the goods are in transitu and may be stopped." 
 
 And in the same case. Cave, J., said : " When the goods have 
 arrived at their destination and have been delivered to the pur- 
 chaser or his agent, or when the carrier holds them as warehouse- 
 man for the i)urchaser, and no longer as carrier only, the trans- 
 itus is at an end." The doctrine of stoppage /;/ transitu has 
 always been construed favorably to the unpaid vendor, (4) and 
 on these grounds, we can reconcile the Ontario case oi Anderson 
 V. Fish (5) with the general statement of the law as given above. 
 In this case, the defendants, unpaid vendors of goods, shijiped 
 them over the Grand Trunk Railway to the vendee at W. Wiien 
 the goods arrived, the railway company's agent at AV. sent 
 an advice note to the vendue, who refused to take it. After this, 
 the vendee assigned to lb i)laintiff for the benefit of his creditors, 
 and the plaintiff, as soon ^s the assignment was delivered to !iim, 
 produced it to the railway company's agent, and claimed the goods, 
 offering to piy the freight, but producing no 'dvice note. The 
 agent did not refuse to deliver the goods, but staled that, accord- 
 ing to the rules of the comi^any, when the person claiming the 
 goods was an assignee for the benefit of creditors, his duly 
 
 (i) Per James, L. J., in Ex I'aite] Rosevear China Clay Co., 11 Ch. I). 
 560 at p. 568. 
 
 (2) L. R., 20 Q. R. D. at p. 617. 
 
 (3) M 'M^P Cas. 391 (1890). 
 
 (4) lielhell v. Clark, L. R., 20 O. B. D. 617, Loul Esher, M. R. 
 
 (5) 16 O. R. 476. Confirmed in appeal, 17 Out. A. R. 28. 
 
 ■ . ■a!T ? . i^ -ii 
 
Carrikks. 
 
 3J7 
 
 
 was to telegraph tothe company's solicitor for instructions ; ho 
 did so telegraph, but before he received an answer, and on I he 
 same day, the vendors notified him not to deliver the goods to 
 the vendee or his assignee, asserting a right to stop thcni in 
 tiansitu. It was held (Falconbridge, J., dissenting) that the action 
 of the railway company's agent in delaying till he rcceivoJ 
 instructions from the solicitor was not wrongful ; that the Iransitus 
 was not at an end when the vendors intervened, and the right of 
 stoppage was well exercised. 
 
 11, It has been a much discussed point as to whether railway Liability after 
 
 companies continue to be liable as common carriers after (he^''"^!^' °'^ 
 
 . , , . . . . goods, 
 
 arrival of the goods at their destination. On arrival of goods, ii 
 
 is customary for railway companies to give notice to the con- 
 signee or person to whom the goods are addressed, of tluir 
 arrival, and that the goods will be stored and will remain at the 
 risk of the consignee, unless taken delivery of immediately, (i) 
 The principle seems to be generally recognized that the respons- 
 ibility of the company as common carriers ceases after the goods 
 have arrived at their destination, and a reasonable time has been 
 given to the owner to remove them. And that after the expira- 
 tion of such reasonable time, their liability|as oirriers would cease, 
 and that they would thenceforward be liable as warehousemen, 
 or bailees for hire or otherwise, as they might or might not charge 
 for the storage of goods ; that is to say, that their liability would 
 no longer be that of insurers, or a liability at all events, except 
 in cases where they would prove that the loss occurred through a 
 fortuitous event or irresistible force, but would depend upon 
 whether they were guilty of negligence or not. In other words, 
 if the owner or consignee of the goods chooses to leave them in 
 the possession of the company after their arrival, it is a voluntary 
 deposit, and the company would be only held to the diligence 
 which is required of depositaries in such cases, — that is to say, 
 they would be held to the care of a prudent administrator, as it is 
 expressed in the Quebec Code. (2) The goods would remain in 
 the hands of the company at the risk of the owner or consignee, 
 but the company would be liable if they were injured or damaged 
 through any want of care or negligence on the part of the com- 
 
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 (I) And see Ry. Act, sec. 234. 
 
 (2) C. C. 1802. 
 
3<8 
 
 TiiK Railway Law ok Canada. 
 
 '':*'; 
 
 pany. Tlie contract of the railway company as common carriers 
 of goods ceases on the arrival of Uie goods, and their only obliga- 
 tion llicrcafter is to exercise reasonable care in preserving ihem 
 unlil called for ; and if the consignee or owner^ after having 
 received notice of their arrival, neglects to take delivery within a 
 reasonable time, there is no logical reason why the company 
 should be held "-esiionsible for loss or damage happening to the 
 goods wilhont ; egligence on their part. 
 
 These principles may be illustrated, by the following decisions : 
 In the case of the Grand Trunk Ry, v. Gut/nan (i), where 
 notice of the arrival of goods had been given by the com- 
 pany to the consignees, and that they remained entirely at 
 the owner's risk, and that the company would not hold them- 
 selves responsible for damage, but if stored, that a certain 
 rate of storage would be charged, which storage was i)aid, 
 the Court of Appeal for Quebec held that though the lia- 
 bility of the company as common carriers ceased by the arrival 
 of the goods, they were still liable for damage as warehousemen 
 and baileei-, for hire, but that the evidence did not show any 
 negligence on the part of the railway company. This holding 
 was by the majority of the Court, composed of Chief Justice 
 Duval and Judges Monk and Stuart, but the minority, composed 
 of Judges Badgley and Drummond, held that by law negligence 
 was presumed, if damage was shown, and that the onus of proof 
 of care was on the company, who had made no proof to rebut 
 this presumption. The general principle laid down by the i...ij or- 
 ity of the Court in this case appears to be undoubtedly correct. 
 The only doubtful point is as to whether the burden of proof is 
 upon the railway company to negative any presumption of 
 negligence, or upon the owner to prove negligence on the part of 
 the company. It would appear that the proper doctrine was 
 that held by the majority of the Court, for while in the case of an 
 accident upon the railway, such as the derailment of a train, 
 there is a presumption of negligence which has to be rebutted by 
 the company, (2) there would not be the same reason for pre- 
 suming negligence in the case of loss or injury to goods when in 
 
 ! 
 
 (1) 3 K. L. 452. 
 
 (2) Chalifoux V. C. P. Ry. Co., Cassel's Dig. 749. 22 S. C. R. 721. 
 
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 Caruieks. 
 
 319 
 
 their possession as wareliousemen. There, their hability would 
 depend U|)on negligence, and the fact, for instance, of tiie burning 
 of the warehouse or station l)uilding would hardly constitute a 
 presumiitive case of negh'gence. The plaintiff's case depending 
 upon tl'.e negligence of the company, il would be necessary for him 
 to make out at least a. prima facie c:\sg, in order to recover. In 
 other words, the plaintiff would have to show some fault on the 
 ])art of the company as warehousemen, in order to maintain his 
 action, (i) 
 
 In two earlier cases, where actions were taken to recover value 
 of goods left at a station to he forwarded, but siored during a 
 snow storm, it was held, notwithstanding^ that the com])any had 
 given notice by public advertisement and otherwise that they 
 would not be liable for damage by fire, and notwithstanding 
 evidence that plaintiff had read one of said notices, that inasmuch 
 as the storage of cotton waste in the building in which goods 
 to a very large extent wcie stored amounted to negligence on 
 the part of the comi)any, they must be held liable. (2) 
 
 In an early Ontario case (3) it was held that where goods were 
 landed from a ship at the port of destination, and notice of 
 arrival given, the liability of the carrier ceased. In Inman v. 
 1 he Buffalo & Lake Huron Raihvay Company, {^) goods were 
 shipi)ed from Buffalo to Caledonia for the plaintiffs, who lived at 
 Port Dover, 18 miles from the station. Draper, C. J., held 
 that the defendants had a right 10 deliver at Caledonia imme- 
 diately after arrival, and, that being the terminus of the transit, 
 their duty was fulfilled by placing the goods in a safe place, and 
 whatever the responsibility of the company after that might be, 
 it was not that of common carriers. Plaintiff had no ri^ht, he 
 
 (I) Bowie V. buffalo, l!ianlfoni & Gcdeiich Ky. Co.; 7 U. C. C, I'. 191 ; 
 O'Neill r.G. W. Ky. Co., 7 U. C. C. P. 203; Biodie v. Noillern Ry. 
 Co., 6 O. K. 180 ; Walters ;■. C. P. Ky. Co., I North West I'er. 17 ; 
 Kicharclson f. C.P.Ry.Co., 19 O. K. .369 ; Hogan v. G.T.Ky. ( o., 2 Q, 
 L. K 142 : Kellert v. G. T. Ky. Co., 22 1.. C J. 257. 
 
 (2 G. r. Rv. Co. r. Huston, 3 L. C. J. 269 .'^. C. Que. ; G. I'. U y. Co. 
 V. Mountain, t> L. C. J. 173, Q. B. (Jue. 
 
 (3) McKay 7\ Lockhait, 4 O. S. 407. 
 
 (4) 7 U. C. C. P. 325 ; and see Bowie r'. liuffalo, Biantfoid A; Gi.ilerich 
 Ry. Co., 7 I,:. C. C. P. 191 ; Mason v. G. 1". R., 37 U. C. Q. li. 163 ; Hall 
 V. G. T. R., 34 U.C. (^. B. 517 ; O'Neill v. Great Western Ry. Co., 7 U. 
 C. C. P. 203 ; Mayer 7\ (J. T. R., 31 U. C. C. P. 248 ; Leader v. The North- 
 ern Ky. Co., 3 O. R. 92. 
 
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 said, to continue the defendant's responsibility by delaying for a 
 sinj^le hour after notice. 
 
 Where, however, it is the practice of the company to deliver 
 to the consignees the goods brought by them, and the freigiit 
 charges include cartage, a condition tiiat " the company will 
 not be res|)onsiI)le for any goods left until called for, or to order, 
 warehoused for the convenience of the parties to whom tiiey 
 belong, or by or to whom they are consigned, and that the delivery 
 of goods will be considered comi)Iete, and the responsibility of 
 the com[)any will be considered to terminate, when placed in 
 the company's shed or warehouse," would only affect the com- 
 pany as carriers, and not relieve them from liability as ware- 
 housemen, (i) 
 
 Where the station was some five miles distant from the village 
 where the plaintiff's place of business was, it was held that the 
 station was the destination of the goods and not the village ; and 
 the railway company's liability as carriers ceased on delivery at 
 the station. (2) 
 
 In England it has been held that where cattle arrived on Sunday 
 about noon, and because police regulations forbade driving them 
 through the streets on that day, the company's servants and a 
 servant of the plaintiff's put them in a pen, and when the owner 
 came for them on the following morning, two were found dead, the 
 liability of the defendants as carriers ceased when they put the 
 cattle in the pen. (3) In another case the contract was to carry 
 goods from A. to B., to be forwarded to C. The defendants did 
 carry the goods from A. to B., and deposited them in their ware- 
 house, but before they had an opportunity of forwarding them, 
 the goods were burnt. It was held, the defendants were not liable 
 as carriers. (4) In Chapman v. The Great Western Railway 
 Company, (5) where goods arrived on the L'4th and 25th, and 
 were burned on the 27th, and the defendants were held not to be 
 liable, Coleridge, J., said: '' Plaintiff cannot, for his own con- 
 
 (i) .McCro-seii v. (J. 'I". K., 23 U. C. C. I'. 107. 
 
 (2) Rich.ir Ison r'. C. P. R., 19 O. 1< . 369. 
 
 (3) .Sliepheid v. Biistol iS: Exeter Uy. Co., 37 L J. Ex. Cli. 1(3. 
 
 (4) Gar>icle v. The I'ropnelois of the Trent & Mersey Navigation Co., 4 
 T. K. 581. 
 
 (5) L. R., 5 Q.H.I). 278. 
 
Carriers. 
 
 3^> 
 
 venience, prolong the heavier liability of tlic carriers beyond a 
 reasonable time." 
 
 In the United States it has been held that the mere landing and 
 putting off the goods in their warehouse ends the liability of the 
 carriers as such. It is a delivery by the company as carriers to 
 themselves as warehousemen, (i) 
 
 1J3, A question arises as to when the disability of a company to Liability as 
 contract away its liability for negligence under sub-sec. 3 of sec. warehouse- ) 
 246 of the Railway Act, ceases — that is to say, when are the goods 
 to be considered as " discharged " ? It was held in Scarlett v. 
 The Great Western Ry. Co., (2) which was governed by a sec- 
 tion exactly similar to the above, that this section does not 
 extend to all cases in which negligence is charged against the 
 railway company, but to cases only of neglect coming within the 
 provisions of the ten preceding sub-sections. On these grounds it 
 was decided in the recent case of Walters v. C. P. R,, (3) that 
 a company can restrict its liability " for loss or damage done to 
 goods left until called for, and warehoused for the convenience of 
 
 the parties to whom they are consigned the warehousing 
 
 of all goods to be at the owner's risk and expense," and that 
 when the goods were placed in the warehouse they were dis- 
 charged within the meaning of the Act. And it was held in this 
 case that where the goods began to arrive at their destination at 
 about the 5th of May, and some came each day thereafter, until 
 the last arrived, at about noon on Sunday, the 12th day of May, 
 and a fire occurred about noon on the following day, a reasonable 
 time had elapsed to allow the plaintiffs to remove their goods. 
 
 (4) 
 
 13. The consignee must have reasonable time within which to Reasonable 
 
 take away the goods, and that reasonable time begins from notice ''™'^ [°'' ''^" 
 
 , , , • • , , , , r ■ moval. 
 
 or knowledge ; what is notice or knowledge turns on the facts in 
 
 each case, the custom of the carrier and the practice of the party 
 
 (i) Norway Plairn Co. v. Boston & Me. Ry. Co., i Gray 263. 
 
 (2) 41 U, C. Q. B. 211. 
 
 (3) I North West Territories 17, 1887. 
 
 (4) And see Vineburg r. G. T. R., 13 Ont. App. 93; Hodkinson v. The 
 London & N. W. Ry . Co., L. R. 14 Q. 15. D. 228, where baggage which arrived 
 at 4.25 p.m. was called for at 6 o'clock of the same day, but could not be 
 found. Held, that the defendants' rcsponiibility as carriers had ceased when , 
 an opportunity was afforded the plaintiff of taking delirery of his property. 
 
 21 
 
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 The Kaiiavay Law ok Canada. 
 
 or consignee, (i) Tlic American authorilics, on the subject 
 of notice of arrival, are very conflicting. Judge Cooly, in render- 
 ing the opinion of the Court in Mc Millan v. Michigan Soutlurn A 
 Noitfiern Indiana Railroaii Company^ (2) says : " I am unable to 
 discover any ground whicli to me is satisfactory, on which a com- 
 mon carrier of goods can excuse himself from personal delivery 
 to the consignee, except by that which usage has made a substi- 
 tute. To require him to give notice when the goods are received, 
 so that the consignee may know when to call for them, imposes 
 upon him no unreasonable burden." The time in general 
 regarded as reasonable would be such as might in reason and 
 justice be deemed sufRciunt for any resident of the vicinity to 
 come for the goods with the usual appliances for cartage or dray- 
 age to be had under any ordinary circumstances. (3) The carrier's 
 liability does not cease until the goods have been placed in a 
 position to be handled by the consignee without unreasonable 
 inconvenience. (4) Where, however, goods are detained by the 
 company for payment of freight, they remain at the risk of the 
 owners. (5) 
 y' The question as whether the consignee of goods carried as 
 / freight or a passenger taking luggage with him has, in a particular 
 / c;ise, applied for the goods or luggage within a reasonable lime 
 
 / after their arrival, is a question of fact to be determined in each 
 
 I case from circumstances. (6) 
 
 ^ Carriers of Passengers. 
 
 Nature of 1^» ^^ '^^^ h&tvi already pointed out that there is a distinction 
 
 liability. between the liability of railway companies as carriers of passen- 
 
 gers and as carriers of goods. (7) 
 
 As carriers of goods in the absence of special contract, they 
 are practically insurers of the things entrusted to them for 
 carriage ; but as carriers of passengers,'they are liable for injuries 
 
 (1) Richardson ;'. C. P. R., 19 O. R. 369 ; Chapman v. Great Western 
 Ry. Co.,L. R., S Q. B. D. 278. 
 
 (2) 16 Mich. 79. 
 
 (3) Hodges V. The Railroad, 49 N. Y. 223 ; Wtide on Notice, § 577. 
 
 (4) Hodges r-. The Railroad, 49 N. Y. 223 ; The Eddy, 5 Wall 481. 
 
 (5) Ry. Act, sec. 234. 
 
 (6) Brown v, C. P. R., 3 Man. 496. As to passengers' luggage, see infra, 
 pp. 352 el seq. 
 
 (7) 5«/>w,pp. 295-296. 
 
 1^ nt^mg^gt- ■ 
 
Carriers. 
 
 323 
 
 to the person carried, only when tliey arc the result of negligence, 
 or want of due care or skill, or reasonable foresight and i)rudeiice 
 on the part of the carrier. This is the undoubted law in England, 
 and in all countries where the English law prevails, (i) 
 
 In France, though it has been contended with much plausi- 
 bility that the carrier's liability should a fortiori be as great with 
 regard to passengers as with regard to goods, (2) the mure reci- n 
 decisions of the Courts there are to the effect that the liability is 
 governed not by the Article of the Code Napoleon with regard 
 to the carriage of goods, but by Articles 1382 and 1383, corres- 
 ponding to Articles 1053 and 1054 of the Quebec Code. (3) And 
 this has now been authoritatively decided in this country in the 
 Supreme Court, in the case of Cluilifotix v%. C. P. Ry. Co. (4) 
 In that case the jjlaintiff was a passenger on a train which was 
 thrown off the track by the breaking of a rail, and suffered serious 
 injuries. The mere fact of tlie derailment, according to the 
 best authorities, constituted priiml facie evidence of negligence, 
 on the part of the railway company, and the onus was upon them 
 to rebut this presumption. (5) It was proved that the rails on 
 
 li 
 
 (1) Christie v . llriggs, 2 Camp. 79 ; Pym v. Great Northern Ry. Co., 
 2 1'". & F. 619 ; Stokes v. Eastern Counties Ry. Co., 2 F. »k F". 691 ; Crofts 
 V, Waterhouse, II Moore 133, 3 "ing. 319! Wright '•. Midland Ry. Co., 
 L. R., 8Ex. 137 ; Readhead v. "Midland Ry. Co., L. R., 2 (^. U. 412, 4 Q. 
 13. 379; Mcl'adden t'. N. V. Central Ry. Co., 44 N. Y. 478; Ingalls v. 
 Bilis, 9 Met. 15 ; Pi'tsburg, etc., Ry. Co. v. Thompson, 56 111. 142 ; Ilea/.le y. 
 Indianapolis, etc , Ry. Co., 76 111. 501 ; Meier v , I'enn. Ry. Co., 64 Penn. 
 225 ; Stokes v. Saltonstall, 13 Pet. 181 ; Bennct v. Uutton, 10 N. H. 481 ; 
 Indianapolis Ry. Co. v. Ilorst, 93 U . S. 291 ; Hutchinson on Carriers, § 500 ; 
 Hutchin.son v . C. P. Ry. Co., 17 O. R. 347. 
 
 (2) 31 Demolombe, Nos. 4811, 638 ; Troplong, Louage, Nos. 904-906; 2 
 Sourdat, Nos. 976-77 ; 4 Duvergier, Louage d'ouvrage, No. 317 ; Dalloz, 
 Rep. Vo. Comniissionnaire, Nos. 299, 301, 338,409, 414 ; 2 Cotelle, Legis- 
 lation des Ch. de Fer, No. 203 ; Dalloz, 55-2-86 ; S. V. 60-2-42 j Cour Imp. 
 Paris, 27 Nov. 1886 ; but see 2 Sourdat, Nos. 1058 et seg.; 2 BiSdarride, 
 Ch. de Fer, Nos. 437, 440 ; S. V. 1867-2 320. 
 
 (3) Dalloz, 1882-2-163, 1885-I-433. It must be remarked with regard to 
 this last case that it is , stated in a note that this decision of the highest 
 Court in France has l)een victoriously combated by a learned text-writer. 
 
 (4) 22 S. C. R. 721. 
 
 (5) Christie v. Griggs, 2 Camp. 79 ; Dawson t'. Man., Sheffield, etc., Ry . 
 Co., 5 L. T. N. S. 6S2 ; lUirke 7: Man., Sheffield, etc., Ry.Co., 22 L. T. N. 
 S. 442 ; Stokes v. Saltonstall, 13 I'et. 181 ; The New World f. King, 16 
 How. 469 ; G. W. Ry. Co. i\ Braid, I Moore N. S. lol ; Wood v, S. E. 
 Ry. Co., 13 R. L. 567. 
 
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 tliis particular section of ilie road had been manufactured upon 
 r.jiecificaiions prepared by the greatest engineering authority 
 with regard to the quality of rails to be used in a cold climate 
 subject to sudden changes of temperature ; that the manufivcturers 
 were of the highest reputation in England; that the rails had 
 been there put to the severest tests possible, and were of superior 
 quality in every respect ; that they had been again inspected 
 and tested on their arrival in this country, and had been laid 
 with great care; that the roadbed was in perfect order, and that 
 the piece of track itself had been inspected twice on the same day 
 previous to the accident, and for the last lime within twenty 
 minutes of the breaking of the rail. It was also shown that the 
 temperature had been very low for some days previous to the 
 accident, and that on the day of the accident it had suddenly 
 risen considerably. It was also proved that such a change of 
 temperature, resulting in a contraction and sudden expansion of 
 the metal, was the most frequent cause of the breaking of rails. 
 Judge Mathieu, in the Superior Court, in a very learned judgment, 
 held that, notwithstanding that they had clearly absolved tlicm- 
 selves from any imputation of negligence, the railway company 
 were liable for the injuries to the ulainliff under the provisions of 
 Art. 1675 of the Code with regard to carriers, and that they could 
 not be excused from such liability unless they proved tha*^ the 
 accident was caused by ca' fortuit or force majeure, and that 
 the breaking of the rail Dy a change of temperature did not 
 constitute such a case, but was a thing wiiich could have been 
 foreseen, (i) This judgment was confirmed by the Court of 
 Appeals, Judge Cross dissenting, (2) but was reversed by the 
 Supreme Court, (3) where it was held by the majority of the Court 
 (Fournier, 1., dissenting) that the railway company could only 
 be held liable as carriers of [ assengers in case of negligence, and 
 that whether the onus was upon the plaintiff or defendants, the 
 company in this case had clearly rebutted any presum|)tion of 
 negligence which might have arisen from the fact of the derail- 
 ment having occurred. The dissenting opinion in this case was 
 based on the ground that the evidence showed there was a latent 
 
 (1) M. L. R., 2 S. C. 171, 14 R. L. 149. 
 
 (2) 31 L. C.J. 26r, M. L K..3 <,). H. 324. 
 
 (3) -!>'«/>'•", P- 32.^ 
 
Carriers. 
 
 325 
 
 '• 
 
 defect in the rail, and that the liability of the company was the 
 same as that imposed upon them as carriers of goods. In the 
 Court of Appeal the opinion of tiic learned Chief Justice (Si^ A. 
 A. Dorioti) seems to have been founded upon the fact that, in 
 his view of the evidence, the rail must have been broken some 
 days before the accident, and that the company were therefore 
 guilty of negligence in not having replaced the rail. 
 
 In a still more recent Quebec case (i) the question was again 
 fully argued before the Sup.eme Court, and decided in the same 
 sense as the ChaUfoux case, with the same dissent, reversing 
 the judgments of the two courts below. (2) In that case, how- 
 ever, tiie Chief Justice of the Court of Appeals {Sir Alexander 
 Lacoste) seems "^o have based his opinion on t!ie] ground of 
 negligence on the ^.i'' of the company, as will be seen from his 
 remarks, as follows : " Le voiturier est tenu d'user de la plus 
 " grande vigilance pour protegcr ses passagers cont'^e les perils 
 ''' dii voyage *** Si, par sa negligence, il commet un voyageur 
 " a quelqu'incoavenient, 11 doit s'attendre que cehii-ci prendra 
 "les nijyens que sa discretion lui suggerera pour se tirer d'em- 
 •' barras, *^^* et le voiturier sera responsable de I'accident c[ui 
 " surviendra, a moins qu'il ne prouve que le voyageur a agi avec 
 " une imprudence inexcusable." (3) 
 
 The views thus expressed are certainly irreconcilable with the 
 doctrine as to carriers of goods, which if applied to passengers 
 would make the carrier liable without any question as to his ne- 
 gligence. 
 
 15. It was well said by the learned Chief Justice, that the carrier Degree of 
 is hela to the g"cptest vigilance in protecting his passenger;^. '^^•■^• 
 While he is lOt held to warrant or insure ':he safety of the passen- 
 ger at all events, he is bound to convey him safely, " as far as 
 human c.Tre and foresight will go." (4) While this does not 
 mean that the carrier is bound to use all the means that human 
 skill or ingenuity can devise, (5) it implies the exercise of all 
 
 (1) Quebec Central ky. Co. v. Lortie, 22 S. C. K. 336. 
 
 (2) Que., Q. B., not reported in Quebec report-;. 
 
 (3) 22 S. C. R. .It p. 345. 
 
 (4) Christie ''.Griggs, 2 Camp, 79; per Lord Mansfield. 
 
 (5) Indianapolis Ry. Co. z>. Ilorst, 93 U. S. 291 ; Ford v. Lon. ^S: South 
 Western Ry. Co., 2 !•". & F. 730. 
 
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 Thk Railway Law ok Canada. 
 
 reasonable skill and care, (i) and he is bound to use the most 
 exact diligence, and is lesponsible for negligence however slight. 
 (2) Yet, though the carrier is bound to use all well known 
 appliances and machinery, generally used, he is not bound to 
 put in practice experimental or untried machinery or methods 
 which may have been invented, especially where the cost or 
 difficulty of working them would be disproportionate to the 
 greater degree of safety to be obtained. (3) 
 
 Latent defects 16. In England many decisions have gone upon the question as 
 roadbed *^ °^ ^° whether the carrier is responsible for damages arising from 
 latent defects, the general doctrine appearing to be that as the 
 liability of the carrier of passengers depends upon his negligence 
 or otherwise, he would not bo held liable on account of an acci- 
 dent arising ""rom a latent defect in some part of the roadbed, 
 carriage or machinery which could not be perceived by the most 
 careful inspection, provided it were shown that such an inspec- 
 tion had been duly made. (4) 
 
 In Redhead v. Midland Railway Company^ Lord Blackburn 
 went so far as to say that the carrier is bound to supply not a 
 perfect vehicle, but one reasonably sufficient for the journey, and 
 that it is not enough that every reasonable effort was made lo 
 secure this result, if in fact the carriage was not sufficient. (5) 
 In the Exchequer Chamber, however, it was unanimously held 
 the contract of carriage implies no warranty as to the sufficiency 
 of the vehicle, but is only to take " due care" of the passenger 
 
 (6) 
 
 Exceptions to this doctrine, however, have been taken, one 
 where the carrier is himself the manufacturer of the carriage or 
 
 (i) Wiiglit 7 . Midland Ry. Co., L. R., 8 Ex. 137. 
 
 (z) Danif 1 V. Metropolitan Ry. Co., L, R., 3 C. V. 216, 591 ; and see Foy 
 V. Lon., Brighton & South Coast Ry. Co., 18 C. H. N. S. 225 ; and Gee v, 
 Metrojjolitan Ry. Co., L R., 8 Q. B. 161 
 
 (3) Hutchinson on CarriuTs, § 529 30. and see Steinweg c. Erie Ry. Co., 
 43 N. Y. 123 ; New Orleans ^:c. Ry. Co. r. Faler, 58 Mi-s. 911 ; Le Barron 
 r. K. B. F. Co. II Allan 312 Natchez ^:c. Ry. Co. v. Mc.Veil, 61 Miss 
 434- 
 
 (4) Redhead T. Midland Ry. Co, L. R., 2 Q. B. 412, 4 Q. B 379; 
 Wright f. Midland Ry. Co., L. R., 8 Kx 140 ; and see Francis r. Cockerell,' 
 L. R., S Q. B. 184; Exch. Cham. 501 ; and G. W. Ry. Co. \\ Braid, i 
 Moore N. S. loi ; Ingalls r. Bills, 9 Met. I; Hutchinson on i arriers, § i;o6 
 507- 
 
 (5) L. R., 2 Q. B., .at p. 412. (6) I.. R., 4 Q. B. 379. 
 
 J^ 
 
 '^W^U. 
 
Carriers. 
 
 327 
 
 the machinery. In such a case it has been generally held that 
 the carrier is responsible for such a latent defect or flaw as being 
 the result of his own negligence in construction ; but, on the 
 other hand, where the defect occurs in a portion of the carriage 
 or UKichinery which has been made by the best manufacturers 
 with due care or skill, and according to the most approved prin- 
 ciples, and subject to proper tests and inspection, it has been 
 held that the carrier is not liable for consequent damage or in- 
 jury, but is liable if the proper tests and inspection have not 
 been made by tlie nianufiic urer, where such tests would have 
 revealed the defect, eve! .hough they might be such tests as 
 could not be r.pplied by the carrier himself whose duty is to see 
 that the work is properly done by the manufacturer, (i) As it 
 was put by Hannen J,, in Francis v. Cockerel/, (2) " unless tlie 
 " presumed intention of the parties be that the passenger 
 " should, in the event of his being injured by the breach of the 
 '• manufacturer's contract, of which he has no knowledge, be 
 '' without remedy, the only way in which effect can be given to a 
 " different intention is, by supposing that the cairier is toberes- 
 " i)onsible to the passenger, and to look for his indemnity to the 
 " person whom he selected, and whose breach of contract caused 
 " the mischief. But not only do we think that, when the reasons 
 " of justice and convenience on the one side and on tlie other 
 <'are weighed, the balance inclines in favor of the plaintiff 
 " (passenger), but we are also of opinion that the weight of 
 "authority is on the plaintiff's side." 
 
 17. 'I'he leading case as to ihedegree of care and skill required insufficiency 
 from railway companies in the construction and maintenance of°'^'^"^^"'^y' 
 the roadbed, embankments, etc., is ih^iVui Greatll'tstern Naihuay 
 Company v. Braid (3), decided by the Privy Council on an 
 appeal from Ontario (4) in 1863. Their Lordships there Iield 
 that :— 
 
 (1) Redhead v. Midland, L. R., 2 Q. ]!. 412, 4 Q.B. 379 ; '-'rancis?'. Coc- 
 kerel], L. R., 5 Q. 15. 1S4, Kxch. Cham. 501 ; Grote v. Chester & Holy- 
 head Ry. Co., 2 Exch. 251 ; Crofts r. Waterhouse, 3 Bing. per Best C.J, at 
 p. 321; Brazier v. I'ol yteclinic Institution, I F. & F. per WightmanJ. 
 at p. 508; Hegeman 7'. The Ry. Co., 13 N. Y. 9 
 §§ 509-512 ; but see Nashville &, Decatur Ry. Co. ; 
 
 (2) L. R., 5 Q. B, at p. 194. 
 (^) I Moore N. S. 10 1. 
 (4) 10 U. €. C. r. M7. 
 
 Hutchinson on Cairiers, 
 . Jones, 9 Htisk. 27 
 
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 328 
 
 The Railway Law of Canada. 
 
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 carrier. 
 
 "Where an injury is alleged lo have arisen from the improper 
 construction or maintenance of a railway, the fact of one of its 
 embankments giving way will amount to prima facie evidence 
 of such insufficiency ; and this evidence may become conclusive, 
 in the absence of any proof on the part of the company to rebut 
 it." (I) 
 
 In an action against a'raihvay company for damages sustained 
 by reason of want of skill in the construction of the railway, the 
 fact that the accident was caused by a storm of such an extra- 
 ordinary nature, that no experience could have anticipated its 
 occurrence, is a circumstance that, as affecting the question of 
 negligence in the construction and maintenance of the railway, 
 ought to be left by the judge distinctly and pointedly to the 
 jury. (2) In this case, their Lordships remarked that the 
 difficulty of extracting any principle from decided cases, which 
 may be applied with certainty to questions of this description* 
 is strongly exemplified by the two judgments of the Court of 
 Exchequer in Withers v. The North Kent Raihuay Co., (3) 
 and Ruck v. Williams, (4) rendered within three weeks of each 
 other. (5) 
 
 Their Lordships, however, while disclaiming any attempt to 
 lay down any genenl rule upon the subject, said that the railway 
 company ought lo have constructed their works in such a manner 
 as to have been capable of resisting all the violence of weather 
 which, in the climate of Canada, might be expected, though 
 perhaps rarely, to occur. (6) 
 
 The rule laid down by their Lordships, however, seems broad 
 enough to cover most cases of this nature arising in this country. 
 
 18. The Crown is not jiable as a common carrier for the safety 
 and surety of passengers using its railways ; and a petition of 
 right does not lie against the Crown for injuries resulting from 
 the non-feasance or mis-feasanco, wrongs, negligence, or omis- 
 
 (1) Per Lord Chelmsford at p. 116. See also two Quebec cases to same 
 effect. Wood v. South Erst Ry. Co. ; Murray z\ South East Ry. Co., i 3 R. L. 
 567. 
 
 (2) I Moore N. S., tor. 
 
 (3) 27 L.J. N. S., Exch. 417. 
 
 (4) 27 L.J. N. S.,Exch. 357. 
 
 (5) I Moore, N. S,, per Ld. Chelmsford, at p n6. 
 
 (6) Per Ld, Cheh.i^ford, at p. 120. 
 
Carriers. 
 
 329 
 
 sions of duty of the subordinate officers or agents employed in 
 the public service on its railways, (i) 
 
 10. The degree of care due by the carrier to strangers is gov- Degree of care 
 erned by the i)rinciple that everyone is obliged, upon considera-"^ those who 
 tions of humanity and justice, to conform his conduct to the hr passengers, 
 rights of others, and, in the prosecution of his lawful business, to 
 use every reasonable precaution to avoid injuring them. (2) In a 
 Quebec case, (3) where a person, by giving a tip or bribe to tiie 
 conductor of a train not intended for the conveyance of ordinary 
 passengers, as he had reason to know, induced the conductor of 
 such train to permit him to travel on the train, contrary to the 
 regulations of the com])any, it was held that he travelled at his 
 own risk, and if while so travelling, he is injured by a collision, 
 he is not entitled to be indemnified by the company for any 
 damage to person or property sustained by him. Where the 
 defendants are negligent in the manner of running a train, they 
 are liable for the death of an express messenger, who, as suchi 
 was being carried on their train without a ticket or payment of 
 fare, but under a contract between the defendants_and the express 
 company. (4) The deceased was the servant of the express 
 company, and was not in any sense engaged in any common 
 employment with the servants of the railway company. 
 
 Where the plaintiff was a servant in the employment of a 
 contractor with defendants for keeping their road in repair, and, 
 in the course of such repairs, plaintiff was transported on the 
 defendant's cars under the management of defendant's servants, 
 and used to transport materials and convey workn^.en employed 
 by the contractor ; the defendants were held liable to plaintiff 
 for injuries negligently caused to him by the collision of the train 
 with another. (5) 
 
 (1) The Queen r. McLeod, 8 S. C. R. i. 
 
 (2) Hutchinson Carriers, Ed. 1882, p. 447. 
 
 {T,) Canadian Pacific Railway Co. 2'. Johnson, M. L R., 6Q.B 213; and 
 see Hulchinsjn v. C I'. R., 17 O. R. 347. Confirmed in appeal, i6 0nt. 
 A. R. 429. 
 
 (4) Jenn'ngs ;■. The Grand Trunk Railway, 15 Ont. A. R. 477. This case 
 was confirmed on appeal to the Privy Council on the question of dani.iges, 13 
 App. Cas. Soo. For the case of a mail carrier, see Nolton v. The Railroad 
 Corporation, 15 N. Y. 444. 
 
 (5) Torpy ". The Grand Trunk Railway Co., 20 U. C. Q. B. 446 ; but 
 S3e Sheerman t'. Toronto, Grey & Bruce Ry. Co., 34 U. C. Q. B. 451. 
 
 %} 
 
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330 
 
 Thi: Railway Law of Canada. 
 
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 Riding in un- 
 authorized 
 place. 
 
 Two Other cases, similar to tlie foregoing, were afterwards 
 decided in a contrary sense, but the facts differed sufficiently to 
 warrant a departure, without in any way disturbing the soundness 
 of the first decision. In one of these cases (i) the evidence 
 shewed that the defendants were only bound by their contract 
 with the contractors to provide an engine and platform cars for 
 carrying ballasting and materials for track-laying, to be under the 
 charge of their own conductor, engineer and fireman, the con- 
 tractors to find the brakenian; and that it was not necessary for 
 defendants to carry the workmen. There was no evidence that 
 the defendants cunsented to the use of the cars by the men, 
 further than that the conductor and engine-drivers permitted it. 
 In the other case (2) the facts were exactly similar, and it was 
 held that the defendants were not liable, for their contract was 
 to carry materials only, not passengers, and the conductor, in 
 permitting the plaintiff to get upon the train, was not acting as 
 defendant's agent. The distinction to be noted between these 
 two cases and that of Torpy v. The Grand Trunk Railway 
 Company, is, that in that case the contract was for the repairing 
 of the line, and not for construction, and the train was entirely 
 under the control of the defendants. It might, therefore, be 
 readily sujiposcd that,'owing to the nature of the contract, the 
 workmen would require to be transported from place to place by 
 the company's trains. 
 
 30. With reference to regulations prohibiting persons from 
 riding on the platforms of cars or in baggage or freight cars, 
 reference should be had to sections 2 14 to 222 of the Act. Tiie first 
 section empowers the company to make by-laws, rules or regula- 
 tions for the purpose therein mentioned, and amongst othen.ti.ose 
 for the purposes of regulating the travelling u|)on or the using or 
 working of the railway ; and by the following sec. 215, the com- 
 pany is given power to prescribe a penalty not exceeding $40 for 
 the violation of any by-law or regulation. Such by-laws and regu- 
 lations are subject, by se.. ii;, to the approval of the Governor 
 in Council, without which they have no force or effect. .Sec, 
 218 provides for the publication of sucii by-laws or regulations, 
 
 (1) Shearman v. Toronto, Grey & Bruce, 34 U. C. Q. 15. 451. 
 
 (2) Graham z\ Toronto, Grey iS: Uruce, 23 U. C. C. P. 541. 
 
 ., 
 
Carriers. 
 
 331 
 
 and requires that printed cojMes should be openly affixed and 
 kept affixed to a conspicuous part of every station belonging to 
 the company, and so as to give public notice thereof; and in the 
 Province of Quebec, it is required that they should be printed 
 both in French and P^nglish ; and when approved as above men- 
 tioned and published, they are binding upon all persons ; and 
 by sec. 221, the company is given power in cases where the 
 violation or non-observance of any by-law or regulation would be 
 attended with danger or annoyance to the company, or hindrance 
 to the company in the lawful use of the railway, to summarily 
 interfere without prejudice to the penalty. When such by-laws 
 or regulations affect the officers or servants of the company, it is 
 required by sec. 219 that a printed copy shall be given to every 
 officer, servant and employee of the company affected. It would 
 appear from consideration of sec. 249 taken in connection 
 \vith those sections referring to by-laws and regulations, tliat a 
 passenger riding upon the platform of a passenger car or in a 
 baggage or freight car, in violation of any regulation of tiie com- 
 pany, approved of by the Governor General in Council, and 
 published in the manner required by the Act, (i) would not be 
 entitled to receive compensation if injured, provided that suffi- 
 cient accommodation was provided for him in the car. Aside, 
 however, from any regulations upon the subject issued bj' the 
 railway company, and properly published, it is always competent 
 to show, in defence to an action for bodily injuries, that the party 
 injured was knowingly travelling in an unauthorized place ; and 
 if the passenger wilfully and knowingly puts himself in a place of 
 danger, and an accident results to him which would not have 
 occurred if he had been riding in the ordinary passenger car, 
 there is no doubt he > ould not recover for the consequent injury. 
 (2) To take an extreme case, we might suppose that the passen- 
 ger seated himsolt" upon the cow-catcher i iho engine; very 
 clearly he would take upon liini^elf the result of any injury result- 
 ing to him from ridmg in such an exposed position Where the 
 
 (i) I'l^Ier the Provincial K<iil>vny Acts, printed regu Lotions must tic posted 
 up at rhe time in a conspicuous i V.ice msiik- the passenger cars forming part of 
 tVn' tram. (See Appendix CXI ) 
 
 (2) Railroad Co r. Jones, 95 U. S. 431; Eaton ■ The k:iiIroad, 57 
 N. Y. 382 ; C. p. I- y. Co. c. Johns.m, M. L. R.,6Q. H 213 ; Hutchinson v. 
 C. P- Ry. Co., 17 'J. R. 347 ; i6 A. R. 429 ; Hutchinson on Canins, § 554. 
 
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 TiiK Railway I,a\v or Canada. 
 
 conductor of a freight train, contrary to tlic rules of the romp.my, 
 travelled U])on the locomotive while in charge of the train, and 
 a collision occurring, he was killed, the company were held not 
 liable, (i) 
 
 Where tiie plaintiff, who was in defendant's train on a passenger 
 ticket, went into the baggage car, where passengers frequeiitly 
 went to smoke with the permission of the conductor, and was 
 injured while in the baggage car by a collision resulting from 
 defendant's gross negligence, it was held tiiat he could recover. 
 (2) It was also held that sec. 107 Consolidated Statutes 
 Canada (reproduced in the present Railway Act) (3) did not 
 apply. Although the car was in sense a baggage car, yet the 
 compartment in which plaintiff was at the time of the accident 
 was used by the express company, the other two compartments 
 being used for the post office and the baggage. 
 
 To recover in an action for damages resulting from injuries 
 received while being carried, the injured party must be lawfully 
 upon the train ; and if he obtains admission to the train, and is 
 carried, under false representations or through fraud on his part, 
 or by the use of a ticket or pass unlawfully obtained, he cannot 
 recover. (4) ■ 
 
 Duty of Rail- ^1« I' '^^s been observed (5) that it is not the duty of carriers 
 way servants to restrain passengers from injuring themselves ; at the same time, 
 train. ^ '^^ '^ undoubtedly the duty of conductors and others in charge of 
 
 the train to see to the proper and safe placing of passengers, and 
 as far as possible to prevent them from occupying dangerous 
 positions on the train. This principle was very strongly brought 
 out in a case which came before the Quebec Court of Appeals, 
 one of a series of action? brought against the C. P. Ry. Co., 
 by a number of workmen who were being carried over the line to 
 a point where they were to obtain work. They were not carried 
 upon a regular passenger train, but upon a train made up of 
 various cars, some empty, some flat cars carrying rails, and some 
 
 (1) Stoker v. '1 he Welland Railway, 13 U. C. C. P. 386. 
 
 (2) Watson V. Northern Ry. Co., 24 U. C. Q. H. 98. 
 
 (3) Sec. 249. 
 
 (4) C. P. Ry. Co. 7: Johnson, M. L. R., 6 Q. 13. 213 ; Great Northern 
 Ry. Co. I', llariison, 10 Exch. 376 ; Hutchinson on Carriers, § 555. 
 
 (5) l5rowne on Carriers, 385. 
 
Carriers. 
 
 333 
 
 
 
 cars loaded with lumber. The Court held that the plaintiffs 
 occupied the position of jjassengers with regard to the railway 
 company, as carriers of them. The men were directed to take 
 their scats upo:i the tlat cars, but instead of doing so, climbed 
 upon the top of the lumber on several ears. Tlie lumber was 
 proved to have been staked at the side suflicicntly to hf)ld it, but 
 at a certain point on the road, where an unusual jerk or jolt 
 occurred, the lumber was thrown off through tlie breaking of 
 the stakes, which would not have occurred had it not been for 
 the superadded weigiit of the men and their baggage. The 
 company were held liable, upon the ground that the conductor 
 and the servants in charge of the train sliould have exercised 
 more supervision over the passengers, and not merely contented 
 themselves with originally directing them lo take their seats 
 upon the empty cars, but were bound to have ordered them out 
 of the dangerous position which they took up. (i) This case may 
 be of doubtful authority, as one of the learned Judges expressed 
 grave doubts ; but it serves as an illustration to show how jeal- 
 ously the courts will guard the rights of passengers in such cases. 
 There is a duty imposed also upon the railway company to 
 protect the passenger from the unlawful acts of other passengers, 
 when practicable, and within the power of the company's ser- 
 vants. (2) 
 
 33. Platforms are generally considered as convenient accom- Alighting 
 
 modation for passengers to alight at stations. As no law, however, ^''°"' trains at 
 
 ., • , , , • stations, 
 
 compels railway companies to have them erected at every station, 
 
 they are not held absolutely necessary ; but in their absence, it 
 
 seems that something else should be provided, or such care and 
 
 assistance procured as to insure the safe alighting of passengers 
 
 from the trains. (3) 
 
 So in another case, where the train arrived at the station on a 
 
 dark night, and ib.e station grounds were not lighted, and there 
 
 wa'i no i)lat(orm on which to alight, but the ground was smooth 
 
 and level, a brakem.in came with a lantern, carried out the plain- 
 
 (1) C. P. Ry. Co. V. Goyttte, M. L. K., 2 Q. 15. 370. 
 
 (2) Hutchinson on Caniers, §§ 548-552. 
 
 (■3) Duhiic, J., ill McGinney i-. C. P. Ky. Co., 7 Man. 153. P'or a point 
 involving the introduciion ofcviilence in such a case see Harvey v. C. P. R,, 
 3 Man. 266. 
 
 ■^-1 
 
334 
 
 TiiK Railway Law ok Canada. 
 
 m 
 
 I ; lit > 
 1 » I 
 
 .'I 
 
 "f" 
 
 \ 
 
 ii 
 
 tiff's valise and assisted her to alight. 'I'he lowest step of the car- 
 riage was 26 inches from the ground. Before assisting her to alight, 
 the brakeman placed the lantern on the ground where it cast a 
 light 20 or 30 feet around. In alighting the plaintiff injured her 
 knee, and was compelled in consecpience to abandon her employ- 
 ment as cook. It appeared at the trial that the plaintiff's knee 
 iiad been weak for some time previously, and that she had been 
 affected with synovitis in a sub-acute form. She did not tell the 
 brakeman of this weakness of the knee. In an action brought 
 for this injury it was held that the defendants were not guilty of 
 negligence, and that if there was any negligence at all it was 
 attributable to the plaintiff in not telling the brakeman of her 
 feeble and delicate knee, (i) 
 
 But where, after calling out the name of a station, a railway 
 train was slowed up on approaching and passing it, but was not 
 brought to a full stop, and the plaintiff who had purchased a 
 ticket for that station received injuries on alighting there, it was 
 held, that there was evidence of an invitation to alight, and that 
 it was for the jury to say whether she had acted in a reasonably 
 prudent and careful manner in availing herself of it. (2) 
 
 In England the doctrine is that if the servants of the company 
 ask passengers to alight on arrival of a train at a station, the 
 company is liable for injuries sustained in alighting, owing to 
 defective accommodation of the place ; but what amounts to an 
 invitation to alight depends upon the surrounding facts and 
 circumstances. And it has been held that mere stoppage of the 
 train and calling out the name of the station is not such an 
 invitation ; (3) but, coupled with a lengthened stoppage, would 
 amount to an invitation, (4) as may a long stoppage alone. (5) 
 
 In Bridges v. North London Ry. Co., (6) in the House of 
 
 (i) McGinney v. The Canadian Pac. Ry, Co., 7 Man. 151 ; and see 
 Crafter v. Tlie Metropolitan Co., L. U., I C. 1'. 300 ; MacUonald r. 
 Mayor, etc., of St. John, 25 N.B. 318 ; Siner & wife 11. The Great West- 
 ern Ky. Co , L. R., 3 Ex. 150 ; Harrold t. The Great Western Ry. Co., F4 
 L . N. S. 440 ; Cornman i*. The Eastern Counties Ry. Co., 4 H. & 
 N. 781. 
 
 (2) Kdyar &. wife v. 'l"ne Noilhern Ry. Co., II Ont. App. 452, 
 
 (3) Lewis V. l,on , Chat. 6t Dover Ky. Co., L. R., 9 Q. 15. 66. 
 
 (4) Biid^es V. N. Lon. Ry. Co., L. K., 7 II. L. 213 ; Robson y. N. E, 
 Ry. Co., 2 L. R., 2 Q. 1). U. 85. 
 
 (5) Rose V. N. E. Ry. Co., L. R. 2 Ex. D. 248. 
 
 (6) Bridges r. Directors, etc., of North London Ry. Co., L. R., 7 H. L. 
 
 211. 
 
 -a. 
 
. 
 
 Cakrikks. 
 
 335 
 
 Lords, it was held that the case was oni; for tlie consideration of 
 the jury. It was laid down in this case as a test for what is or 
 is not for the jury, tiiat there is in every case of this kind a 
 l)reliminary question which is one of law, namely, whether tlierc 
 is any evidence on which the jury could properly find the question 
 for the party on whom the onus of proof lies. If there is not, 
 the Judge ought to withdraw the question from the jury, iiid 
 direct a non suit if tiie onus is on the plaintiff, or direct a 
 verdict for the plaintiff if tiie onus is on the defendant, (i) 
 and it follows from this that although the question of negli- 
 gence is usually one of pure fact, and therefore for the jury, it is 
 the duty of the judge to keep in view a distinct legal definition 
 of negligence as applicable to the particular case ; and if the facts 
 proved by the plaintiff do not, whatever view can be reasonably 
 taken from them, or inference drawn from them by the jurors, 
 present an hypothesis which conies within that legal definition, 
 then to withdraw them from their consideration. (2) In a 
 Quebec case, (3) it was decided tiiat where a jjassenger buys a 
 ticket for a certain station, and the company collect it, they are 
 bound to put him off at that station, or be held liable in damages j 
 but where the company have failed to so stoj), and the passenger 
 jumps from the train while it is in motion, the company will not 
 beheld liable for injuries received by the passenger, they being 
 solely the result of his own imprudence. 
 
 A railway company is bound to provide for passengers safe 
 means of ingress to and egress from its stations. And where a 
 passenger, arriving at a station, at night, walked along a platforni 
 not intended for, but frequently used as, a means of exit, but 
 which was not in any way guarded, and after leaving the platform 
 fell into an excavation in the company's grounds, and was injured, 
 the company were held liable. (4) 
 
 The company is also bound to keep its station and premises in 
 proper repair, so as to prevent injuries to passengers ; and a 
 
 (1) Per Pollock B. in Bridges v. Directors, etc., of Nortii London Ry. Co , 
 L. R., 7 H. L. at pp. 221-222, quoting from Ryder v. Wombwell, L. K., 4 
 Ex. 32, 38. 
 
 (2) Ibid. 
 
 (3) The Central Vermont Ry. Co. v. Lareau, M. L. R., 2 Q. B, 258, 
 reversing M. L. R., i S. C. 433. 
 
 (4) Oldwright i;. G. T, Ry. Co., 22 On. A. R. 286. 
 
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 336 
 
 The Railway Law op Canada. 
 
 passenger arriving at the station continues to be a passenger for 
 a reasonable time until he has left their premises. So, too, a 
 ])erson bona fide at the station, for tlie purpose of taking passage 
 upon a train, is a passenger, although lie has not in fact purchased 
 his ticket, (i) Tile com;jany is bound, as tc its passengers or 
 persons upon its premises " by invitation," to see to it that its 
 l)reniises are in such a condition, in all respects, that a person, by 
 the exercise of ordinary care, can come to and leave them without 
 daiigor ; and this extends 'o |)roper and suitable approaches, 
 l)latforms, steps or other devices, as well as suitable lights. (2) 
 As illustrating the obligation of the railway company in this 
 resjiect, and the care to be exercised by the i)assenger, the 
 following case may be cited. Tiie approach to a station of the 
 Grand Trunk Railway from tiie highway was by a planked walk 
 crossing several tracks, and a train stopi)ing at the station 
 sometimes overlapped this walk, making it necessary to ])ass 
 around the rear car to reach the platform. J., intending to 
 lake a train at this station before daylight, went along the 
 walk as his train was coming in, and seeing, apparently, that it 
 would overlap, started to go around the rear, when he was struck 
 by a shunting engine, and killed. It was the duty of this 
 shunting engine to assist in moving the train on a ferry, and H 
 came down the adjoining track for that purpose before the train 
 had stopped. Its headlight was burning brightly and the bell 
 was kept ringing. There was room between the two tracks for a 
 person to stand in safety. It was held that the company neglected 
 no duty which it owed to the deceased as one of the public. 
 (3) And per Strong & Patterson, J. J., that while the public 
 were invited to use the planked walk to reach the station, and 
 also to use the company's premises, when necesLuryjto pass around 
 a train covering the walk, there was nojimplied warranty that the 
 traflic of the road should not proceed in the ordinary way, and 
 the company was under no ol)ligatioii to provide special safe- 
 guards for persons attempting to pass around a train in motion. 
 
 (1) Wood, R.iihvav, 116,^; (Iran.l Trunk Railway y. iioulanger, 17th 
 March, 1886 (ijuc). (.-assirs Diy., p. 734. 
 
 (2) Woud, Railw.iys, 1 164. 
 
 (3) Jones r. The (Jrand 'I'runk Ry. Co., 18 S. C. R. 696, aifirming Ct. of 
 Appeals, Ontario, 16 Out. App. 37 ; see also Curwin u. The Windsor & 
 Annapolis Ry. Co., 3 (jeld & Oxley 493. 
 
 
 Ek 
 
I 
 
 Cakriers. 
 
 337 
 
 23. Wliile generally an attempt to get on board a train in mo- l^oarding the 
 liuii will be treated as evidence of negligence on the part of the 
 passenger, yet instances may exist where it is not so, and the pas- 
 senger is justified ill making the attempt; but in such cases 
 liability arises, if at all, because of the fact that the danger was 
 not obviou.!, or because the agents of the company directed the 
 passengers to make the attempt. JJut even where the ajjent.s of 
 the company direct the passenger to do so, the company is not 
 liable, if it was gross negligence on the part of the passenger to 
 make the attempt in^view of all the circumstances; and whether 
 it was so or not depends upon the fact whether, under the cir- 
 cumsta .:es, the act was obviously dangerous, and that is a 
 question for the jury, (i) A passenger, in trying to catch a 
 train, ran up and seized hold of the iron railings of one of the 
 cars, and holding thereon, ran along the platform at the speed of 
 the train with his face towards tlie car. and, after the train had 
 moved a certain distance, in attempting to jump thereon, he 
 struck against a bagg.ige truck which was close to the platform, 
 and which had been used in taking baggage to the baggage car, 
 and was left for a couple of minutes to bring back the baggage 
 therefrom. By the concussion lie was thrown under the wheels 
 of the train, and received an injury. It was held that, under the 
 circumstances of the case, the leaving of the truck on the plat- 
 form did not constitute negligence cmi the part of the defendants; 
 but even if it did, the plaintiff, in attempting to get on the train, 
 as he did, was guilty cf sucli contributory negligence as would 
 prevent his recovering. (2) 
 
 An important case on this |' jint was that of Hall v. McFaddeu, 
 decided in the Suiireme Court of Canad;i. (3) Plaintiff, having 
 a first-class ticket from Sussex to Penobsquis by the Inlertolonial 
 Railway, intended going to Penobscjuis (her home) by the mixed 
 freight and passenger train, which was due to leave Sussex at 
 1.47 p.m. The train on that day was an unusually long one, and 
 when the passenger cars were brought to the platform, the engine 
 was across the public highway. When the train came in it was 
 brought up so that the forward part of the first-class car was 
 
 (1) Wood Klys., p. 1154 ; Curry v. C. P. K., 17 O. R. 65. 
 
 (2) Hald-in v. Tlie Great Western Ky. Co., 30 U. C. C. I'. 89. 
 (j) 1st May, 1883. Cassel's Dig,, p. 724, 
 
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 Ml 
 
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 338 
 
 The Railway Lav/ of Canada. 
 
 opposite the platform. It was then about ten minutes after the 
 adveriiscd time of departure. Plaintiff was standing on the plat- 
 form wlien the train came in, but did not then get on board. 
 The conductor of the train (the defendant) got off the train and 
 went to a hotel for dinner. While he was absent the train was, 
 without his knowledge, backed down, so that only tiie second- 
 class car remained opposite the platform. The jury found that 
 the first-class car did not remain at the i)lalforni long enough to 
 enable i)lainliff to gel on board. The defendant, after finishing 
 his dinner, came over hastily (being behind time and, therefore, 
 in somewhat of a hurry), called "all aboard," glanced down the 
 platform, saw no person attempting to get on board, crossed the 
 train between two box cars to signal the driver to start (it being 
 necessary to cross the train in order to be seen by the driver, 
 owing to a curve in the track), and almost immediately tiie train 
 started. The 124th regulation for government of the Intercolonial 
 Railway prescribes that conductors must not start the train while 
 passengers are getting on board, and that they should stand at 
 the front end of the first passenger car when giving the signal to 
 the driver to start, which was not done in this instance. Plaintiff 
 and a lady friend, 1''., who was going by the same train, were 
 standing on the platform, and when they heard the tall " all 
 aboard," they went towards the car as quickly as they could. 
 F. got on all right, but plaintiff, who had a jjaper box in her 
 hand, caught the hand-rail of the car, when she slipped, owing to 
 the motion of the train, and was seriously injured. The jury 
 found that the call " all aboard " was a notice to passengers to 
 get on board. 
 
 The SupremeCourt of New JJrunswick (i) held, that, although 
 the plaintiff's contract was with the Crown, the defendant owed 
 to her, as a passenger, a duty to exercise reasonable care, and 
 tlial there was ample evidence ot negligence for the jury. On 
 appeal to the .Supreme Court of Canada, it was held (2) that the 
 judgment of the Court below should be aftirmed. It was held 
 by Ritchie, C. J., that there was no obligation on the part of the 
 passengers to go on board the train until it was ready to start, or 
 
 (1) 19 N. 15. 340, .and 21 X. H. 586. 
 
 (2) '1 ascliereau r. Gwyniiu, J. J., disseiuing. 
 
Carkikrs. 
 
 339 
 
 until invited to do so by tiie intimation from the conductor 
 " all aboard." And by Henry, J., that there was no salisf;ictory 
 proof of contributory negligence on the part of the plaintiff. The 
 package she carried was a light one, and such as is often carried 
 by i>assengers with the knowledge and sanction of railway con- 
 ductors and managers, and a tacit license is therefore given to 
 
 passengers to carry such with them in the cars 
 
 After the nolinration "all aboard" is given by a conductor, it is 
 his duty to wail a reasonable time for passengers to get their 
 places. 
 
 ti4. The railway company is bound to use every reasonable Dclav in 
 effort to insure ])un(-tuality in the starting and arrival f)f jts *•'*'' '•''Ke"'' 
 trains, and any unreasonai)le delay will render the company liable 
 in damages to the ])asscnger, to be measured as a rule by the 
 inconvenience he thereby suffers, and any additional cxi)cnses 
 he incurs, within reason, to reach his destination, (i) 
 
 Tlie ruling casein I'-ngland is that of Z*- /M;//!,-//^ v. 'f/it- Lo':i/oii 
 ((• Aorth ll^istcni Rai/icuiy Company. (2) There the plaintiff 
 contracted in Liverpool for a journey to .Scarborough via I-ccds, 
 having taken a ticket expressed to be subject to conditions in 
 the time tables, which were {inter alia) : " ICvery attention will 
 be paid to ensure punctuality as fir as is practicable ; but the 
 company do not undertake tliat the trains shall start orarriveat 
 the time specified in the bills, nor will they be accountable for 
 any loss, inconvenience, or injury wliich may arise from delays 
 or detention." According to the time bills the train which left 
 Liverpool at 2 o'clock was to arrive at Leeds at 5 o'clock, and 
 a train was to leave Leeds at 5.20, arriving at Scarborough 
 7.30. The trains between Leeds and Scarborough were not 
 unacr control of the contracting company. The train, being 
 delayed at St. Helen's Junction and Manchester, arrived at 
 Leeds at 5.27, after the 5.20 train from Scarborough had left. 
 There was another train at 8 p.m. which would arrive at Scar- 
 borough at 10 p. ni. 
 
 (1) llobtw r. 1.011. ^c N. W. Ry. (.lo., I,. R, 10 Q. 15. iii, 44 I,. J. Q. 
 15. 49 : l.e ISlanchi; i). l.oii. .S: N. W. Ky. Co., I,. K., i C. P. 1). 286, 45 I,. 
 J. C. r. 521 ; Hamlin r. CJreat Nortiiern Uy. Co., I II. iS: N. 408, 26 I,. J. 
 Ex. 20. 
 
 (2) I.. U., I C. I'. I). 286, 45 L.J. C. I'. 521 (C. A. 1876). 
 
 
340 
 
 The Railway Law ok ('anada. 
 
 'I'he jjlaintiff ordered a special train to Scarborough at a cost 
 of £i i.ics , and a 'ived there at about 8.45. He brought an 
 action in the County Court to recover llie .£ii.ios. The judge 
 of the County Court gave judgment for the amount claimed. 
 
 'I'his judgment was affirmed by a Divisional Court of the Com- 
 mon Pleas division, who held, first : that the facts and documents 
 which formed the contract were the taking and granting of the 
 ticket, the jtime table and the conditions; secondly, that the 
 defendants thereby contracted to make every reasonable effort to 
 secure punctuality ; thirdly, that although a delay of a few minutes 
 would not be evidence of a want of reasonable effort, yet a long 
 unusual delay, such as had cccuried at St. Helen's Junction and 
 at Manchester, was evidence calling upon the company to show 
 that it arose in sjjile of such reasonable effort, and that there was 
 evidence that such delay was the cause of the plaintifTs missing 
 the corresponding train at Leeds ; fourthly, that the cost of the 
 special train was recoverable as damages. 
 
 Un ajjpcal, the judgment of the court below was, on the first 
 point, affirmed; on the second, affirmed (dissentiente, CIcasby, 
 B.) ;on the third, affirmed (dissentiente, Baggallay, J. A.) ; and on 
 the fourth, reversed. 
 
 In JJcnlon v. Cr(iit Nortlurn Kailu< • Company, (i) it was 
 held that the publication by the defendant's company in their 
 time tables of a train on another line was a promise by the 
 defendants to a i)erson travelling by their line, and intending to 
 go on, that there was such a train as advertised. In Great North- 
 cri' Raihcay Company v. Jfawcroft^ (2) the plaintiff bought a 
 ticket which read : " Barnsiey to London and back, excursion 
 " ticket. To return by the trains advertised for that purpose on 
 " any day not beyond 14 days from tlu' dale hereof." The plain- 
 tiff presented himself on a Saturday within the 14 days at the 
 London station in time for the morning return train. He was 
 crowded out, and the defendants refused to let him proceed by 
 an ordinary train. He had to wait till the evening train which 
 took him to Doncasler, from which there was no other service to 
 Barnsiey on that day. The plaintiff hired a carriage from Don- 
 
 (1) (1856) s Y.\. vS: 111. S60, 25 I.. I. Q.li. 129. 
 
 (2) (185^) 21 L. J. (J. 15. 178. 
 
 i 
 
Carkil:rs. 
 
 341 
 
 caster to Barnsley, and was hcl 1 entitled to recover the expenses 
 incurred. 
 
 In Bnckimsfcr w Great F.astern Railuiay Company, (i) tlic 
 plaintiff recovered llic cost of a special irain and damages for loss 
 of market under llie foliowinj,' condilicns : He was a miller, and 
 held a season ticket between Framlington and London, and used 
 to go lo the Mark Lane corn market twice a week hy a train 
 which departed at 6.45 a.m., and reached London at 10.40, in 
 time for him lo catch the market at 11. On th-' oci-asion in 
 question, the train, througli negligence of the company's servants, 
 was not ready to leave Kramlington .uiywlicre near the time 
 advertised. He obtained n special train, i)iit nevertheless missed 
 the market. 
 
 Inlutz't'iu/J \. Midland Railway Company, (2) it was held 
 that where a passenger fails to catdi a train on the line of a 
 company by reason of the ordiniry train being delayed through 
 no fault of the company, he is not entitled to have a special. 
 In tiiat case flood v. as tlie cause of the delay In Tliompionw 
 Midland Rail'ioay Company, (3) a similar decision was given 
 where the delay arose from the negligence of other comjjanies. 
 
 The generi.! rule governing such cases would a|)pear to be best 
 stated by Brett, J., (4) glossing the language used by Alderson, 15., 
 in JIanitin v. Great Northern Rail-n.<ay Company, (5) as folloA's : 
 " We think it may properly be said that if the party bound to 
 " perform a contract does not i)erform it, the other party may 
 " do so for him as reasonably near as may bj, and charge him 
 " fur the reasonable expense incurred in so doing;" — and by 
 Blackburn, J., in Hobbs v. London <& Siutli Western Raihvay 
 Company, (6) who there said : " Where there is a contract to 
 <' supply a thing, and it is not supplied, the damriges are the 
 " difference between that whicii ought to have been supplied, 
 " and that which you have to pay for, if it be equally good ; or 
 " if the thing is not obtainable, the damages would be the differ- 
 " ence between the thing you ought to have had and the best 
 
 (I) (1H70) 23 L. T. 471. (2) (1876) 34 I,. T. 771. 
 
 (3) ("S75) 34 »-'•'■ 34. 
 
 (4) In Le IJIanche c. Lon. k N.W. Uy. Co.. I,. R., i C. P. \). .nt pp. 302-3. 
 
 (5) I H. it N. 408, 2O L. J. lix. 20. 
 
 (6) L. R., 10 (J. H.at pp, 119-20. 
 
 Mf 
 
 ) 'it 
 
 ii 
 
!:ni 
 
 liability. 
 
 342 
 
 TnK Railway Law ok Canada. 
 
 " Hubslitutc you can gel upon the occasion for the purpose." 
 ***** Now, as 1 have said, what llie passenger is entitled to 
 •' recover is the diflerence between what he ought to have had 
 " and what he did iiave ; and when he is not able to get a con- 
 " veyance at all, but has to make the journey on foot, I don't 
 " see how you can have a better rule than that which tiie learned 
 " judge gave to the jury here, namely, that the jury were lo see 
 " what was the inconvenience to the plaintilTs in having to walk, 
 •' as they could not get a carriage." 
 
 'I'he learned judge, however, held that no damages could be 
 allowed on acrount of the female plainiifT having caught cold 
 while walking home, as being loo remote, (i) 
 
 *^li, 'I'liere is no doubt that in regard to regular j)assengers the 
 company cannot relieve itself by any notice, condition or declara- 
 tion, if the damage arises from any negligence or omission of the 
 comjMny or of its servants, (a) lUit the question arises as to 
 the company's liability, and its power to limit the same, towaids 
 those who are travelling under special cijutract, such as on a free 
 l)ass or at reduced rates, or in some special capacity on the cars. 
 In a somewhat early Ontario case, (3) it was held that where a 
 jjcrson was travelling on a free pass, ujion the condition that he 
 should assume the risk of accidents and damage, his heirs could 
 not recover damages for his bemg killed by the giving way of a 
 bridge over which he was passing in the train. (4) There is 
 no doubt that the general tenor of the Knglish law is to the same 
 effect, (5) but it has often been held otherwise in the United 
 States. (6) 
 
 In />//^ v. Giiiit Northern Rail-icay Company, (7) Pallos, 
 C. 15., wished it to be observed that his judgment was based upon 
 the fact that the person who actually travelled (as a drover) was 
 
 (1) Hut see Toronto Ry. Co. f. Giinsle<l, 24 S. C. K. 570 ; aiulTlioniiison, 
 (Jaiticis <;f I'.-isscnijers, 566. 
 
 (2) StC. 246, Slll).•^t•C. 3. 
 
 icrland c. The Cfe.it Westcri 
 
 (.0 
 
 Ry. 
 
 409. 
 
 (4) J»ul see Woodiutr r. G. W. Ry. Co., 18 U. C. <J. H. 420. 
 
 (5) McCawlcy ». lurness Ry. Co., L. R., 8 (J. H. 57 ; DulTiJ. Tlie Great 
 Norlhern Ry. Co , 4 Ir. Law. Rep. 178 ; Gallin c. London & North Western 
 Ry. Co., L. R., 10 <J. H. 212 ; Hall i-. North Lantern Ry. Co., L. R., 10 (^. 
 
 U- 437- 
 
 (6) Kedfield, VoL 2, p. 23^, note c. Ihuciiinson, § 583F4. 
 
 (7) 4 Ir. Law Rep. 178. 
 
Cakkiers. 
 
 34:> 
 
 the person who signed the contract, (i) Had he l)cen a 
 (liffi-TciU person, the connection of llie drover witli the contract 
 might have involved a question of fact, and ll)is niij^hi li.ive been 
 for the jury. This passa^jc from the judgment of the learned 
 Chief Haron would seem to tlirow doubt upon the holding in an 
 Ontario case \^2) involving this point. In this case C. 6: 
 Co., news dealers, made a contract with the defei'.dant com- 
 pany whereby they should carry C. & Co., their news boys and 
 agents on their trains, the company t ) bo exempted from all 
 liability for any injury to the persons or property of said C. 
 (N: Co., their news boys and agents, wlietlier occasioned by 
 defend mt's negligence or otiierwise. .Mexander. one of the news 
 boys, while lawfully standing upon the platform of one of the 
 comi).iiiy's stations, was struck by a piece of limber, which had 
 bL*en loaded so carelessly as to project over the platform. As the 
 result of his injuries, he died. It was held tluit the administrator 
 could not recover, i'hatdece.ised must be taken to havj accepted 
 the terms on which the com[)any agreed to carry him, whether 
 aware of its terms or not. Draper, C. J., of ajjpcal, howcser, dis- 
 sented, and, wc think, rightly. 
 
 It is to be noticed in this case that the fact of the injury occur- 
 ring off the train would not alter the company's liability. Where 
 the company can exempt themselves from liability, such exemption 
 extends not only during the actual transit on the rnilway, but 
 whilst the passenger is upon any part of the railway company's 
 premises. (3) 
 
 *i(im Mere notices to the passenger are no more effectual for the Notice of 
 purpose of limiting the liability of the carrier of passengers than ''"''.'i^''''" °^ 
 of the carrier of goods ; and where a docinnent is complete on 
 the face of it, but having on the back of it something which has 
 not been brought to the knowledge of a contracting party, he 
 cannot be held to have assented to that which he has not seen 
 and of which he knows nothing. (4) The law as to notice of 
 
 (1) Hut s.e The Rnilnmd r. Lockwoul, 17 WaP. 357. 
 
 (2) Alex.iniler r. Toronto & .Nioissint' Ky. Co., ,',3 L'. C. Q, H. 474 ; 35 
 U. C. <J. B. 453- 
 
 (3) Gallin v. Tlie London iS: .Vortiiwestern Ky. Co., L. K., 10 o. II. 
 
 312. 
 
 (4) Henderson ». Stevenson, 2 Sc. .\y>p. 470 ; U.Ue «. C. I'. Ky. Co., iS 
 S. C. K. 697. 
 
 1- 
 
 I" 
 
 i 'iil 
 
a If 
 
 n 
 
 I If 
 
 
 
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 344 
 
 TiiK Raii.wav I -aw ok Canada. 
 
 condilions on passcii.v'er tickets lias now bcL-n si tilcil l)y the 
 Mouse of Lords in Ricliaidson iV Co. ?'. Rownticc ( i) wlicro 
 it was held tiiat if in llic opinion of llie jury a passenger receiving 
 a ticket from a sliipjiing t:onii)any does not see or know thai 
 there are any conditirnis thereon, he is not liound hy tlie condi- 
 tions. And if he knew there was writing on the ticket, it is a 
 question of fact wliether lie had reasonable nclice tliat the 
 writing contained conditions, and he is or is noi bound thereby 
 according as he has had sich notice or not. 
 
 Checks. *'iT' The next question to be considered is the liability of a 
 
 railway company for baggage carried for ])assengers, either check- 
 ed or unchecked. In the first place, as to checked baggage, it is 
 provided by sec. 250 of the Act that checks shall be aftlxed to every 
 parcel of baggage having a handle, loop or fixture of any kind, 
 delivered to any agent or servant of the comjjany for carriage, 
 and a duplicate of the check must be given to the passen:;er. 
 ]5y sec. 251, if the check k refused, the company is liable to the 
 passenger for a penalty of $8.00, recoverable in a civil action, and 
 no fare can be collected from the passenger; and if he has paid 
 his fare, it must be refunded. 13y sec. 252, any |).issenger who 
 produces such a check can himself be a witness in any action c 
 suit brought by him to jirove the value of his baggage not 
 delivered. Under the Civil Code of Quebec (2) the passenger 
 is entitled to prove the contents and value of any piece of baggage 
 delivered by him to a carrier, and lost or damaged. 
 
 Personal ^8. But the liability of the carrier in such cases is conhned to 
 
 baggage. personal baggage, as it is called, and he is not liable for arti<:les 
 of extraordinary value, such as large sums of money, gold, silver, 
 jewels, precious stones, or articles of unusual value, unless the 
 contents of the trunk or package and their value have been 
 declared to the carrier before delivery. (3) Ajjplying these 
 
 (1) 6 K. 95 (l8ij4), P.nrker v. S. E. Kv., I.. K., 2 C. 1'. D. 416 aiiproved. 
 
 (2) C. C. 1677. 
 
 (3) C. C. 1677 i and see Cadwallader r. G. T. Ky. Co., 9 I.. C. K. 169 ; 
 and Kol)son r. llooker, 3 1,. C. J. S6 ; IJiulv r. G. T. Ry. Co., 32 U. C. 
 Q. H.66; MoCTtTiey f. C. P. Ky. Co., i Man. 350 ; Macrow v. G. W. 
 Ry. Co., L. K.. 6 Q- '*• 612 ; Mytion r Midland Ky. Co., 28 L. J. Lx. 585 j 
 Phelps i: Lon. & N. W. Ky. Co., 34 L. J. C. P. 259 ; Cahill r. Lon. & N. 
 W. Ky. Co., 30 L. J.C. P. 289, 31 L.J.C. P. 271. 
 
 ^.} 
 
Cakkikrs. 
 
 34S 
 
 I 
 
 principle-!, it is clear, in tlie fir>l pl.icc. that llie compmy will nut 
 he held linhlc for loss or injury o ciiriing lo any kind of baj^ijajc 
 wliicli was not personal to tlic traveller, — such, for instance, as 
 merchandise contained in a cliecked trunk. This is undoubted, 
 and the doctrine has been extended to the case of commi-icial 
 travell'jrs carrying samples of merciiandise in a trunk checked 
 as ordinary bagj^age. I'liis li is been decided in (Jueber in a 
 case of Cttnadiitn Navi iiition Co. v. //,tju\i, (i) and followed in 
 a late case of ritckardv. C. P. R. Co. (2) In the latter rase, 
 the i)laintifr was a commercial traveller, carrying samples for his 
 firm, and ne checked his tnuik containing these saniplcs as 
 ordinary baggage. The trunk was destroyed by lire in an 
 accident whicii occurred on the railway, and, in an action to 
 recover, it was h.-ld that the conipiny were not luble in such a 
 case, as the articles contained in the trunk were not personal 
 baggage. It was strongly contended in that case that the com- 
 j)any were liable, because the trunk was of a i)articu!ar character 
 known as a comm.'rcial traveller's trunk, which would necessarily 
 call the attention of liie agent or baggage master to the nature of 
 its contents, and that having been checked with such knowledge, 
 there was an implied contract on the part of the railw.iy com- 
 pany to carry it as such. This, however, was held to be of no 
 avail, sucli implied contract not being binding upon the company, 
 they being only liable where an express declaration of the con- 
 tents and value of the articles was made before the delivery. (3) 
 If, iiowever, actual knowledge can be proved on the part of the 
 baggage master or other servant of the railway of the nature of 
 the goods carried, the fact of his receiving and checking it would 
 make the company resp )nsible in case of loss or damage. (4) 
 ])Ut, 10 render the company responsible, it is necessary lo i)Osi- 
 tively show actual knowledge thai the articles carried are mer- 
 chandise. It is not enough lo show, as in the case of Piicka>if v. 
 C, P. R. Co., (5) that there was sufticient apparent upon 
 the article itself to have directed attention lo it, -nd to have 
 
 (1) 19 L. C. J. 269, M. I, K., c S. C. 64. 
 
 (2) M. L. R 5 S. C. 64. 
 
 (3) As to s.nmples of nicrchaiKlis; cariied under special condiiions, see 
 Hixon /•. Rich, it Ont. Nav. Co., iS S, t'. K. 704. 
 
 (4) Gicat Noitliem Uy. Co. c. Slieplieril, 21 L. J. li.\. 286. 
 
 (5) UH siifint. 
 
TTTM 
 
 i 
 
 il M 
 
 i.rti 
 ' 'II 
 
 5 ;i 
 
 346 
 
 The Kaii.wav Law ok Canada. 
 
 caused the <:oinpany's cmployoL-s to have made inquiries, (i) 
 This has been held in Kngland in the case of Ca/iili v. Loni/on 
 atiif JVorthii'inteiit Ky. Co. (2) Tlierc, the jvlaiiuifT gave to a 
 raihvay porter a box labelled "glass," and it was placed in the 
 luggage van. It w.is lost, and the plaintiff sued to recover the 
 value. The box contained merchandise only, and no personal 
 baggage. It was contended by the plaintiff that the fact of the 
 box being labelled ''glass" was enough to indicate to the com- 
 pany's servants that it contained merchaiulise, and that as they 
 accepted il as such without further charge, they were liable. 'I'he 
 action, iiowever, was dismissed, and the remarks of Chief Justice 
 liarlc, in giving judgment in the Court of Common I'leas, are 
 most apposite. " It Svienis to me," hs said, " that it would l)e 
 intioducing a rule most pernicious to public convenience, that a 
 raihvay company, to avoid being fixed with liability which, 
 according to their regulations, they do not intend to take, should 
 be bound to make inquiries where a package is brought which 
 a[)pears likely to contain merchandise, and, if they do not make 
 those inquiries, they should be taken to know the contents of 
 such package." 
 
 As to what would constitute personal baggage apart from 
 merchandise, it may be laid down as a safe rule that all things 
 which are general and customary for a passenger to carry for his 
 use, and which are suited to his condition in life, would be 
 regarded as personal baggage. Whatever a passenger takes with 
 him for his personal use and convenience, and that is to be 
 judged in relation to his habits or wants as a member of the 
 particular class of society to which he belongs, either witjj a view 
 to present necessities or any purpose for which the journey is 
 undertaken, is to be regarded as personal baggage. (3) 
 
 In Quebec a carrier has been held responsible for the loss of 
 jewellery and such like articles contained in the trunk of a lady 
 passenger, and which had been lost during the voyage, they 
 being proved to be suitable to her condition in life, though of 
 considerable value. (4) 
 
 (1) Lee V. G. T. Ky. Co., 36 U. C. i). H. 350. 
 
 (2) 30 I,. J. C. v. 289, 31 1.. J. C. v. 27r, 13 C B. N. S. 818. 
 
 (3) Maciow r. G. VV. Ry. Co., L. R., 6Q. B. 612 ; Phelps r. Lon. & N. 
 W. Ky. Co., 34 L. J. C. 1\ 259 ; Hudston t". Midland Rv. Co., 38 L. J. (). U. 
 213 ; Btuly f. Ci. T. Ky. Co., 32 U. C. Q. B. 66. 
 
 (4) Woodward v. Allan, i L. N. 458. 
 
CAKKItRS. 
 
 347 
 
 In Ontario, wl.crc the passenger, a carpenter by trade, liad 
 in his box, which was lost, a concertina, a ritlc, a revolver, tuo 
 ^0/1/ chains, a /ockft, tuH> go/J n/i^s, a >.:,;■>■ pfitcU ca.u', a 
 sewing machine, and a (inantity of tools of his irade, it was held 
 that the articles in italics w.ro p.-rsonal baggage for wliich the 
 carrier was res|)onsible, but thil the otiv 1 > were no' ; — If^ihon,/., 
 l\owever, dissenting as to the concertina, (i) In the United 
 States, however, it has been held that a set of tools of reason, 
 able wortl) may be considered part of the personal baggage of 
 a carpenter or mechanic. (2) 
 
 On the other hand, it has been held in England that a quantity 
 of bedding carried in a trunk, consisting of si.K pairs of sheets 
 and an ecjual number of blankets and (piilts, was m t person.il 
 luggage. This was in the case of J/<^ /<>;.' v. Great ll^rs/iu/ A'y. 
 Co. (3) There the ijiainliff ha'lgiven u\> his residence in Canada, 
 and these articles were iniendcd for the use of his householil 
 when he should have piovided himself with a home in Lonlon. 
 The trunk was lost, and he took action against the railway com- 
 pany for the value of these articles. Chief Justice Cockbuin said 
 in that case that " the term ' ordinary luggage,' being confined 
 " to what is personal to the passenger and carried for his use and 
 " convenience, it follows tiuit what is carried for the purjjose of 
 "business, such as merchandise or the like, or lor larger or 
 •' ulterior purposes, such as articles of furniture or household 
 " goods, would not come within the descripiion of ordinary 
 " luggage, unless accepted as such by the carrier. Now, though 
 " we are far from saying that a pair of sheets or the like, taken by 
 " a passenger for his own use on a journey, wili not be consi- 
 " dered as personal luggage, it appears to us that a quantity of 
 •' articles of this description, intended not for the use of the 
 " traveller on the journey but for the use of his household, when 
 •' permanently settled, cannot be held to be so." 
 
 In another case the pencil sketches of an artist placed in his 
 portemanteau were held not to be part of his ordinary baggage, so 
 
 ,« I 
 
 (l> Uruty 0. G. T. Ky. Co., 32 L'. C. Q. H. 66. 
 
 (2) Porter «. Hildebr.inl, 14 I'eiin St. 129; l\.ins.is City Ry. Co. v. 
 Morrison, 34 Kan 502 ; U.ivis c. The Railroad, 10 Hoiv. I'r. ^xo, 
 
 (3) L. R..6Q. 15.612. 
 

 I 
 
 i 
 
 '.III 
 
 I'll 
 
 i 'SI 
 
 5 ;» 
 
 348 
 
 The Railway Law of Canada. 
 
 as 10 (.nalile llic-in lobe convcyt-d free of chirge. (1) Again, title 
 deeds of a client, wiiich an .ittoiney may 1)3 carrying with liim to 
 l)rodiicc in court, would not be considered as personal baggage; 
 nor would bank notes to a considerable amount carried in a bag 
 to pay liie expenses of the trial of a suit. (2) IJut otherwise, if 
 the money is carried to pay travelling expenses not exceeding a 
 reasonable amount. (3) It is, however, generally a question of 
 fiicl as to what personal ba.;gage is. 
 
 Aiticlcs, which, under certain circumstances, could not be held 
 to be personal baggigo. uiight be so considered unJer different 
 circumstances. So where a passenger carried in his bag small 
 articles of no great value intendel f^r presents to iiis friends at 
 his destination, they might be considered as personal baggage, 
 aUhcugh not sucii articles as '• travellers usually carry witii them 
 as part of tiieir baggage." (4) 
 
 In a Manitoba case, (5) it was held that silk dresses, jietiicoats 
 and children's clothing might fairly be held to bj ])ersonal 
 baggage, and perhaps an opera glass. .As to the latter class of 
 goods, it was held in an early Quebec case, (6) that where the 
 traveller is a ship master, common carriers will be held respons- 
 ible for a dressing case, and for night glasses and telescopes, 
 ujion the presumption that he may reasonably have thought they 
 would be useful to him in the course of his intendtd voyage across 
 the Atlantic. Again, in the Manitoba case, two suits of gentle- 
 man's clothing were held, under the circumstances of the case, 
 not to be personal baggage, for the trunk containing them was 
 carried as the baggage of the plaintiff's wife. Similarly, women's 
 dresses carried in a man's trunk have been held not to be 
 l)ersonal luggage, for which the carrier would be responsible. (7) 
 Window curtains, blankets, cutlery, books, ornaments, etc., are 
 not personal luggage. (8) 
 
 (l) M VI ton r. MidUiid Rv. Co.. 20 L. J. Ex. 3S5. 
 
 (21 I'li'elps r. l.on. & N.'W. Uy. Co., .^4 1 . J. C. V. 259. 
 
 (3) Menill r. (Jiinnell, ^i X. V. 594; OiitTy r. 'I'liompvin, 4 li. D. 
 Siiiitli 17S; 111. Central Ky. Co. r. Copeiaml, 24 111. 332. Schouler on 
 Kail-i. N: Car., ^ 669. 
 
 (4) Ihulsliin r. Midlan 1 Ry. Co.. L. R.. 4 < K H. 366 ; Tiie Ionic, 5 Hlalclif. 
 C. C. S3.S : Davidson r. Can. Sliipping Co., 19 R. L, 558, (1. R. i '^ H. 
 298 ; Ivatt's Canitrs No. 458, 
 
 (5) McCaflVey r. C. 1'. R., i Man. 350. 
 
 (6) Cadwallader r. G. T. R., 9 L. C. R. 169. 
 
 (7) MissisMppi P. i\y. r. Kennedy, 41 Miss. 671. 
 (S) McCaffrey r. C. P. K., i Man. 350. 
 
 M 
 
 mt 
 
Carriers. 
 
 34'J 
 
 In estimaling the kind, quantity, and valiio of the baggage 
 which is allowed to tlie passenger, it is fair to take into view 
 whence he comes, whither he goes, and what is his occupation and 
 social standing, (i) 
 
 an. There is no doubt that the carrier is equally responsii)le for Unchecked 
 unchecked biggage, whether it is put into the baggage car or is ''•''&8''B«- 
 put into the passenger car, unless indt.edsuch baggage is carried 
 in the car contrary to the regulations projjerly published and 
 brought to the knowledge of the passenger either actually or by 
 presumiJtion of law. The baggage is in the eye of the law in the 
 custody of the company, even though carried by tlu passenger 
 himself in the car, and they would be rej-ponsible for ils loss 
 as if it had been checked, though there is a modification of the 
 carriers' liability as insurers in such a case. It was held in Knglaiid, 
 in the cvl?,c q{ Derghciin v. G. E. II. Co. (2) that the carrier is 
 only liable in case of negligence. " The company must beheld 
 liable as respects those goods as bailees for hire and contractors 
 to carry, and therefore liable for loss or injury caused by negligence 
 but not otherwise ; the company have in fact the same liability 
 with respect to the carriage of those goods as ihey have with 
 res|)ect to the carriage of the passenger himself." (3) The 
 doctrine was more correcUy stated in a case of Talley v. Great 
 Western Ry. Co. (4) per Willes, J., who said: " With re.^pcct 
 " to articles which are not put in the usual luggage van, and of 
 " which the entire control is not given to the carrier, but which 
 " are placed in the carriage in which the passenger travel*, so 
 " that he, and not the comi)any's servant, has lic facto the entire 
 " control of them, the amount of care and diligence reasonably 
 "n::cessary for their safe conveyance is in fact considerably 
 " modified by the circumstance of their being, during that part 
 " of the journey in which the passenger might under ordinary 
 " circumstances be expected to be in the carriage, intended by 
 " both parlies to be under his peisonal inspection and care. 
 *' There is great fo'^ce in the argument that when articles are 
 " placed, Willi the assent of the passenger, in the same carriage 
 " with him, and so in fact remain in his own control and possession. 
 
 (1) Schouler liail. N: Car., § 6; I. 
 (3) Per Cotton L. J. at ]> 225. 
 
 (-2) L. K.,3C. r. D. 221. 
 
 (4) L. K.,6C. \\^^. 
 
 a 
 
 
 i \A 
 
r 
 
 r 
 
 •'i( 
 
 1 ' 
 
 I 
 
 ■ 
 
 i 
 
 ',t«l 
 
 1 '.ill 
 
 1 -ji 
 
 ,«l! 
 
 ^r. 
 
 M'^ 
 
 350 
 
 The Railway Law of (Janada. 
 
 '• the wide liability of the common carrier, which is founded on 
 " the bailment of the goods to him, and his being entrusted with 
 '' the entire possession of them, should not attach, because the 
 " reasons which are the foundation of tlie habihty do not exist. 
 •' In sucii cases, the obligation to take reasonable care seems 
 " naturally to arise, so that when loss occurred, it would fall on 
 " the company only in the case of negligence in some part of the 
 " duty which pertained to them, and that in such a case, it was 
 " an imi)lied term in the contract of carriage that, in return for 
 '' the convenience of having his luggage at hand, the passenger 
 " should during the journey take such care of his own property 
 " as migiit be expected from an ordinarily prudent man, and 
 " should not by his own negligence expose it to more than 
 " ordinary risk of luggage carried in a passenger carriage, and 
 " that the liability of the company was, under such circumstances, 
 ■' modified by tlie implied condu'on that the passenger should 
 " usj reasonable care, and where the loss was caused by his 
 " neglect to do so, and would not have happened without such 
 " negligence, the company would not be responsible." (i) 
 
 'i'iie opinions expressed in this case, and in those cited in the 
 note, have been entirely concurred in by the House of Lords in 
 the comparatively recent case of Great Western Railroay Co. v. 
 Bu'ich, (2) where the rule is laid down as follows : " A railway 
 company accepting passengers' luggage to be carried in a 
 carriage with the passenger enter into a contract as common 
 carriers, subject to tiiis modification, that, in respect of his inter- 
 ference with their exclusive contro 1 of his luggage, the company 
 are not liable for any loss or injury occurring during its transit, 
 to whicl 'he act or default of the passenger has been contri- 
 butory.'' And tiie reasoning in the Beri^/u'tiit case (^) was 
 disapproved. 
 
 In this country the same rule prevails. In the Ontario case of 
 Gamble v. The Great Western Railway Company, (4) Draper 
 C. J., held that the only difference c.uised by the system of check- 
 
 (\) And see Ricliaids r'. Lon., Hiiijliton ^: .Soiilli Coast Ry. Co., 18 L. J. 
 C. r. 251 ; Hutcher v. Um.ik. S. W. Ky. Co., 24 L.J. C. P. 137. 
 
 (2) 13 App. Ca«. 31, and al pp. 42 and 55, 
 
 (3) '5>«/'", !'• 349- 
 
 (4) 24 U. C. Q. U. 407. 
 
Carkikrs. 
 
 351 
 
 ing, as against tlic English system, was that the former was to be 
 considered as an additional precaution to prevent the baggage 
 from being given up to the wrong person, and the laws of this 
 country and of England are the same as regards the railway 
 company's liability. In the leading American case, (1) wliere 
 the railway company were declared not liable for the loss of 
 plaintiffs overcoat which he had taken into the car with him, it 
 was pointed out that " the overcoat was not delivered into the 
 possession or custody of the defendants, which is essential to 
 their liability as carriers." But in this country, as in England, such 
 delivery into the possession of the carrier is implied from the 
 usual course of dealing in such cases, and Hagarty, J-, in the 
 Cranilile case (2) said : " If defendants ordinarily i)crmii pas- 
 sengers to take articles of luggage into liic carriage with them, 
 making no objection, and not requiring them to surrender it into 
 their servants' special charge, it is not easy to see why they should 
 not be responsible." (3) 
 
 In a Quebec case (4) it was held that a carrier is not liable 
 for the loss or theft of an overcoat carried by a passenger in a 
 steamboat, and placed by a passenger on a sofa in the eating 
 saloon, while he was taking sujjper. And Monk, J., drew a dis- 
 tinction between this case and the Ontario one quoted above, to 
 the effect ihat in the latter case it v/as luggage that was lost and 
 in this case it was an overcoat, which was a distinction of some 
 moment. This was a case where the article, whether to be 
 considered as baggage or not, could hardiy be considered as 
 within the control or under the charge of the carrier, but practi- 
 cally entirely in the charge of the owner, and lost through his own 
 negligence; though the case turned partly upon the jjoint that 
 the coat was not baggage. 
 
 30. Carriers are not only responsible for articles of baggage when 
 
 received by them on their trains or veiiicles, but for articles l'^'''l''y 
 ,1- 1 • .1 • en • r • begins, 
 
 dclivereu to their proper otncers or servants for carnage, even 
 
 though, in the case of a railway, never ac-tually placed upon the 
 
 train. (5) So in England, it has been held that a railway company 
 
 ^ ♦ 
 
 In 
 
 
 (1) Tower i'. The Utica & Sclieneclady Raih-oad Co., 7 Hill (N.Y.; 47. 
 
 (2) Supra, \\ 350. (3) At p. 412. 
 
 (4) Torrance i'. The Richelieu (Jompany, 10 L. C. J, 335 (1866). 
 
 (5) C. C. 1674; Lovell r. Lon., Chat. & Dover Ry. Co., 45 L. J. Q. B. 
 476. 
 
 IJr 
 
 ^ 
 
 ^mll 
 
 i 
 
 
352 
 
 The Railway Law ok Canada. 
 
 li ' 
 
 :' *k 
 
 
 
 When 
 
 liability 
 
 ceases. 
 
 is liable for the loss of baggage delivered to a porter wlio under- 
 took to place it upon the train while the passenger was purchasing 
 her ticket, and that the porter was a person held out by the rail- 
 way conii)any as autliorized to receive baggage and other arlicks 
 for trans|)ortation, and that (he passenger was not personally 
 bound to see the luggage placed upon the train ; and it having 
 been lost or stolen, the company was liable, (i) 
 
 And in a Quebec case it has been held that where a person in 
 the employ of the carrier assumes the charge of baggage deliv- 
 ered on board of a vessel, the carrier is liable for such baggage, 
 though the person who received the baggage was there merely 
 during the temporary absence of the officer whose duty it was to 
 receive baggage. (2) And, similarly, where baggage was delivered 
 to the company's policeman, alone of their depots, several hours 
 befoie the departure of the train, it was held that the company 
 were liable, in the absence of proof that the plaintiff had knowl- 
 edge of the company's by-law declaring them not responsible 
 for uncheckea baggage. (3) 
 
 Checks given for baggage are merely evidence of its having 
 been received by the carrier, and its non delivery, but do not of 
 themselves establish the carrier's liability therefor. (4) In a 
 Nova Scotia case (5) a passenger sued for the value of her 
 trunk, which she alleged had been ])laced in the hands of the 
 company's servants, and a check given Iier therefor. Defend- 
 ants denied receipt of the trunk, and gave evidence that plain- 
 tiff had rtceived the check, not from tlKui, but from tiie cabman 
 who had driven her to the wharf. It was held that the case was 
 one for a jury only, and not for the Court to decide. Checking 
 is only an additional precaution to prevent the baggngo being 
 given to the wrong persons ; and the company will be liable as 
 well for the loss of articles unchecked. (6) 
 
 lil» The generally recognized principle in England and in the 
 United Stales is that the liability of the company ceases upon 
 
 (i) lUinch r. G. W. Ry. Co., 13 App. Cas. 31. 
 
 (2) Monisoii c. Kichtlicii 6t Out. Nav. Co., 5 L. N. -jj, S. C. 1S82. 
 
 (3) lV.s,icr r. G. T. k., 3 R. L. 31 ; but soe Welch 0. Lon. & N. \V. 
 Ry. C), 34 W. R. 166. 
 
 (4) Wood on Railways. \'ol. 3, h-c. 403. 
 
 (5) Stinipson i: The New England & Nova Scotia S. S. Co., 3 Geld & 
 Oxley 1 84. 
 
 (C) Gamble c, G. W. Ry. Co., 24 U. C. Q. 15. 407. 
 
 
 il4 
 
 bc^a 
 
Carrikks. 
 
 35:> 
 
 tlie arrival of the train, and ".he expiration of a reasonable time 
 given to the passenger to take delivery of his luggage, (i) The 
 contract of the company with the passenger is to carry him and 
 his higgageto the point of destination, and there deliver the bag- 
 gage to him, and during such transit they are liable as common 
 carriers for the safe carriage and delivery of tlie luggage : but if 
 the ijassenger, for his own convenience, chooses to leave the 
 luggage at the station on the arrival of the train, they become 
 merely depositaries, and liable only for negligence as ware- 
 li Mi^cineii r.r bailees. (2) 
 
 •' It is the duty of a railway company to have bagg.ige ready 
 for delivery on the platform at the usual place of delivery, until 
 the owner, in the exercise of due diligence, can call and receive 
 it; and it is the owner's duty to call for and receive it within a 
 reasonable time." (3) Where a passenger, on arriving at his 
 destination, deliberately refrained from applying for his baggage 
 on being told by his cabman that he could not conveniently take 
 it, and on sending for it on the following morning, one of the 
 three trunks could not be found ; it was held, on the above 
 grounds, that the liability of the railway company as common 
 carriers had ceased, and that the only claim (if any) which the 
 plaintiff, under the circumstances, had against the company 
 was as warehousemen or bailees. (4) And, in a Manitoba case, 
 where goods remained at the station at which a passenger 
 alighted, but it did not appear that the railway company had 
 charged, or was entitled to charge, for storage, it was held that 
 the company were not liable as warehousemen. (5) 
 
 The reasonable time to be given to the passenger for the 
 taking away of his luggage would appear to depend upon such 
 circumstances as the quantity of luggage, the number of people 
 and the facilities afforded. In other words, the passenger iiuist 
 
 (1) 2 Ri-dlicU), s' 171 ; Rich.irds.-. Lon., Biiyhton vS: Sniilli Co.nslKy. (Jo.. 
 !8 L. I. C. P. 251 ; Hutclier r . l.on. iS: S. W. Ky. Cd., 24 I.. J. C. V. 137 : 
 I'atscheidcr ;■. G. W. Ky. Co,, l>. K., 5 Iv\. 1>. 153 ; llodkiiison .- . Lon. ^S: 
 N. \V. Ky.Co., L.K. i^n. I!. O. 228 ; I'iith 7: N. E. f<y. Co., 36 VV. R. 467. 
 
 (2) C.C. 1799, 1802. 
 
 {3) Kedfield, Vol. 2, j 17I, No. 3,ciling Ouiniet r . lleiisliaw, 35 Vt. 605. 
 
 (4) Vineberg v. G.T. K., 13 Ont. App.93; .ind sec I'enton . . G T. U,, 
 28 U. C. Q. H. 367 ; Hogan r. G. T. K., 2 Q. I-. R. 142 : H;il!?'. G. T.K., 
 34 U.C. q. B. 517 ; Kellert:. G. T. K., 22 L. C. J. 257. 
 
 (5) McCaffrey r. C. I*. Ry. Co.. i .Man. 350. 
 
 23 
 
 
r \ 
 
 r 
 
 i 
 
 Iji 
 
 III 
 
 i 
 
 ill 
 
 354 
 
 TiiK Railway Law ok Canada. 
 
 have time given iiim to secure a means of conveyance and ob- 
 tain possession of liis baggage, due regard being had to tiie 
 quantity of baggage, the number of people, the size of the station, 
 and so on. 1(, however, lie voluntarily refrains from taking his 
 baggage on the arrival of the train, and leaves it in the custody 
 of the company, they would not be responsible, except in case 
 of negligence. These principles have been generally recognized 
 by the Quebec Courts, up to a very recent period. In ; i early 
 case of J/c^an v. G. T. Ry. Co. (i) Chief Justice Mereaith, one 
 of the most learned judges who has ever sat on tlie Bench of that 
 Province, held that where a passenger did not call for his trunk 
 on arriving at his destination at ten o'clock in the morning, but 
 for his own convenience left it all day and over night in the bag- 
 gage room, and it was destroyed by fire early the next morning 
 by the accidental burning of the station, the company were not 
 responsible. 'J'his decision was followed in a late case of Kcllcrt 
 V. G. T. Ry. Co. (2) There the same doctrine was laid down, that 
 the responsii)ility of carriers with regard to travellers' baggage 
 ceases when the owner arrives at his deslinraion, and without a 
 new conliact between tlie traveller and the conii)any to prolong 
 the resiionsibiiity of the latter, the company are not liable for the 
 loss of the baggage, this loss being attributable to the negligence 
 of the traveller. Tlie liability of conunon carriers is by the 
 Quebec Code (3) assimilated to that of innkeepers, for the safe 
 keeping of baggage and personal effects of travellers lodging in 
 their houses ; and in similar circumstances lo those just men- 
 tioned, the Courts have modified the liability of the innkeeper, ~ 
 that is to say, that where the relations of innkeeper and gu^st 
 cease to exist, the liability of the innkeeper for baggage left in 
 his possession afterwards is assimilated to that existing in the case 
 of a volimlary deposit. For instance, where a person comes to 
 lodge in a hotel, bringing baggage with him, and on his depart- 
 ure leaves his baggage in the hotel in the charge of the inn- 
 keeper, and does not return to lodge there, the innkeeper is 
 only liable in case of negligeiice, his responsibility being only to 
 exercise the care of a prudent administrator, and not remaining 
 
 (I) 2 Q. L. R. 142. 
 (3) C. C. 1672. 
 
 (2) 22 L.C.J. 257. 
 
 . 
 
Carriers. 
 
 '}\ 
 
 355 
 
 li.;ble except in case of negligence, (i) In Ontario, tlie doctrine 
 lias been clearly recognized botli with regard to railway coni- 
 jinnies as carriers of passengers' baggage, and to innkee|)ers. We 
 niiglu instance the case of Pcnton v, G. T. Ry. Co.^ (2) where 
 ii trunk was left by the jjassenger in charge of tlie baggageman 
 from three o'clock to eight o'clock in the afternoon, and on his 
 return was found to be missing. It was held that the company 
 were not responsible, as their liability ceased when the trunk was 
 placed on the ijlatform, and a reasonable time had elapsed for 
 the passenger to remove it. Again, in tiic late case of Viiicbcrg 
 V. G, T, Ry. Co., (3) where the i)assenger, upon the arrival of 
 the train, refrained from applying for his baggage, and on send- 
 ing for it the next day, one of his trunks could not be found, it 
 was held that the liability of the (•omi)any as carriers had 
 ceased, and that the plaintiff's only claim (if any he had) against 
 the com])any was as warehousemen or bailees. (4) 'i'he same 
 lirinciplc is enunciated with regard to innkeepers in the case of 
 J^alin V. 7v'(V,/. (5) There the plaintiff had been for some time 
 a guest of the defendant, an innkeeper, and on leaving the inn, 
 was allowed to leave a bcjx containing papers, etc., in the bag- 
 gage room of the hotel. On returning some days afterwards, the 
 box cou:d not be found. There was no other evidence of ne- 
 gligence. It was held that the nlaintiff could not recover. 
 
 I'here would seem to be no difference between the law 
 in Ontario and in (Quebec in this respect. In a very recent 
 case, however, of J\lla)it v. C. 1\ R. Co., (6) the .Superior 
 Court of Quebec departed fiom this principle, and held 
 that there was no difference between the liability of 
 railway companies as carriers of passengers' baggage while in 
 transit, and their liability as warehousemen or depositaries after 
 its arrival. There the plaintiff, on the arrival of her baggage at 
 Montreal, ascertained that it had safely arrived, and allowed it 
 to remain in the company's premises for over 24 hours. On 
 
 (1) Holmes T'. Mooie, 17 L. C. K. 143.. 
 
 (2) 28 U. C. Q. «. 367. 
 
 (3) I3()nt. A. R. 93. 
 
 (4) And see McMillan 7 . G. T. Ry. Co , 16 S. C. R. 555, per Strong, 
 1, ; Chapman r'. G. W. Ry. Co., L. R., 5 Q. B. D. 278. 
 
 (5) 10 Ont. A. R. 63. 
 
 (6) M. L. R., 7 S. C. 131. 
 
 ■n 
 
 ht 
 
 • . 
 
* 
 
 ' 1*1 ;;: 
 
 I!; :i !* 
 
 
 =3 
 
 
 ( :r. 
 
 
 
 3i^ 
 
 The Railway Law ok Canada. 
 
 sending tor it the following morning, and on production of her 
 checks, it was found that one of the trunks was missing. The 
 whole of the baggage had been placed in the company's baggage 
 room, and was proved to have remained there as unclaimed bag- 
 gage until a short time previous to being claimed. The com- 
 jiany, in order to rebut any presumption of negligence, proved llie 
 safety of the premises, and that one or more persons were con- 
 tinually present in charge of the baggage ; that it had not been 
 missent to any other place, and could not have been taken away 
 by mistake in exchange for other checked baggage, advancing 
 the theory that it must have been stolen or taken away, notwith- 
 standing all due care and diligence on the part of the company's 
 servants. The Judge in the Superior Court held the company 
 liable, and his decision might be supported on the ground that 
 if, as appeared to be the case, the baggage was taken away dur- 
 ing the day, it must have been through some fault or want of 
 vigilance on the part of the men in charge of the baggage room ; 
 but the learned Judge laid down positively the principle that the 
 company's liability as carriers existed until the actual delivery of 
 the goods, and that the extent of their responsibility was the 
 same as depositaries of the goods as it was while they were 
 actually in transit on the railway.. However, as the learned Judge 
 look the view that, as carriers, the company would be excused 
 in the event of an accident happening on the line without negli- 
 gence on their part, such for instance as a fire, it cannot be said 
 that he applied to the company as depositaries a greater n^eas- 
 ure of responsibility than he would have applied to them as car- 
 riers ; in fact, he seems to have held that as carriers of the hag- 
 gage, they would only have been liable in the case of negligence. 
 This being the learned Judge's view, it might be well said that 
 their responsibility as depositaries was not greater than that as 
 carriers, but there seems to be little doubt that the juiisprud- 
 ence is now well settled that their liability as cairiers does not 
 depend upon the question of negligence, but is practically abso- 
 lute. This judgment was confirmed in appeal, chiefly on the 
 ground that negligence and want of proper care on the part of 
 the company's servants in charge of the baggage room was 
 t)roved. (i) 
 
 (I) C. P.Ry. r. reliant, Q. R. i O. IJ. 311. 
 
Ir 
 |e 
 |e 
 
 Carrikru. 
 
 35; 
 
 In a siiljseqiicnt case it wa^ lield by the sams judge, tlixt where 
 a transatlantic steamsiiip company consented to keep travellers' 
 baggage on arrival till examined by tlie customs officers, and 
 placed it in tlicir sheds, the contract of carriage was not ended until 
 the examination was completed, and an o|)portunity given the 
 ]iassengers to takeaway their baggage ; and that the company 
 were liable for a trunk 'ost pending the examination, (ij And 
 this would he in accordance witii the principle that a reasonable 
 lime must be allowed to lake away baggage. 
 
 Where baggage has been found after suit has been issued, and 
 has been accejjted by the owner, tlie railway company is only res- 
 ponsible for the taxable costs incurred up to date of delivery. (2) 
 
 15 5S, 'I'his subject has given lise lo much discussion. A large Liability of 
 
 number of decisions in the United .Slates has resulted in rendering sleeping car 
 , , , r ■ , J r ■ companies, 
 
 the law there fan-ly definite. 
 
 In this country there are apparently but two decisions, one in 
 the Province of Ontario, (3) the other in the Province of Que- 
 bec. (4) 
 
 In the United States the law on the subject is briefly stated 
 as follows by the New Vork La't^' Joiirnal : — " While the comjiany 
 is not liable as an insurer, it is bound to furnish sleeping passen- 
 gers with reasonable [)roteclion against theft, as from the very 
 nature of the contract between the parties, it was intend.'d tliat 
 the passengers should not remain capable of protecting them- 
 selves." (5) The com[)any is bound to have watch kept the 
 entire night. (6) 
 
 Tiie almost universal rule is that sleeping car companies are 
 not liable as common carriers, or innkeepers, but only for negli- 
 gence, and that the burden is upon the plaintiff to offer some 
 proof of negligence in addition to the fad of loss. (7) 
 
 (1) Davidson -■. Can. Shipping Co., 19 K, L. 558. Confirmeil in appeal 
 Q. K. I. Q. B. 298. 
 
 (2) Provencher r'. C. I'. R., M. L. R., 5S. C. 9. 
 ( O Ste.irn r. The Pullman C;ir Co., 8 O. R. 171. 
 
 14) Sise '■, The Pullman Palace Car Co., Q. R., i S. C. 9, confirmed by 
 the Court of Queen's Bench in Appeal, Pullman Car Co. r. Sise, Q. R., 3 
 Q. H. 258. 
 
 ^5) Pullman Car Co. r. Gardner. 3 Pennypaker (Penn.) 78 ; Carpenter 
 7. N. Y.N. II. & H. R. R. Co., 124 N. Y. 53. 
 
 (6) lb ; Uluni -'. Southern Pullman Car C<i., 3 Cent. L, J. 591, 
 
 (7) Pullman Palace Car Co. r. Low, 30 Cent. L. f . 245 ; Carpenter v, 
 N. V.N. H. & H. R.R.Cc, 124 N. Y. 53 
 
 
 ■■Ml 
 
ill |l I' 
 
 •1 l!l 
 l;;iJf 
 
 'I! 
 
 
 Si; 
 
 358 
 
 The Railway Law of Canada. 
 
 On the qiieslion of tlie measure of damage, it has been held 
 that the responsibility extends only to a passenjrer's clothing and 
 personal ornaments, the small articlesof luggage usually carried in 
 the hand, and a reasonable sum of money for travelling expenses, 
 taking into consideration his circumstances in life. It certainly 
 would be inequitable to the company to charge it with liability 
 for any nulefniitely large sum which a man may chouse to carry 
 with iiim and place under his pillow. (1) 
 
 The two Missouri cases last cited hold, in addition to the pro- 
 positions above laid down, that a ])as.senger who leaves in his 
 waistcoat, in his berth, a large sum of money, while he goes to 
 the closet at the end of tiie car. is guilty of contiibutory negli- 
 gence as a matter of law. If a passenger, before retiring, leaves 
 his clothing and valuables in an empty berth directly above him, 
 which upper berth he has not hired and does not control, it is 
 not as a matter of law such contributory negligence as will bar 
 recovery. (2) 
 
 The whole gist of the matter in these sleeping car decisions 
 is that the contract contemplates the passengers going to sleep, 
 and tliat the company is therefore bound to take precautions to 
 protect him from stealthy theft. If the passenger is awake, the 
 ordinary rules as to the protection of his own properly apply. On 
 this point it has been held (3) where a passenger on a parlor 
 car got off at a station for refreshments, leaving property on her 
 seat which she did not put under the charge of defendant or its 
 agents, and the same was stolen during her absence, that she 
 was guilty of contributory negligence fatal to her action. 
 
 Other cases have been decided in keeping with the foregoing 
 jurisprudence. (4) 
 
 In disci.ssing this question from a practical point of view, it is 
 evident that the question, as to whether sleeping car companies 
 are or are not liable as common carriers or innkeepers, is not of 
 such importance as the determining by the courts of the degree 
 of negligence required to render the company responsible. 
 
 (I) IJlum 7\ Southern Pullman Car Co. , 3 Cent. L.J. 591 ; Root v. Sleep- 
 ing Car Co. , 28 Mo. Ann. 2CO ; Wilson f. 15. 6t O. K. K. Co., 2 Mo. App 
 682. " • ' 
 
 (2) Florida f. TuUnian Car Co., 37 Mo. App. 598. 
 
 (3) Whitney z: Pullman Palace Car Co, 143 Mass. 243. 
 
 (4) Hampton v. Pullman Palace Car Co., 42 Mo. App. 134 ; Harrolt v. 
 Pullman Palace Car Co., 51 Fed. Rep. 796. 
 
 1 
 
 1 
 
CaRMI'RS. 
 
 359 
 
 lid 
 Id 
 
 in 
 
 I'y 
 
 [>■ 
 
 rv 
 
 For instance, in ihu Ont.^rlo case, (i) whicli li.iscd its deci- 
 sion on the American cas(.;.s, ihe question turned entirely upon 
 the negligence of the company, and as the latter were held not 
 to be instirers of the b-ij^gage, the burden ol" proof was upon 
 plaintiff to show negligence on the part of llie company. 'I'iiis 
 he failed to do to the satisfaclfon of the judges, as lie couKl not 
 prove any specific act of negligence. lint in a N'ew Vork 
 case, (2) where the facts were exactly the same, as w.is apj^ar- 
 ently the law applicable to the case, the court saiil : '' 'i'he un- 
 disputable evidence is that the entire forc^- employed on the 
 sleeper, which ran over an important thorouuhlare, and made 
 fre(iuent stops, was one man (as in tiic ( )iUaii(i cax.) who acted 
 as conductor, as porter, and was also engageil for his own profit 
 ill blackening the shoes of tlie jiassengers. Whether this em- 
 ployee had tiial part of tiie sleeper, wliich is for the iH)nun()ii use 
 of passengers and liie servants of the coriJoration. constantly 
 in view duiing the trip is not shown iiy tlie evidence, except 
 inferentially. These facts affirmatively ajipear, and in addition 
 it may be presumed that he assisted passengers in entering and 
 leaving the coach at intermediate stations. 'I'he existence of these 
 facts was not denied, nor was any explanation of them offered. 
 The defendant gave no evidence. I'nder the circumstances liie 
 evidence was sutticienl to put the defendant to jjioof of the care 
 wiiich il took of the occupants of liie sleeper on this trip, and in 
 the absence of any explanation on its part it was suflicienl to 
 require the (piestion, whether the loss was caused by the defen- 
 dant's negligence to be submitted to the jury.'' 
 
 It may be pertinently asked, why, in the United States, are all 
 actions for losses in Pullman cars taken against the Pullman Car 
 Company instead of the railway ? Is it because the railway 
 company, with whom the contract of carriage is always made, 
 would not be liable? This cannot be so, for it has been iield 
 by the Supreme Court of Massachusetts, (3) that if a person, 
 who has mide a contract with a railroad corporation for his per- 
 sonal transportation from one place to another, takes a seat in a 
 sleeping car, for which he had bought a ticket, and there loses an 
 
 (1) Steain r. Tlie Pullman Car Co., 8 OK. 171. 
 
 (2) Carpenter f. The N.Y. N. II. & 11. R. K. Co., lZ^ N. V. 53. 
 
 (3) Kinsley T . Lake Shore Railroad, 125 Mass. 54. 
 
 m 
 
360 
 
 TiiK Raiiwav I, aw oi' Canada. 
 
 ailicli.' u( personal haggaj,'!.', through the ncgligeiuo of a jiuison 
 ill charge of the car, and without fault on his own part, it is no 
 dcfcnic to an action against the corporation tliat the car was not 
 iiwncil i>y the iK'fcndaiit. but by a third i)crson, who, by a con- 
 trat t wilii llio dcfend.ini, provided comhiciors and servants ; in 
 tlic alisincc of e\ idcnco, tliat tiie plaintiff had knowledge of the 
 fact. 
 
 The answer to llie ip.ostioit lies in this: tiial in the United 
 Slates a railroad corporation is not liable as a coninion carrier 
 for an article of personal baggage kept by a passenger exclusively 
 within his own control, (i) The contrary, of course, is the 
 rule in I'.nglaiul. (2) Consequen'.ly, actions in tlie former 
 country have invariably been taken against the sleeping car 
 company with a view to fixing upon them a special liability as 
 innkeepers ; but this contention has only been maintained in 
 about one inst.ime. (,^) 
 
 We explained in a ]irevious part of this work (4) the rule 
 ajjplicable to the common law provinces of this country is liiat 
 laid down in tlic Grcit iW^tcni h'aii'a'uy Co. v. Jhincli. (s) 
 
 Once ti.ese views are acceptcil here, theipiestion as to whether 
 sleeping car companies are liable as innkeepers or carriers will 
 not have much practi al interest in actions by passengers for the 
 loss oi their bagi^age. 
 
 In (Juebec, however, the question as to whether sleeping car 
 companies are liable as innkeepers or not takes a different interest, 
 for there the term innkeeper must be interpreted according to 
 the civil law authorities. The case o^ Sise v. The I'lilhiian 
 Pcthuc Cirr Co. (6) decided that sleeping car companies are 
 liable as innkeepers. 
 
 in api)eal, the S/s' case was confirmed, but, on the grounds of 
 negligence, the Court avoiding the question as to whetliLM* tha 
 company were innkeepers. (7) In a French case, (8) decided 
 
 (I) See S/i/'/ii,\-i. 351, .Tiiil Kinsley ?'. Lake Shore Railroad, 125 Mass-. 54. 
 
 (3) (Ireat Western Ky. Co. r. UuncI), 13 App. Cas. 31. 
 
 (3) Pullman Palace Car Co. r. I.owe, .Supreme Ct. of Nebraska, Ma.x- 
 wcli, J., 1889, Amer. Law Register, 1890, p. 251. 
 
 (^ySnfrn, p. 350. (5) Ulii sntra. (6) Q. R., i S. C. 9. 
 
 (7) Pullman Car Co v. .Sise, Q. R., 3 (J. 15. 258. 
 
 (S) Conipagnie lies Wagons-L'ts ?'. Epoux Barthelemy, Tribunal Civil ile 
 la Seine, 14 M.ii 1S92, translate'? i.i I M. L. U. & R. 323. 
 
 1 
 
('aukiirs. 
 
 3f,i 
 
 ai)Oiil tlic same time as ll'.c .SVvt- case was decided in Uie Suiierior 
 C'oiirl, il was held that such companies were not lial)ie as inn 
 keepers ; and it is interesting to note liuU tliis < ase is now before 
 the Court of Cassation. The decision of this Comt will, n{» 
 doubt, have much weight in mouidii\g the future j'lrisprudence 
 of (Quebec on this poiia. 'I'lie I'rencii case, however, decided 
 that liie sleepinj^ car company were common carriers, acting in 
 concert with tlie railway company whoso lines and traction they 
 hired. 
 
 lili. There i-i no doubt that however much railway companies 
 may liinil the amount of i)aggage that travellers may lake as such, 
 and the sum for wliicli they will be liable thereon, yet the liability 
 will be controlled by sub section •? of sec. 246 of 'i'he Railway Act, 
 and the decision ol (>'. 7. h'v. C'. \-.l\i/, (i) but juU to what 
 extent has not yet been decided by any reported cases, although 
 the point was barely touched uj'on in S/nno v. C. P. A'. Co. (2) 
 It was there decided thai the section of the Act jjrobably intro- 
 duces an implied term in contracts to which il is applicable. 
 
 Spei ial conditions on tickets must be brought to the notice of 
 the purchasers thereof to bind them. (3) Thus, where the agent 
 obtained llie plaintiff's signature, expl, lining that it was for the 
 purpose uf identification, but did not read nor explain to her any 
 of the conditions, and having sore eyes at the lime, she was 
 unable to read them herself, it was held that siie had not had 
 noiice of the conditions. (4) Ami, as to the evidence in such 
 cases, il has been held proper to admit a letter written by the 
 defendants' baggage agent to the passenger agent, askiiig whether 
 plaintiff's attention had been called to the condition on the ticket) 
 and why il had not l)een signed by her, and the reply thereto, 
 stating thai the company's rules did not require unlimited first- 
 class tickets signed, and that this ticket had been sold at full tariff 
 rale. (5) 
 
 The company will not be held liable for loss of baggage where 
 
 Limiting' 
 lialiilily. 
 
 (1) II S. C. R. 613. 
 
 (2) 5 Man. 3;,4. 
 
 (3) Kich.iidson, S|)encc 6t Co. r. Rownliec 6 K. 95 (1894) ; I'.ate r. C. 
 r. K., iS S. C. H. 697 ; AlKnn r . Woodward, 22 L, C. | . 315. (^. H. 
 
 (4) Rite r . C. 1'. R , 18 S. C. R. 697. 
 
 (5) Amleiion :■. C. I*. R., 17 O. R. 747. 
 
 i li 
 
 mmmmmmmm 
 
 1M 
 
I r 
 
 ^Ui 
 
 362 
 
 Prescripiion 
 ov limitation 
 of actions. 
 
 The Railway Law ok Canada. 
 
 a commercial traveller, whose ticket was issued at a reduced rate, 
 caused trunks to be checked wiiich did not constitute his hag- 
 gage proper, but conlained sanijles, the ticket containing the 
 condition that in view of the reduced rale the company would 
 not hold themselves responsible for loss of goods or merchandise 
 carried by the travellers, (i) Bui where the condition of the ticket 
 issued to commercial traveilerr> was " with allowance of 300 lbs. 
 of baggage free, but the baggage must be at the owner's risk 
 against all casualties," it was he.d by the Supreme Court, liiat 
 though tiie goods lost were in one sense merchandise, tiiey were to 
 be treated as the personal baggage of a person in the position of 
 the plaintiff travelling with samples in the course of his business ; 
 but the company were protected by the condition. (2) 
 
 34, The one year's limitation clause, under sec. 287 of tlie .-Vet 
 does not apply to actions for loss of baggage arising out of con- 
 tract, but onlr to actions for damages occ-asioned by the com- 
 pany in the execution of the powers given, or assumed by them 
 to be given, for enabling them to maintain their railwa_ . (4) 
 
 (1) I'.ickard r. C. 1'. Ry. Co., M. 1.. K., 5 S. C. 64. 
 
 (2) Dixon :■. Rich. Nav.Co., iSS.C. K. 704.arriruiiny 15 Out. A. k. b\-. 
 
 (3) Andci^on ;•. C. 1'. Ry. Co., 17 O. R. 747. 
 
 
 
Ili- 
 
 
 CHAPTER XI. 
 
 NEGLIGENCE. 
 
 1 . /itik in the Provinces other than 
 
 Qiiebee. 
 
 2. Illustrations of remote fiegli- 
 
 S^'oc'- ,■■ ■ 
 
 3. Siibscjuenllv developed injur u s. 
 
 4. Ads of God. 
 
 5. Ads cfa^i^ents and servants. 
 
 6. Non-performance of statutory 
 
 duly. 
 7 Contril'ulory ne„'li^'ence. 
 
 8. Jnjuries received while avonlm:^' 
 
 danger and inconveniences. 
 
 9. Children, dc. 
 
 10. Negligence of parents. 
 
 11. Intoxication. 
 
 12. Burden of proof 
 
 I-. Presumption of negligence. 
 
 14. The Court and the jury. 
 
 15. The la-.v of negligence in th 
 Province of Quebec. 
 
 16. 
 
 I"' 
 
 iS 
 
 19. 
 
 20. 
 
 21- 
 
 22. 
 
 23' 
 24, 
 
 2; 
 
 26, 
 27, 
 28 
 
 Injuriii to persons on the raikvay 
 
 track . 
 Obstructing and interrupting 
 
 free use ofraihvay. 
 Injuries to employees.^ 
 Volenti non fit injuria. 
 . Special provisions for the pro- 
 tcdion of employees. 
 Investigation into accidents. 
 Cattle injured or hilled on the 
 
 railway. 
 Burden of proof. 
 Cattle at large on the high-way. 
 
 By-laws allowing cattle to run 
 
 at lari;e. 
 Damage by fie. 
 , Evidence in such cases. 
 , Kule in the Province of Quebec 
 as to damage by Jire. 
 
 1 AS regards the English law of actionable •^f^'Tl^^::^ 
 -T 1; seen U,a. U, v- o... ^.^^^^^^^^^ 
 
 -T^TH^avenV. Pender, L. R. II Q. B.D. at p. 507. 
 
 
i i 
 
 ill 
 
 t ■ ■'[ ; 
 
 i ( • ' 1 
 
 i 
 
 •.: 1 
 
 H 
 
 I 
 
 l;,!5l 
 
 !^:3 
 
 : 
 
 ri 1 
 
 1 
 
 i 
 t 
 
 1 
 
 1 J 
 
 
 ,1 
 
 
 1 
 
 
 5 ^ 
 
 i 
 
 
 ilk 1 1 
 
 . 1 
 
 Illuslralions 
 of remote 
 negligence. 
 
 364 
 
 The Raii.wav Law of Canada. 
 
 which the action is based amounts to slight or gross negligence, 
 so long as tiiere is an obligation to exercise that care, the want of 
 which is the cause of injury. (1 ) As was said by Lord Cranworth, 
 there is " no difference between negligence and gross negligence ; 
 it is the same tiung, with the addition of a vituperative epi- 
 thet." (2) 
 
 But it is also necessary, in order that the negligence should be 
 actionable, that it siiould l)e the proximate and not the remote 
 cause of the injury to the i)laintiff. (3) In tiie case of Victorian 
 Jiiii/'n'iiy Coiiunissioiiirs v. Conltas (4) in the Privy Council, it was 
 decided that damages for a nervous shock or mental injury 
 caused by friglit at an impending collision are too remote. (5) 
 Pollock, C. 1'.., in Grccnla)ul v. Clhiplin (6) expressed the view 
 that a person is expected to anticipate and guard against all 
 reasonable consequences, but that he is not, by the law of 
 England, expected to anticipate and guard against that which 
 no reasonable man would expect, to occur. 
 
 *i. The following are cases in which the negligence proven wa? 
 held not to be the proximate cause of the injury. 
 
 A railway having unlawfully obstructed a highway crossing by 
 a train at lest, the plaintiff, in order to avoid the obstruction, 
 turned into another street, and there was injured by falling ice. 
 (7) 'I'he laiiway had i)ermitted a derailed and overturned car 
 to remain at the side of a highway crossing, and the plaintiff's 
 horse was frightened thereby. (S) Where tlie railway obstructed 
 a highway crossing by a train, and the plaintiff, in avoiding the 
 obstruction by driving across the line, at a point where there was 
 no public crossing, and, consequently, no planking between the 
 rails, was jolted out of his vehicle and thereby injured. (9) Where 
 
 (1) Lord Deninan, 2 Q. 15. 661. 
 
 (2) Kolfe li., II M. iSiW. 115. 
 
 (3) Lord Uacon, Max. Reg. I ; G. T. Ry. Co. 7'. Rosenberger, 9 S. C. R. 
 311; Metropolitan Ry. Co. t. Jackson, L. R. , 3 App. Cas. 198 ; Canada 
 boutliern Ry. r. Thelps, 14 S. C. R. 132. 
 
 (4) >3 -^PP- <-''is. 222. 
 
 (5) And for the same rale in (^ueb3c,sej Rock <■'. Dinis, ^L L. R., 4 
 S. C. 134, 16 R. L. 569. 
 
 (6) 5 Ex. 243- 
 
 (7) P. C. & St. L. Ry. Co. :■. Sialey, 41 Ohio St. 118. 
 (S) P. S. Ry. .- . Taylor, 104 Penn St. 306. 
 
 (9) Jacksc -. N. C. & St. L. Ry., 13 Lea (Tenn.) 491. 
 
I 
 
 ■^ 
 
 Negligence. 
 
 3<^5 
 
 the carriage in which the passenger was riding was overcrowded, 
 other persons attempted at a station to force their way into the 
 carriage, and the plaintiff having risen to prevent their entrance 
 as the train started, in order to save himself from falling, put his 
 hand on the edge of the door, where it was caLight and crushed 
 by the act of the railway's servant in closing the door, in per- 
 formance of his duty, (i) Where the railway set down the plain- 
 tiff and his wife and children at night in a rain storm, at a station 
 several miles distant from that to which it had agreed to carry 
 them, and the wife contracted a severe illness from walking in the 
 storm. (2) 
 
 a. The general rule is that railway companies are liable for sub- Subsofiuently 
 sequently developed injuries that cannot be proved to have re- '.'h^'*^!"!'*^' 
 suited from a sufficient independent cause, (3) as, when a 
 prematuie confinement and birth of a dead child resulted from 
 fright caused to a pregnant female passenger by a collision. (4) 
 
 4, The mere fact that a natural phenomenon has happened Acts of (jotl. 
 once, when it does not carry with it or import any probability of 
 
 a recurrence, does not place it out of the operation of the rule of 
 law with regard to the act of God. It is not necessary that it 
 be unique, that it should happen for the first time. It is enougli 
 should that it is extraordinary, and such as could not necessarily 
 be anticipated. (5) But where there is negligence on the part of 
 the railway company conducive to the injury in connection with 
 an extraordinary natural phenomenon, the railway cc ipany 
 would be responsible. (6) 
 
 5. The relation between the railway company and the person Acts of agents 
 who has omitted to perform a particular act of care is immaterial servants. 
 where the duty of the company towards the injured person re- 
 quired it to be performed for his protection : — the liability is deter- 
 mined by the fact of the omission. (7) But where the injmy is 
 
 (i) Metropolitan Ry. Co. ?■. Jackson, t, App. Ca?. 193. 
 
 (2) HobbsT'. London & South Western Ry. Co., L. R., 10 (). 1!. 1 1 1 ; Imt 
 see Toronto Ry. Co. ?•. Grinsted, 24 S. C R. 570. 
 
 (3) Robinson 7'. C. P. Ry. Co., M. L. R., 2 Q. B, 25. 
 
 (4) Fitzpalrickr. G. W. Ry.Co., 12 U. C. Q. U. 645. 
 
 (5) Per Fry J. in N. P. 6t O. C. M. Co. r. L. & St. K. Docks Co., 
 L. R.,9Ch. D. 515. 
 
 (6) Lambkin v. South Eastern Ry. Co., 5 App. Cas. 352. 
 
 (7) Per Blackburn, J., in The Mersey Dock Trustees z*. Gibbs, L. R., f 
 H. L. 115. 
 
 ^h 
 
i'J 
 
 I! ! 
 
 mI'.:! !! 
 
 
 
 IH . 
 
 
 366 
 
 The Railway Law of Canada. 
 
 caused by an overt act of commission, the liability depends upon 
 the relationship of the person committing the wrongful act, and 
 iho company, and the application of the maxim, qui facit per 
 alitim facit per se. (i) So where a stranger put a fog signal on 
 the track, and a passenger was injured by an explosion, the com- 
 jiany was held not liable. (2) 
 
 But where the proximate cause of the injury is the negligence 
 of the railway company, the fact that the negligent act of a 
 tiiiid i)arly contributed to the injury will not exempt the com- 
 pany from responsibility. (3) 
 
 Non-i'C'ifurm- G. Where tliere is a duty cast upon a railway company, by 
 .ince of statu- ^latute, the company are responsible for injury directly resulting 
 from neglect of such duty : — or at least a failure to comply with 
 tlie provisions of the statute, or even of a municipal ordinance, 
 is evidence of negligence ; but wiierc the injuries do not directly 
 result from neglect of such duty, tiie company would not be 
 responsible merely because of such neglect. (4) 
 
 As illustrating the npplication of tliesc principles the fol- 
 lowing cases may be referred to. At a place whicli was not a 
 station nor a highway crossing, the N. B. Railway Company had a 
 siding for loading lumber delivered from a saw mill and piled 
 upon a jilatform. The deceased was at the platform with a 
 team for the jnu-pose c " taking away som-? lumber, when a train, 
 coming out of a cutting, frightened tlie horses, which dragged 
 the deceased to the main track, where he was killed by the 
 
 --! I 
 
 (1) Kcudie :■. L. & N. W. Ry. Co.. 4 Ex. 243. 
 
 (2) JoiK'sr. (;. T. R., 45 U. C, (^. B. 193. 
 
 (3) Illitlge ',\ Goodwin, 5 C. & 1'. 190 ; Lynch ''. Nmdin, i Q, IJ. 21; ; 
 Daniels T'. I'otter, 4C.&P. 262 ; Hughes r'. Macfic, 2 H. & C. 744; Col- 
 lins :•. M L. Commis, L. R. , 4 C. P. 279 ; .Sneesby :■. L. & V. Rv., L. R., ; 
 1). 42 ; Cl.ark r. Cliambers, L. R., 3 Q. H. D 327 ; Smith r. 1,'. & S. W. 
 Ry., ,... R., 5 C. P. 98 ; Huirows :•. March, G. & C. Co., L. R,, 5 E.\. 67, 7 
 Kx. 96: Walling r. O.astter, L. R., 6 E.\. 73. 
 
 (4) Williams 7. C. \V. Ry., L. R., 9 Ex. 157 ; Hayes ?■. M. C. R. R., 1 11 
 U..S. 228 ; Nitro Phosphate Co. v. L. S.&St. K.Co.,L. R., 9 Ch. D, 503 ; 
 Atkinson : . N. &. G. Water Works Co., L. R., 2 Ex. U. 441 ; Ilanlon v. S. 
 B. H. Ry. Co., 129 Mass. 310 ; Kelley v. II. & St. J. Ry. Co., 13 Am. & 
 Eng. Ry. Cases 638 ; Meek v. Penna. Co., ibid. 643 ; Great Western Ry. 
 r . Brown, 3 S. C. R. 159; G. T. R. r. Rosenberger, 9 S. C. R. 311 ; G. 
 'P. R. f. Sibbald; G. T. R. 7'. Tremayne, 2o S. C. R. 259; Couch v. 
 Steel, 3 E. & B. 402 ; Blamires v. L. & Y. Ry., L. R., 8 Ex. 283 ; Britton 
 V. G. W. Cotton Co., L. R., 7 Ex. 130 ; Stapley v. L. B. & S. C. Ry., L. 
 R., I Ex. 21. 
 
Negligence, 
 
 367 
 
 train. It was held that lliere was no duty upon tlic company 
 under the statute to ring the bell or sound the whistle, or to 
 take special precautions in approaching or passing the siding. 
 
 As another instance of a similar accident may be mentioned 
 the case of Howe v. JLiiiii/ton ((■ North IVcstcrn liy. Co., 
 (2) where the Court of Appeals in Ontario decided that a rail- 
 way company was not resj^onsible for an accident caused by a 
 horse taking fright at an engine standing near a crossing of a 
 public road, where the company had been empowered by the 
 corporation to run their railway along the highway, there being 
 no i)roof of negligence on the part of the railway company in 
 the management of the lucomolive. And the same doctrine 
 was upheld in a case in Quebec, (3) where a horse took fright at 
 the escape of steam from a locomotive standing on one of the 
 wharves at Quebec, and was killed ; the Court holding that the 
 escape of steam was without negligence on the ])art of the driver 
 or ])crson in charge of the engine, and was a necessary conse- 
 quence of the exercise of the powers of the railway company, and 
 ihc engine being lawfully where it was under the charter of the 
 company, and the permission given by the City Council to con- 
 struct and operate the railway at that point. 
 
 ]jut where the railway company iiad erected posts on their lii-'e 
 at some distance from a highway crossing and bridge, forihepur- 
 ]iose of indicating that trains should stop there before approach- 
 ing the bridge, and a train, instead of slopping at the posts, came 
 on to within a few yards of the bridge, and the engine remained 
 there blowing off steam, whereby the plaintiff's horses, attempting 
 to cross the bridge, were frightened and ran away, the company 
 were held liable for the ensuing damage. (4) 
 
 (i) New lirunswick Ry. Co. "•. Vanwart, 17 S. C. R. 35 ; and see C. P. 
 U. t . Lawson, Supreme Court 18S5, Cassels, p. 731 ; G. T. K, f. lioulanger, 
 Supreme Court iSSft, Cassels, p. 734 ; G. T. R. v. Beckett, 16 S. C. R. 713 ; 
 Can. Southern Ry. Co. r. Jackson, 17 S. C.,R. 316 ; Jones r'. G. T. R., iS 
 S. C. R. 696. 
 
 (2) 3 Ont. A. R. 336. 
 
 (3) C. P. R.Co. V. Chateauvert, 16 R. L. 28. 
 
 (4) C. P. R. Co. r. Liwson, C^ass. Dig. 731 ; and see G. T. R. Co. -j. 
 Ro;enburger, 9 S. C. R. 31 1. 
 
 'k 
 
 mm 
 
368 
 
 The Railway Law ok Canada. 
 
 I .1 
 
 14 
 
 i 
 
 Contributory 7» Where llio person injured has contributed to the injury by 
 negligence, failure to exercise ordinary care, to such an extent that the 
 accident would not otherwise have happened, the raihvay 
 company would not be held responsible for such injury, (i) 
 The obligation to e.vercise ordinary care by the injured party 
 depends upon the particular facts and circumstances of each case. 
 So he is not bound to exercise tlie same degree of care, when 
 he has been induced by the action of the company's servants to 
 act in a manner he would otherwise not have done, a?, for 
 instance, where the raihvay company have by their servants in- 
 vited a passenger to embark on a train when it was not safe to 
 so embark. (2) Although negligence upon the part of the plain- 
 tiff may have in fact contributed to his injury, the railway com- 
 pany will nevertheless be liable, if its servants could by the 
 exercise of ordinary care have avoided the injury to the j)lain- 
 tiff. (3) The plaintiff's contributory negligence must, in order to 
 bar his recovery, have been a proximate cause of the injury. (4) 
 
 Injuiies ^* A railwav.company is liable for injuries suffered by a person 
 
 received while in attempting to escape from a situation of apparent peril, in 
 
 danger and which he has been placed by the negligence of the railway com- 
 
 inconvenien- pany, whereby he is forced to adopt one of two i)erilous alter- 
 
 ^^' natives (5) : as well as for injuries occasioned to a person in 
 
 attempting to avoid a serious inconvenience to him by acting in 
 
 a manner not necessarily dangerous ; (6) but not for injury to a 
 
 person attempting to avoid a slight inconvenience by a rash and 
 
 dangerous action. (7) 
 
 rh'iidren, etc. 0. Lunatics, idiots and children are to be held only to the 
 exercise of that degree of care and discretion which ought reason- 
 ably to be expected of persons of their age and capacity. (8) The 
 general rule is that it is a question of fact, under the particular 
 
 (i) Buttci field f. Forrester, il East 60; liridge 7. Grand Junction Ry.Co,, 
 3 M. iK: W. 244 ; MolTette r. G. 'I'. R. Co. , 16 L. C. R. 231 ; Roy ?■. G. T. 
 R. Co., M. L. R., I Q. H. 353. 
 
 (2) Hall .- . McFadden, Cassel's Digest 724. 
 
 (3) Davies r. Mann, lo M. vS: W. 546 ; Radlay r . I,. ^: N. \V. Ry . i App, 
 Cap. 7S4. 
 
 (4) Wiiherly r. Regent Canal Co., 12 C. H. N. S. 2. 
 
 (5) Jones r. Hoyce, i Starkie493; Wilson ;■. Newport Dock Co., L. R., 
 I Ex. 177 ; Adams ; . Lan. & Yorkshire Ry. Co., L. R., 4 C. R. 743. 
 
 (6) Adams r. Lancashire & Yorkshire Ry. Co., L. R., 4 C. P. 739. 
 
 (7) Bramwell, J., in Siner r. G. W. Ry., L. R., 3 Ex. 154; dee ?'. 
 Metropolitan Ry. Co., L. R., 8 Q. B. 161. 
 
 (8) Lynch :•. Nurdin, I Q. B . 29. 
 
 'r^^,^UtSS33tBtBBKBtBKi 
 
 ^m 
 
Negligence. 
 
 369 
 
 y 
 
 
 circumstances of each case, wliat amount of reason and discre- 
 tion ought to have been exercised by the injured infant ; (i) but 
 where the injured person is confessedly of average capacity, and 
 an infant only in legal theory, it is a question of law for the court 
 and not one of fact for the jury. (2) 
 
 10. When the injured person is an infant of tender years, it is Negligence 
 held in the United States that it is for liie jury and not for the "'^''^'^"'^" 
 court to determine wlielher or not the contributory negligence 
 
 of the parents or guardians of the intant, in permitting him or 
 her to be at large, would defeat the action. (3) The question 
 does not seem to have been directly raised in England, neither 
 Lynch v. Nurd in, (4) Sing/cton v. E. C. Ry., (5) Manga n v. 
 Attcrton, (6) nor IVaite v. N. E. Rjj., (7) definitely decide 
 the question. But in Quebec the parents' negligence has been 
 held to preclude recovery of damiges. (8) 
 
 11. The fact of the intoxication of the injured person at the time Intoxication, 
 of the injury will not only not relieve him from the legal conse- 
 quences of his contributory negligence, but also, if his intoxicated 
 
 state conkributed io the happening of the injury, will be admiss- 
 ible in evidence as proof of contributory negligence. (9) 
 
 12. The burden of proof is upon the plaintiff of showing affirm llunten of 
 atively negligence upon the part of tlie railway. (10) .Vnd in regard P''^"f- 
 
 to contributory negligence, the Knglish rule is, that if the plaintiffs 
 case has shown the railway to have been negligent, and the rail- 
 way relies upon contributory negligence as a defence, the burden 
 is on the railway of proving that contributory negligence. (11) 
 
 (r) P.iUersoM Ry. Acciilt. Law, )). 69. 
 
 (2) II)., pp. 70 71. < \) I'alleison, p. go. (4; i (^. H. 29. 
 
 (SI 7C.i5. N. S. 2S7. (6) L. R., 1 Ex. 239. (7) El. HI. ^S: El. 719. 
 
 (8) M. C. I'. Ry. Co. r. IJufrcsne, M. E. R., 7 Q. H. 214. 
 
 (9) I'.iUeison, Rly. Accdt. Law 74, and ca'ics there ciieil. 
 
 (10) I'aUerson, 433, Roy r. U. T. R., M. E. R., i (^. !i. 353; MolTetler'. 
 G. r. Uy. Co. 16 L C. R. 231. Ealconer r'. European & Norili Amer. Ry. 
 Co., I I'ui,' 179- 
 
 (11) Smith on Negligence — Patterson 435 ; D. \V. iS: W . Ry. :■. Slatlery, 
 3 Al>p. Cas. 115s. Hiu in Quebeo. see Moffette :■. ti. T. Ry. Co., 16 E. C. 
 k. 23 [. In Ontario held: In an action to recover damages for negligence, tried 
 with a jury, where contributory negligence is set up as a defence, the onus of 
 proof of the two issues is re.^paclively upon the plaintiff and defendant, and 
 though the judge may rule negatively that there is no evidence to go to the 
 jury on either issue, he cannot declare affirmatively that either is proved. 
 The question of proof is for the jury. Morrow r'. Can. Pac. Ry., 21 Ont. 
 
 A, R. 149. 
 
 24 
 
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 -I s:); 
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 Hill! : 
 
 :;|J 
 
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 km 
 
 Presumption 
 of negligence 
 
 The Court 
 and the jury. 
 
 370 
 
 The Railway Law of Canada. 
 
 13. There is a rebuttable presumption of negligence on the part 
 of the railway in the case of an injury caused by circumstances 
 from which may fairly be inferred a non-performance of duty on 
 the part of the railway, (i) 
 
 14, It is the duty of the judge to determine whether, as to each 
 issue before tiie jury, competent evidence has been produced, 
 which would justify men of reasonable minds in finding a verdict 
 in favor of the party upon whom rests the burden of proof in 
 that particular issue. (2) 
 
 In Ryder v, Wovihwcll, (3) Willes, J., said : " There is in 
 every case a preliminary question which is one of law, viz. : 
 whether there is any evidence on which the jury could properly 
 find the question for the party on whom the onus of proof lies. 
 If there is not, the judge ought to withdraw the question from 
 the jury, and direct a non-suit if the onus is on the plaintiff, or 
 direct a verdict for the plaintiff if the ouus is on the defendant." 
 In Bridges v. N. L. Ry., (4) Pollock, B., said, referring to 
 Ryder y. Wombiocll : "This is a clear expression of the rule, 
 and it has been generally acquiesced in, and acted upon, and it 
 follows from it that, although the question of negligence or no 
 negligence is usually one of pure fact, and, therefore, for the 
 jury, it is the duty of the judge to keep in view a distinct legal 
 definition of negligence as applicable to the particular case, and 
 if the facts proved by the plaintiff do not, whatever view can be 
 reasonably taken of them, or inference drawn from them by the 
 jurors, present a hypothesis which comes within that legal defini- 
 tion, then to withdraw them from their consideration." In Jack- 
 sou v. Metropolitan Ry., (5) Cairns, L. C, and Lords O'Hagan, 
 Blackburn and Gordon concurred in holding that Bridges' case 
 did not have the effect attributed to it in the Court below, of 
 qualifying the rule in Ryder v. Womb%vell, Cairns, L. C, say- 
 ing : "The judge has a certain duty to discharge, and the jury 
 
 (1) PatterFon 43S, C.nrpue 7'. L. iS: B, Ry., 5 Q. B. 747 ; Scctt v. L. & 
 St. K. Docks Co., 3 H. ^: C. 596 ; O. W. Ry. Co. r. Braid, i Moore P. 
 C N. S. loi; Chalifoux v. C. P. Ry. Co., 22 S. C. K. 721. 
 
 (2) G. T. R. V. Wilson, Cassel's Dig., p. 723; Can. Atl. Ry. Co. v. Mo- 
 seley, 15 S. C. K. 145. 
 
 (3) L. R, 4 Ex. 32. (4) L. R., 7 II. L. 213. 
 
 (5) 3 -f^PP- Cas. 193 ; and see Dublin W. & W. Ry. Co. v. Slattery, 3 App. 
 Cas. 1155. 
 
 '■ 1 
 
^1 
 
 Negligence. 
 
 37» 
 
 " have another and a different duly. The judge has to say 
 " whether any facts have been established by evidence from winch 
 "negligence may be reasonably inferred; the jurors have to say 
 " whether from those facts, when submitted to them, negligence 
 " ought to be inferred." 
 
 15. In so far as concerns the duty a person owes of observing The law of 
 ordinary care and skill in his relations towards others, the law of "^8''S^"^'-' '" 
 negligence in the Frovince of Quebec does not materially differ of (Quebec 
 from the rule prevailing in the other Provinces, (i) 
 
 The diversion between the two systems commences wiih the 
 doctrine of contributory negligence. In the earlier cases, l)efore 
 the Code, the English doctrine of contributory negligence was 
 fully recognized ; but, since the Code has come into force, 
 especially of late years, there has been a disposition on liic part 
 of the Courts to adopt the jurisprudence of the French Courts in 
 interpreting the articles of the Code Napoliion on the same sub- 
 ject. It must be remarked, however, that there is a distinction 
 to be made between Article 1053 of llie Quebec Code and Article 
 1382 of the Code Napoleon. Article 1053 of the Quebec Code 
 reads as follows : — 
 
 " Every person capable of discerning right from wrong is 
 responsible for the damage caused by his fault to another, whether 
 by positive act, imprudence, neglecl, or want of skill," whereas, 
 in the French Code, the governing words " by his fault " are 
 omitted. 
 
 The earliest case of importance in Quebec is that of Moffettc v> 
 Grand Trunk Ry. Co., (2) decided by the Superior Court in 
 Review in 1866. This was a case of injury at a highway crossing. 
 The holding there was that the party suing in damages, resulting 
 from imputed fault or negligence on the part of the defendant, 
 must himself be without any misconduct or fault, and have used 
 ordinary care; and that where an injury has resulted from the 
 negligence of both parties, more especially if without any v/anton 
 or intentional wrong on the part of either, the action will not lie ; 
 
 (I) Stephens 7'. Chausse, 15 S. . R. 379 ; G. T. R. f. Boulanger, Cass. 
 Dig. 734; C. P. K. Co. r. Chalifoux. Cass. Dig. 749; Lambkin v. South 
 Eastern Ry. Co., 5 App. Cas, 352. 
 
 (2) 16 L. C. K. 231. 
 
 i! Li 
 
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 r; 
 
 !« 
 
 ii 
 
 
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 ••j 
 
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 ii;3 
 
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 II 
 
 
 372 
 
 The Railway Law of Canada. 
 
 and that, though the defendant is guilty of negligence causing 
 damage to the plaintiff, yet, where the plaintiff is guilty of want 
 of ordinary care, conlrilniting essentially to the injury, he cannot 
 recover; and that the burden of proof is upon tiie plaintiff to show 
 negligence on the part of the defendant and freedom from negli- 
 gence on his own part. 
 
 In 1 87 1, it was held in Maguire v. The City of Montreal, (i) 
 that a municipal corporation is not responsible for damages 
 caused by obstructions left on the street, if the party injured 
 could have avoided the obstruciion by the exercise of ordinary 
 care. And the same princii)le, that the plaintiff's negligence 
 would defeat the action, was recognized by tlic Superior Court in 
 
 1874. (2) 
 
 In 1877, in Pcriam v. Doiiipicrre, (3) it was decided by the 
 Court of Appeals that, where the plaintiff, a carter, went to load 
 wood at a wharf in the port of Montreal, where a steamer was in 
 the act of mooring, and was injured by the snapping of a cable, 
 he was guilty of contributory negligence in not avoiding the 
 danger which was evident, and in unnecessarily placing himself 
 in a position of danger. In a later case, however, where an 
 accident arose from a similar cause, the Court of Appeals lield 
 that the action would lie, inasmuch as the person injured by tiie 
 breaking of the rope had been requested by the ship master to 
 cast it off the mooring post, and when injured was standing in a 
 posiiion that was necessary for him to occupy to perform that 
 act. (4) In this case, however, there was a strong dissent by 
 Ramsay and Cross, J. J., on the ground that the party injured 
 was guilty of contributor" negligence. 
 
 In 1879 it was held by the Court of Review that, in an action 
 of damages for injury suffered while walking on a railway trick 
 near a crossing, the plaintiff, owing to his contributory negli- 
 gence, could not recover. (5) This judgment was rendered by 
 Mackay, J., who quoted from Sherman and Redfield on Negli- 
 gence, as well as Sourdat on Rcspoitsabilltc. It is to be noted 
 thatSourdat, in cases such as these, lays down a doctrine which, 
 
 (I) 3 R.L.4S0. 
 
 (3) ' I- N. 5. 
 
 (4) Corner v. Byrd, M. L. R., 2 Q. Ii. 262 
 
 (5) Wilson V. G. T. Ky. Co., 2 L. N. 45. 
 
 (2) Ware v. C.iisley, 5 R. L. 238. 
 
NftiLUlF.NCE. 
 
 373 
 
 to llie extent to which it goes, is equivalent to tlie English rule ; 
 tiuis he says : (i) 
 
 " If the injured party has himself contrihuted to his injury by 
 a personal fault, this is a bar to his action " ; but he goes on to 
 say : " If it consists, only in imprudence, it is but fair that it should 
 set off against a like fault committed by the immediate agent of 
 the injury." 
 
 The decision in the IVi/son case was reversed by the Court of 
 Ajtpeals, (2) on the ground that the accident occurred through 
 the gross negligence of the company's servants, and this judg- 
 ment was confirmed by the Supreme Court. (3) 
 
 In another case, decided in i88r, (4) it was held that while a 
 persoil carrying on a trade is bound to have his premises in a safe 
 condition for persons coming there by implied invitation to give 
 him their custom, yet he may relieve himself from damages arising 
 from the unsafe condition of the premises by showing tiiat there 
 was contributory negligence on the other side, without which the 
 accident would not have occurred. And, therefore, where a 
 valuable horse received an injury wiiile being shod by a farrier, 
 and it appeared that the accident was caused by the groorn in 
 charge of the animal striking him with a whip, the farrier was 
 relieved from liability, notwithstanding that the horse was in- 
 jured partially through the unsafe condition of the floor of the 
 sni'lhy. This decision was based on the ground that the animal 
 could not have been injured in the way in which it was, had not 
 the groom caused it to plunge by striking it. 
 
 Under the jurisprudence in France, where the doctrine of com- 
 parative negligence obtains, it would seem that in sucli a case 
 as this the plaintiff would have been entitled to recover, but the 
 damages would have been reduced or compensated to some 
 extent by the contributory negligence of the defendant. (5) 
 Where, however, the negligence of the plaintiff is gross, and 
 
 (I) I Souidat 660. (2) 2 Uor., O. H. R 1 3 1. 
 
 (3) Cass. Dig. 722. 
 
 (4) Allan 7\ MuUin 4 L. N, 387. 
 
 (5) Cass., 20tii Aug., 1879 ; S. 80, I, 55 ; D. 80, 1,15; Cass., 5tli Aug., 
 1879; S. 81, I, 403 i D. 81, r, 268 J Cass., 8th Feb., 1875 ; S. 75, i, 204 ; D. 
 75, I, 320; I'aris, 4th Feb., 1870 ; S. 70, 2, 324 ; D. 70, 2, in ; Paris, 21st 
 Dec, 1874 ; I). 76, 2, 72 ; Caen, 17th Mar., 1880 ; S. 80, 2, 176 ; Nancy, 
 9th Dec, 1876; Aix, lothjan., 1877; Bordeau.x, 19th Aug., 1878. 
 
 Ill 
 
 
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 m 
 
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 liii 
 
 1 1 
 
 ill 
 
 374 
 
 'I'lir. Kaii.wav I, aw ok Canada. 
 
 that of the dtfeiidaiu is slight, tlic former cannot recover even 
 in l-'rancL'. (i) 
 
 'liie I'rLMich doctrine of comparative negligence seems to have 
 been adopted in a Quebec case, decided in the Circuit Court in 
 1883, (2) in which it was held that where a collision occurred 
 between two vehicles, and both drivers were in fault, but it ap- 
 peared that the accident nevertheless might have been averted l)y 
 ordinary care on tiie part of one of the drivers wiio did not stop 
 when requested, the latter was held liable in mitigated damages; 
 in tliis case the i)laintiff's contributory negligence consisted in 
 violating the rule of the road by driving on the wrong side, but 
 it appeared that the defendant could have avoided the accident 
 by the use of ordinary care. • 
 
 In a subsequent case decided by the Court of Appeals in 18.S5, 
 wliere the plaintiff was injured on the railway track at a street 
 crossing, it was held that he must show that the company were 
 guilty of some fault or negligence, whereby the injury was caused ; 
 and having attempted to cross, notwithstanding that the warnings 
 and signals required by the Act had been given, plaintiff could 
 not recover for consequent injury. (3) 
 
 The true rule in such cases, it apjjears to the author, would 
 be to ascertain v/hether tlie proximate cause of the injury is due 
 to the negligence of the plaintiff or the defendant; and if it be 
 ascertained that the proximate cause of the injury is the negli- 
 gence of the plaintiff, without the occurrence of which he would 
 not have been injured, it is difficult to see how, under Article 1053, 
 the defendant could be held liable, even if there was also fault 
 upon his part, so long as his fault was not the proximate cause 
 of the injury. (4) The rule thus stated would seem to be in 
 accordance with the principles deducible from Article 1053 of 
 the Civil Code ; and, thus stated, would not seem to differ mate- 
 rially from the iMiglish doctrine of contributory negligence, 
 though that doctrine is not technically known to the Qiiei)ec 
 
 (I) Cass., 151I1N0V., 18S1 ; Sirey S3, I, 402 ; Laioml)ii;ie vol. 7, ji. 560; 
 Sourdat, Respons.ibiliiL', No. 660. 
 
 12) 'flieirieii 7'. Monice, 6 I,. N. I lo. 
 
 r3) Roy ;■. (;. T. K. Co., M. I.. K.. I Q. 11. 353. 
 
 (4) C. 1'. Ry. Co. 7'. Cadieux, M. I.. K., 3 o". I!. 315; Ali.nn :■. Mer- 
 chants Marine Ins. Co., 18 R. I.. 481 ; Curiie "'. Couture, 19 R. I.,. 443 ; 
 .Saiault :■. Viau, 11 R. L. 217 ; (jagnon -\ I'oisylb, 5 R. L. 228. 
 
Ne(;lk;i:nc:k 
 
 375 
 
 law. Tliis view li;is iio.v been adopted by llie Siipreinc Court in 
 the case of The Quebec Central Ky. Co. v. Aor/ie. (i) In tliis 
 case the defense was contril)Utory negligence of plaintiff in 
 alighting from the train, and the court sustaineil tiie defense. 
 (^Fonniier J. Diss). 
 
 As was stated by Ramsay, J., in tlic Court of Appeals, in 
 Kiuc/ier v. North Stiore Ry . Co.., (2) in discussing the difference 
 between the Civil and Common Law doctrines, the difference 
 between them is not so great as is generally sui)|)oscd ; as the 
 learned judge there said : " In the French jurisprudence they 
 " have not precisely in so many words the doctrine of contributory 
 " negligence which throws the responsibility on the sufferer, but 
 " they have the idea, as will be seen in the note in Sirey." (3) 
 In this case it was held that a line of railway running alongside 
 of a street, and not divided by any fence from the street, is not 
 a rnad on whicli foot passengers are entitled to the same protec- 
 tion as if they were walking on the ordinary highway, and a 
 person who was injured by falling over some planks lying on the 
 track, whicii !ic might have avoided by the exercise of ordinary 
 care, had no action against the compiny. 
 
 The doctrine contended for is supported by the decision of the 
 Court of Appeals in 1887, in a case of the The Canxitian Facific 
 Ry. Co. V. Ciuiieiix. (4) The iiolding there was, that where the 
 injury was caused by the negligence of the defendant, and there 
 was negligence also on thj part of ihe plaintiff, it is the duty of 
 the Court to ascertain the immediate or proximate cause of the 
 accident, and to condemn its author to pay the damages suffered 
 by the other party. In that c.xse, however, the Chief Justice (Sir 
 A, A. Dorion) in delivering judgment said: '■ Although the ma- 
 " jority of the Court is not disposed to alter the judgment of the 
 " Court below" (in plaintiff's favor), '' it is my opinion tlial where 
 " botii parties are in fault, the damages sho.ild be divided bet- 
 '•' ween them; this was the rule of the Romm l.iw, as it is that 
 " now followed in France, and is applied in England in Admiralty 
 
 (1) 22 .S. C. K. ^36, reversing S. C 6!: t^. 15. ; not reporlel. 
 
 (2) 9 b. N.75,n. 15. .jue. 1886. 
 
 {\) .Sirey Cole-i Annotcs, Arliole [382 C X., \o. 533 : and see Sirey S3, 
 
 1,402. 
 
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 The Railway Law of Canada. 
 
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 " cases. However, the rule has never been adopted in this coun- 
 " try, ahhough I think it is the better rule." 
 
 Notwilhstandinrr this statement by tlie learned Chief Justice, 
 that the French r .U. of mitigating the damages in cases of com- 
 mon fault has never been adopted in this country, it was recog- 
 nized in a former case by the Superior Court in 1886, (i) and in 
 a later case, (2) decided in 1889 by the Superior Court !n Re- 
 view. There the plaintift's husband tried to cross a railway track 
 at intersection with the highway ; he was warned by the gate- 
 keeper not to cross, i)ut persisted in so doing, the gale was 
 closed; it was daylight, the engine bell was ringing, and the 
 approaching train could be seen for three-quariers of a mile 
 from the point of intersection. The jury found for plamtiff, but 
 the Court of Review granted a new trial on the ground ihatthe 
 verdict was against the evidence. The trial judge, however, in 
 charging the jury, had admitted the principle of mitigated dam- 
 ages, and his charge seems to have been approved by the full 
 Court. 
 
 In another case in the same year (3) 'he judges were equally 
 divided. In that case the plaintiff was driving in a cart with two 
 men, and was leading two horses behind the cart by a rope or 
 halter twisted around his thumbs ; two of tiie defendant's dogs 
 rushed out, their barking iVightened the horses, with the result 
 that part of the plaintiffs thumb was torn off. In the first 
 Court, the Judge sitting without a jury found for the plaintiff in 
 five hundred dollars damages, tlie amount being reduced to that 
 sum on the ground of his contributory negligence in leading the 
 horses in the way in which he did ; but in the Court of Review, 
 the judgment was reversed, and the action dismissed, Wurtele, 
 J., dissenting. The Court, however, allowed no costs, in order 
 to discourage the habit wliich existed in the country of keeping 
 vicious dogs, which flew out at persons passing by. 
 
 In two more recent cases, however, the principle of reducing 
 the damages where there is common fault was recognized and 
 applied in the Superior Court. In one of these cases, that of 
 
 (1) Daou'-t f. Laverdure, 14 R. L. 279. 
 
 (2) Cunan v. G. T. Ry. Co., M. L. R., 5 S. C. 251. 
 <3) Vital 7'. T^ireault, 34 I . C.J. 26. 
 
 MM 
 
Negi-igence. 
 
 377 
 
 White \. The City of Montreal, {\) the holding was " that a 
 municipal corporation cannot escape responsibility for tlie con- 
 dition of a road rendered dangerous by a sudden thaw and sub- 
 sequent frost; but where the person injured undertakes to venture 
 down a steep hill in winter time without creepers and wearing 
 well worn rubbers, such imprudence on his part having contri- 
 buted to the accident must go to mitigate the damages." In the 
 other case decided in the same year, it was held tliat, where 
 there is common fault on the part of the master and his servant, 
 the master is still liable, but the fault of the servant is to be con- 
 sidered in determining the quantum of damages. (2) 
 
 The above summary of the jurisprudence in the Province of 
 Quebec shows the unsettled state of the law ; and some authori- 
 tative decision of the higliest Courts is needed to set the question 
 at rest. The decision of the Supreme Court in Quebec Central 
 Ry. Co. V. Lortie (3) might be regarded as such, but that their 
 Lordships, with the exception of the dissenting judge (Fournier 
 J.) and Gwynne J. gave no reasons for allowing the ap]ieal, and 
 tiie hitter's opinion was based solely on tlie ground that the 
 accident was attributable wholly to the plaintiffs' own negligence. 
 However, a recent decision of tlie Court of Appeals would 
 seem to go far in deciding that the negligence of the injured 
 party, or of the persons responsible for his acts, nu'ght defeat the 
 action. (4) It was there held that, where a child two years of age 
 accidentally escaped from the surveillance of its mother, and 
 straying into the street got in the way of an approaching street 
 car, and was run over and killed, the parents could not recover; 
 and the Court of Api)eals dismissed the action, reversing the 
 judgment of the Superior Court. (5) In this case it was proved 
 that the child had strayed once or twice before from its mother's 
 dwelling into a shop below, and had it not (jeen noticed by per- 
 sons in the shop, might have wandered into the street and been 
 
 (1) Q. K., 2 S. C. 342, 1892. 
 
 (2) I'ontus dit Clement 7'. Kcnisscau, (K R, 1 S. C. 263; hut see Des- 
 roclies '■. Gautliier, 5 L N. 404 ; Si, Lawionce Sugar Refining Co. ''. Camp- 
 bell, M. I, R , I Q. 15. 290 ; Dominion Oil Clotli Co. r.Coallier, M, L. R., 6 
 Q.B. 268. 
 
 (3) 22S. C.R.336. 
 
 (4) Montreal City Passenger Cy. Co. r . Dufresne, M. L. R., 7 Q. B , 214. 
 
 (5) lb. reversing M. L. R,, 7 S. C. 10. 
 
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 The Railway Law of Canada. 
 
 injured, as it eventually was; it was held, that the parents 
 should have profited by the warning they had already received, 
 and were prechided by their negligence from recovering dam- 
 ages by the death of ihe child. It is true tliat in this case the 
 Court held that there was no negligence on the part of the de- 
 fendants ; though there was evidence adduced on the part of 
 the plaintiffs that the car was running too fast, and that the 
 driver should have seen the child and stopped the car before he 
 did ; still, it is difficult to see liow the Court could have re- 
 versed the judgment of the trial Judge, who found negligence on 
 the part of the defendants, except upon the ground of the negli- 
 gence of the i)arents. 
 
 Injuries u) 1(J, 'phe next question to be taken up is that of the liability of 
 
 persons on Ihe ■, • • ^ . . . , . 
 
 railway track '''I'l^vny companies in cases of injuries caused to persons upon 
 
 the railway track injured by passing trains. With regard to this 
 class of accidents, attention must be called to the provision of 
 the Act, whi<h prohibits every person not connected with the 
 railway or employed by the comiiany from walking along the 
 track excejjt where it is laid across or along a highway, (i) It 
 would follow clearly from this, that in the case of a jierson walk- 
 ing upon the track, the company would not be liable in damages 
 to him for injuries received by being struck by a train, or to his 
 representatives in case of his resulting death, in the absence of 
 negligence on thj part of pers mis in charge of the train. It 
 would be difficult to conceive of a case of negligence on the part 
 of the driver of the engine or other person having control of the 
 train in such cases. It would of course be the obvious duty of 
 the engineer seeing a person walking upon the tra( k to sound 
 the whistle, ring the bell, or make other signal to attract his at- 
 tention, but it is doubtful whether the omission to give such 
 signals would render the company liable to such a person un- 
 lawfully upon the track. If, however, the company's servants in 
 charge of the train had failed to comply with any of the require- 
 ments (if the Act, the company might be held liable in certain 
 supposable cases. For instance, it is required by sec. 259, 
 that no locomotive shall pass through any thickly peopled por- 
 tion of any city, town or village at a speed greater than six miles 
 
 (I) Sec. 273. 
 
 
Negligknce. 
 
 379 
 
 1 
 
 an hour, unless the track is properly fenced, 'j'his of course 
 would mean that the track is fenced on both sides, with proper 
 gates at street or highway crossings, and in the case where this 
 provision of the Act was disregarded, and it was shown that tl^.e 
 accident resulted from such disregard of the positive provisions 
 of the law, the company might be held liable. Again, by sec. 
 260, it is required that trains moving reversely in any city, town 
 or village shall have a man on the last car of the train to warn 
 persons standing upon or crossing the track of the approaching 
 train. A disregard of this provision of the Act would doubtless 
 render the company liable in case of an accident resulting in the 
 injury of any person on the track, (i) 
 
 The cases which most frequently occur, however, are those cf 
 accidents at level crossings, where the railway crosses streets or 
 highways at rail level. The frequency of sucli crossings in this 
 country has resulted in large numbers of unfortunate accidents, 
 nowtithstanding the provisions of the Railway Act intended to 
 prevent as far as possible their occurrence. By sec. 256 cf 
 the Act, provisions are made for signals to warn travellers on 
 the highway of the approach of trains at such crossings. It is 
 required that the bell of the engine, wh.ich by sec. 244 must 
 be of at least thirty pound weight, sliall be rung or the wliistle 
 sounded at the distance of at least eighty rods from every high- 
 way crossing, and the bell must be kept ringing or the whistle 
 sounding at short intervals until the engine h is crossed the higit- 
 way ; and the same section provides a penalty of eight dollars 
 for each neglect to comply wiiii its provisions, and further makes 
 the company liable for all damage sustained by any person i)y 
 reason of such neglect. And it is to be noted tliat one-luilf of the 
 penalty and damages are chargeable to the engineer who neglected 
 to sound the whistle or ring tiie bell, and may be collected from 
 him by the company. Such are the duties cast upon tlie railway 
 company by the Act in order t-^ prevent, as far as possible, 
 such accidents from occurring, in addition to the provisions 
 of sees. 183 to 191, with reference to the crossing of highways, 
 and the powers given to the railway committee to take meas- 
 ures of precaution with regard to Ijvel crossings. Where tiie 
 
 (I) See Cany '■. C. V. K Co., Ij (). R 574. 
 
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 380 
 
 The Railway Law of Canada. 
 
 crossing is especially dangerous, the railway committee may, 
 if it permits the crossing at a level at all, order the erection of 
 gates or the posting of watchmen, or other protection ; but un- 
 less the railway committee so orders, the absence of such pro- 
 tection would not be an element in deciding upon the liability 
 of the railway company; (i) their liability in all sucii cas^;b 
 would depend first upon the question as to whether they or their 
 servants were guilty of negligence. 
 
 The omission to comply with the statutory regulations as to 
 the giving of signals is always an important element in determin- 
 ing tl,^ liability in such cases, but there is also a duty cast upon 
 the traveller using the highway and crossing the railway, which 
 is of great importance in the decision of such cases. A railway 
 train cannot be stopped except within a certain distance, accord- 
 ing to the velocity at which it is being propelled, whereas the 
 traveller on foot or in a vehicle can easily come to a halt in ap- 
 proaching a railway crossing. In these cases, it is always the 
 old question as to whose fciuit it is that an accident occurs. If 
 a man, either on foot or driving or riding, goes blindly upon a 
 railway crossing, wiihout looking either to the right or the left, 
 and taking no heed, it would be hard to say that the railway 
 company should be liable, should he be struck by a passing 
 train. It is the generally accepted principle that the duty cast 
 upon the traveller in approaching a railway crossing by the high- 
 way is to make use of his senses of sight and hearing, and both, 
 to look and listen for an approaching train, — that is to say, that 
 he is bound to listen for the signals and to look both ways up 
 and down the track, to see if a train is approaching ; and if lie 
 neglec'.s these precuitions and goes blindly upon the track, and 
 is injared or killed, he himself is the cause of his own misfortune, 
 and this as has been held even in the case of the omission to 
 give the signals by the engineer in charge of the engine. (2) 
 Tnis doctrine was long ago laid down by the Court of Appeals 
 for Q.iebec in the C3ise of Mjfd/e v. Tnc Grand Trunk Rail- 
 way Company, (3) and has since been recognized in a large 
 
 (1) Per Patterson J. in C. P.Ry. Co. r. Fleming, 22 S. C. R., at p. 44 ; 
 Stubley v. Lon. & N. W. Ry. Co., L. R., i Ex. 13, 20. 
 
 (2) Davey r. London & N. W. ky- C )., L. R., 12 Q. ». D. 70. 
 
 (3) 16L.C.R. 23r. 
 
 
Negligencf. 
 
 38* 
 
 >^ 
 
 number of decisions of our Courts, and is ilie universally adopted 
 doctrine in England and in the United States. It is unnecessary 
 to go into a discussion of the numerous reported decisions, 
 though some mny be given as examples, for every such case de- 
 pends upon the state of facts as disclosed by the evidence, and 
 there aie few cases which come before our Courts in wiiich 
 greater conflict of evidence will be found than in cases of this 
 class. As a rule, a number of witnesses can be brought to swear 
 that, though within hearing distance, ihty did not hear the sig- 
 nals required by the statute ; while the engineer and the fireman 
 of the train will generally be brought to swear that the signals 
 were given. In such a case, according to strict rules of evidence, 
 the l)0!^itive testimony that the signals were given should oul- 
 weigii the negative evidence of those who did not hear them ; 
 but inasmuch as the engineer is statutorily liable for one-half 
 the penalty and damages, little weight is, as a rule, whether 
 rightly or wrongly, given by juries or judges to his evidence; 
 and a like suspicion is generally cast upon the evidence of the 
 fireman, whose special duly it is to ring the bell, as neglect of 
 such duty would in most cases lose him his position. If inde- 
 pendent evidence can be brought, even of one or two witnesses, 
 to the effect that they heard the signals given, there is no doubt 
 that the correct rule would be to hold that their affirmative evi- 
 dence would outweigh the negative testimony of any number of 
 witnesses who had sworn that they had not heard the signals, 
 (i) It is evident that the decision of such cases as these depends 
 more upon questions of evidence than of law, for the principles 
 of law are clear enough and are the same as govern most cases 
 of personal injuries, that is to say, that it is purely and simply a 
 question as to which party is in fault, according to the weight of 
 the evidence. 
 
 As illustrating the practicable application of these principles, 
 some of the reported cases may be here referred to. 
 
 In the case of injuries caused by collisions between the com- 
 pany's engines and persons crossing the track in carriages or on 
 foot at the intersection of highways, each is exercising an equal 
 
 
 (l) But, as to setting aside the verdict of a jury on tlese ground", see 
 Dublin, Wicklow & \V. Ry. Co. ?■. Slatiery, 3 App, Cas, 1155. 
 
 \4l 
 
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 3S2 
 
 The Railway Law of Canada. 
 
 11 ! ': 
 
 legal right independent of any contract or favor extended by 
 the one to tlie other. The duty of each under such conditions 
 is 'o I' ordinary care in the exercise of his own right to avoid 
 ini . .1 the other. If, notwithstanding such care by both 
 ])rii 0; "ijury happens, it is a misfortune which must be borne 
 by tlie sufferer alone, (i) 
 
 l •■': not neressary, in order to recover, that the injury should 
 liiive oci.> rted i..^ ..ctui'l collision with an engine or train cross- 
 ing a highway. (2/ '..'Here need be no impact, (3) provided 
 that the injury is the direct and immediate result of the com- 
 pany's negligence. So where a horse takes fright at a passing 
 engine, and, by reason of the defective state of the highway, 
 damage is sustained, the remedy would be against the party by 
 whose act or neglect the highway was insecure, in this case the 
 railway company. (4) And where the engineer neglects to ring 
 the bell uniil just upon the crossing, the sudden ringing of 
 which frightens the plaintiffs horse, which was not being negli- 
 gently managed, the company will be held liable. (5) In another 
 case, a little boy was standing on a snowbank on the side of the 
 track where it crossed a street. He saw the rain approaching, 
 and when it came opposite to where he was, it gave a jerk, which 
 frightened him^ and he slipped down on to the track, where he 
 Avas run over by the train and injured. It was held that the 
 omission to sound the whistle or ring the bell did not impose any 
 liability on the defendants, as it in no way contributed to the 
 accident. (6) 
 
 The authority to operate a railroad includes the right to 
 make the noises incident to the movement and working of its 
 engines, as in the escape of steam and rattling of cars ; and also 
 
 (1) Hender r. Canada Southern Ry. Co.., T,y U. C. Q. H. 25 ; and see 
 Brand z\ Schenectady ^Si l". Ry. Co., S IJaib 368 ; MotFetle r'. G. J'. R , 16 
 L. C. H. 231. 
 
 (2) G. I". R. V. Sibhald, 20 .S. C. R. 259; following G. '1'. R.7'. 
 Uosuibeiger, 9 S. C R. 311. 
 
 (;,) But stc Atkin-ion f. G. T. R., 17 Ont. 220; Rock -'. Denis, M. L, 
 R.4 S. C. 134, conliimtd in review M, L. R. 4 S. C. 356. 
 
 (4) G. T. R 7\ Sihhahl, 20 .S.C. R. 259 ; and see Tomsf. Townsliip of 
 Whiihy, 35 U. C. Q. B. 195; 37 U. C. (^. B. 100 ; Sleinlioflf -'. Ccrpora- 
 tion of ken% 14 Ont. App. 12. 
 
 (5) G. T. R.f. Rosenbeiger, 9 .S. C. R. 311; C. P. R. 7'. Lawson, 
 Cassel'sDig. 731 (1893). 
 
 (6) Shoebrii k ?■. Can. All. Ky. Co., 16 O. R. 515. 
 
Negligence. 
 
 3^3 
 
 to give the usual and proper admonitions of dnnger, as in tiie 
 sounding of whistles and tiie ringing of bells. And they are not 
 liable for injuries resulting from fright caused by such sounds. 
 But if the injury resulting from the fright would not have hap- 
 pened but for a breach of duty by the company, it will be liable 
 for the injury. Thus if it neglected to give the signals prescribed 
 by statute, and thereby the traveller was brought into close 
 proximity to the train and his horse became frightened, it is 
 liable for the consequences, (i) 
 
 Mr. Justice Patterson, in a lengthy dissenting opinion in the 
 case of C. P. Ry. Co. v. Flein'ih:^ (2) expressed the view that the 
 English cases, relating to the degree of care to be exercised by 
 railway companies in passing crossings, were not applicable to 
 our country, owing to the differences created by our legislation, 
 especially as to giving warning by bell or whistle. In tie court 
 below, it appears liiat judgment proceeded on the idea tiiat some 
 level crossings may be peculiarly dangerous, and that at them the 
 statutory signals may be insufficient. But the learned judge, 
 dissenting in the Supreme Court, thought that when the company 
 liad adhered to the requirements of the statute, that was, under 
 tlie circumstances of the case, sufficient. The majority of the 
 Court, however, upheld the decision of the Court below, without 
 going into details. (3) The accident in this case occurred 
 at a city crossing ; the arm of the gate which barred the crossing 
 was raised at the time, and could not be brought down owing to 
 the frost, but the signal man had gone on to the track, and 
 seeing plaintiff's approach at a dangerous moment, waved his 
 lantern and shouted to him. The plaintiff said he did not see 
 tlie light or hear the bell. The defendants had kept down their 
 speed to six miles an hour, and had properly rung the bell. The 
 company were nevertheless held liable. 
 
 (1) I'ieice, 348 ; Robeitfon v. Halifax Coal Co., 20 N. S. 517 ;Noitun v. 
 Ba-tein K. R. Co., 113 Mass. 366 ; Prescolt r. Eastern R. R. Co., 113 
 Mass. 370; Shaw v. Boston &. \V. R. Co., 8 Gray 45 ; I'ollock r . Kastein 
 R. Co., 124 Mafs. 158 ; rciin R, Co , :•. Barnelt, 59 Fa. St. 259 ; I'liil. W. 
 & I!. R. Co. r'. Stinger, 78 Pa. St. 219 ; Hudson r. L. &. N. R. Co., 14 
 Bush 303. 
 
 (2) 22 S. C. R. at pp. 43-44 ; and see per Patterson & Rose, J. J., i» 
 Peart r. G. T. R. Co., 10 Ont. A. R. 191. 
 
 (3) The (2uebec case of G. T. R.f. Godbout, 6 Q. L. R. 63, is to the 
 same effect. 
 
 
 I I 
 
 
384 
 
 The Railway J. aw of Canada. 
 
 ^ 
 
 As to the conflict in the American decisions on this point, Mr. 
 Patterson in liis work, on Railway Accident Law, (i) favors the 
 view taken by the dissenting judges in the above case. 
 
 Sec. 256 of the Raihvay Act applies to shunting in a station 
 yard. (2) 
 
 It appears that the rule which has prevailed in the State of 
 Pennsylvan'a, which requires that a person about 10 cross the 
 track must " stop," as well as look, and listen for an approach- 
 ing train, is not applicable to our country. The circumstances 
 of every case differ from the circumstances of every other case, 
 and it is impossible to frame a hard and fast rule applicable to 
 every case. (3) The traveller is bound to look not only for 
 regular trains and those stated in time tables, but as well for 
 extra trains, or any trains beyond time. (4) 
 
 Where the defendants were negligent in not fencing a cross- 
 ing, and thereby disregarded a statutory duty, yet if the proxi- 
 mate cause of ihe accident was plaintiff's own negligence, he can- 
 not recover. (5) In the following case plaintiff showed negli- 
 gence by driving on to the track without looking for the train, 
 and while attempting to save his oxen was struck himself. The 
 bell used by the defendants was an automatic one, but there was 
 evidence that these bells do not always ring when the train is in 
 motion, and that it was not ringing at the time of the accident. 
 It was held, the Chief Justice doubting, tiiat there was evidence 
 of negligence for the jury. (6) In another case, where the 
 plaintiff had approached and attempted to cross the track at a 
 trot, without looking out, though he could have seen along the 
 
 (1) p. 162, s. 164. 
 
 (2) Ilollinger 7\ C. 1'. R., 20 Ont. App. 244 ; Casey :■. C. P. R., 15 
 O. R. 574. 
 
 {},) Aimour, C. J., in Holliiiger v. C. I*. K., 21 O. K. 710. 
 
 (4) Winckler 7'. Clieat West. Ry. Co., 18 U. C. C. P. 266; .Slubley f. 
 London, etc., Ry. Co., L. R., I Ex. 13 ; Wilcox r.'. Kome, W. & O. R. Co., 
 39 N. Y. 358 362 ; Sillier ?•. Utic.a & B. R. R. Co., 75 N. V 273. 
 
 (5) Winckler ?■. G1e.1t West.Ry. Co., 18 U. C. C. P. 251. 
 
 (6) Wilton '■. Noiihein W. R. Co., 5 O. R. 4yo ; Peart z: G. T. R., 10 
 Ont. App. 191 ; G. T. R. f. Godbout, 6Q. L. R. 64 ; and see Davey t. Lon- 
 don & S. W. Ry. Co., L. R. 12 Q.B. U. 70 ; Johnson f. Northern Ry. Co., 
 34 U. C. Q. 15. 439 ; Ulake r . C. P. R., 17 O. R. 177 ; Wei. v. C. P. R., 
 16 Ont. App. 100; Miller f. G. T. R. Co., 25 U. C. C. P. 1*? ! ■. Hoggs r. 
 Great West. Ry. Co., 23 U. C. C. P. 573 ; G. T. R. 7: Ros>.;bcrger, 9 S. 
 C. R. 311 i G. T. Ry. Co. r. Heckett, 16 S. C. R. 713. 
 
^^w 
 
 Negligknce. 
 
 385 
 
 fr. 
 
 lie 
 
 on 
 
 of 
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 :h- 
 
 line in eitlier direction, it was held he could not recover, the 
 defendant's i)osition not being affected by their allowing cars to 
 be on a siding, obstructing the view while the train was passing. 
 (i) But where a freight car was allowed to remain standing 
 for an unreasonable time upon the crossing within the limits of 
 the street, the company will be held liable for damage to a 
 traveller by reason of his horses becoming frightened and un 
 manageable on account of it. (2) 
 
 It has been questioned whether an engine and tender con- 
 stitute a train within sec. 52 of R. S. C, ch. 109, so as to require 
 a man to be stationed on the rear thereof to warn persons of their 
 approach ; (3) and an attempt appears to have been made to 
 cover the point by an amendment to the present Act, (4) which 
 does not, however, seem to be broad enough, for though the 
 words " engine and tender " have been added, the provision 
 still applies only to "a train of cars moving reversely," with the 
 engine and tender in the rear of such train. In all these cases, 
 there is something more to be considered than tiie value of a pair 
 of horses, or even than the life of the driver, and that is, the 
 safety of passengers lawfully using the railway, whose lives are 
 at least of equal value. (5) 
 
 Where a railway company crosses a highway, the duty of the 
 company is not merely to provide a crossing upon which the rails 
 do not rise more than one inch above or sink one inch below the 
 level ; but it is also the company's duty to construct and maintain 
 such approaches as may be necessary to enable persons using 
 the highway to avail themselves of the crossing. (6) Therefore, 
 where a railway company laid a plank 14 feet long outside the 
 rail, and did not grade the road up to the plank at one end of it, 
 but left the ends of the lies exposed, it was held that the com- 
 pany were liable for an accident occurring to the plaintiff's mule, 
 
 (1) Johnson 7\ Northern Ry Co , 34 U. C. Q. 13. 432 ; see also Nicholls 
 7\ Great West. Ry.Co., 27 U. C.<). IJ. 382 ; see also Kastiick ?'. Grc.it West. 
 Ry. Co., 27 (J. C. Q. H. 396; Weir r. C. P. R., i60nt. App. 100 ; C. P R. 
 Co. 7\ f;haieauvert, 16 R. L. 28 (Q. B.) ; Casey 7\ C. P. R. Co., 15 O. R. 
 574. 
 
 (2) Desrousseau v. Boston & Maine, 34 L. C.J. 252. 
 
 (3) Casey 7\ C. P. R., 15 O. R. 574. 
 4) 55-56 Vic, cap. 27. 
 
 (5) Miller 7'. G. T. R., 25 U. C. C. P. 396, Hagerly. C. J. 
 
 (6) G. T. R.J'. Sibbald,2oS. C. R. 259 ; Moggy 7.\ C. P. R., 3 Man. 209. 
 
 25 
 
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 386 
 
 The Railway Law ok Canada. 
 
 by reason of the whiffletree catching upon one of these ties, (i) 
 'J'hc company having made a crossing of plank 14 feet wide 
 siiould have provided for the grading of the approaches being 
 the same width, and not left them sloping off on each side of 
 the grading within that width. 
 
 The case of Fauchcr v. North Shore Ry. Co., (2) decided in 
 tlie Province of Quebec, shows that the jurisprudence of that pro- 
 vince is not very clear on this point. The duty of the company 
 to use the best system of brakes and other appliances for stopp- 
 ing trains is not confined to the carriage of passengers, but ex- 
 tends to persons rightfully using or crossing its tracks. (3) 
 
 Obstructing l^^. By sec. 273 no person is to walk on the line of railway, 
 ruptln/fiee except where same is laid across or along a highway, under a 
 use of railway, penalty upon summary conviction not exceeding ten dollars. B., 
 without the consent of a railway company, took a trolley or hand- 
 car belonging to them, and ran upon the railway for a number of 
 miles, at a time when, ordinarily, no train was reasonably to be 
 expected to be running upon that part of the road. It was heH 
 by the Supreme Court of New Brunswick that he was guilty of 
 " obstructing and interrupting the free use of the railway " under 
 sec. 86 of the Dominion Act, 42 Vic, c. 9, though his doing so 
 did not actually interfere with any train. (4) Foot passengers 
 are to use foot-bridge if provided, (5) under penalty often dollars 
 for offending against this provision. 
 
 Another species of accident is that of collisions occurring at 
 the crossing of two railways. There are provisions in the Sta- 
 tute intended to prevent, as far as possible, the occurrence of 
 such accidents. By sec. 257 it is provided that at every 
 point where two railways cross each other at rail level, an offi- 
 cer must be stationed, and no train is allowed to pass over 
 such crossing until a signal has been given that the way is clear. 
 As an additional precaution, by sec, 258, every train or 
 
 (1) Moggy r. C. P.R , 3 Man. 209; see also The People w. N. Y. Cent. & 
 H. P. R. Co., 74 N. Y. 302. 
 
 (2) Q L.N. 75 (1886), Ramsay J. (Q.B.). 
 
 (3) Smith 7'. N. Y. & 11. R. R. Co., 19 N. Y. 127 ; Gagg v. Vetter, 41 
 Ind. 228. 
 
 (4) Reg. V. Browneil, 26 N. B. 579. • 
 
 (5) Sec 274 Ry. Act. 
 
Negliuknce. 
 
 387 
 
 [de 
 
 |"g 
 of 
 
 in 
 iro- 
 jny 
 )p. 
 
 a 
 
 engine is required to stop for at least one minute before cross- 
 ing the track of any other railway, willi the exception that where 
 an interlocking switch and signal system or other device is used, 
 which, in the opinion of tlie railway committee, renders it safe 
 for engines and trains to pass over the crossing without stopping, 
 the committee may give permission in writing to pass without 
 stopping, under such regulations as to speed and other matters 
 as the committee deems proper; but the order giving such per- 
 mission may be modified or revoked at any time. Any failure on 
 the part of the railway company to comply with those provisions 
 of the Act would undoubtedly render them liable for any loss or 
 damage resulting from an accident occurring in consequence. 
 
 It has been held by tiie Supreme Court, that it is negligent for 
 an engineer not to a[)ply the air-brakes at a sufficient distance 
 from the crossing to enable tlie train to be stopped by hand- 
 brakes in the case of the air-brakes giving way, (i) In another 
 case, defendants' railway crossed the track of another railway on 
 the level, and both were bound by statute to stop at least a min- 
 ute before crossing, but neither did so. Defendants' line was 
 signalled as clear, and their train, in which the plaintiff was a 
 passenger, went on without stopping. The other line was sig- 
 nalled as not clear, but the train on it ran on, disregarding this 
 signal, and struck the defendants' train at tiie crossing, whereby 
 the plaintiff was injured. If either train had pulled up 
 about two seconds sooner, the collision would have been avoided. 
 It was held that the defendants were liable to the plaintiff, for 
 that their neglect to stf..p the required time was, as far as the 
 plaintiff was concerned, a part of the cause of his injury and 
 sufficiently proximate. (2) And there seems no doubt that as 
 between themselves the negligence of the defendant company in 
 not stopping the regulation time before crossing, although the 
 line was signalled clear, was not sufficient to clear the otiier 
 company from the results of its negligence, because by the exer- 
 cise of care on their pnVw they would have avoided the conse- 
 quences of the defendants' neglect or carelessness. (3) 
 
 With reference to railway accidents generally, attention should 
 
 (l) Gre.nt Western Railvvciy Company v. Brown, 3 S, C. R. 159. 
 2) Gr.iham t. Great Western Railway Company, 41 U. C. Q. li. 324. 
 (3) Ibid. 
 
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 Inju ies to 
 employees. 
 
 388 
 
 The Railway Law ok Canada. 
 
 be called to sec. 243 of the Act, providing tliat passenger 
 trains shall be provided with such known ajiparatus and arrange- 
 ments as best afford good and siiflicient means of immediate com- 
 munication between the conductors and the engine drivers while 
 the trains are in motion, and good and sufticient means of apply- 
 ing the brakes loth to the engine and to the cars, by means of 
 steam or otherwise, and of disconnecting the engine or any ot the 
 cars from each other, and also the best ap])aratus and arrange- 
 ments for securely fixing the seals or chairs in the cars. And the 
 company is subject to the orders of the railway commiuee wi 
 reference to such appliances, and may be comielltd to alter the 
 or supply new ones from time to time. The company are subject 
 to a penalty of $200 for every day during which they are in 
 dcfiiult to comply with the provisions of this section, besides their 
 liability in damages to all persons who may be injured in conse- 
 quence ; and this, notwithsianding any agreement to the contrary 
 made with any such person. 
 
 18. Next, with regard to accidents resulting in injury to em- 
 ployees of the company. The general rule, in Quebec at least, 
 would seem to be that the company would be liable towards 
 employees, on the same princii)Ie that they would be liable to 
 passengers or other persons not in their employ, unless indeed 
 the injury was ihc necessary result of one of the risks of employ- 
 ment whicii the employee impliedly undertook in entering into 
 the service of the company, without there being fault or negligence 
 imputable to the company or their officers, for whom they are 
 responsible, (i) The Quebec Courts have refused of late years to 
 adopt the English doctrine that em] 'lovers are not responsible 
 for injuries to their servants resulting from the fault or negligence 
 of fellow-servants in a common employment with them, though in 
 earlier ca'^es it was distinctly recognized. (2) The iuiglish com- 
 mon law doctrine appears to have been, that where a seivant was 
 injured through the negligence of a fellow-servant woiking with 
 him in the same employment, the master was not resjjonsible. 
 
 (1) Kich. & Ont. Kav Co. ;■. St. Jean, M. L. K., I Q.H. 252; St. Law- 
 rence Siif;ar Kcfining Co. ''. Campbell, M. L. R , I (^. U. 290. 
 
 (2) Fuller, v. G. T. R. Co., i L. C. L. J. 68, S. C. R. 1865 ; Hourdeau 
 r . G.T. R. Co., 2 L. C. L. J. 186, S. C. 1866 ; U.iU ?■. Can. Copper cS: 
 .Siilpluir Co., 2 L. N. 245, .S. C. R. 1879, confirming. 
 
ger 
 
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 Ay. 
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 Neolic.ence. 
 
 389 
 
 providing that he had exercised due care in the selection of the 
 servant causing the injury, and had not engaged a notoriously 
 incompetent man. (i) Nice distinctions hiive been made in 
 England as to what would constitute common employment as 
 between different servants working for the same master, and it is 
 now regulated there by Statute, the general principle being that 
 to constitute common employment, the servants must be cm- 
 ployed in the same work and of equa' grade, and that the 
 master would be responsible where inju-y was caused to his ser- 
 vant through the negligence or fault of other servants placed in 
 authority over him by the master, such as a foreman, superinten- 
 dent, or otherwise. And this would seem to be in accordance 
 with principle and common sense ; for while, on the one hand, it 
 would be hard to say that the master should answer for the con- 
 sequences of injury caused by one servant to another working 
 together at the same job, where the fault was practically common 
 to both, it would be equally unjust to say that the servant should 
 have no recourse against his master where he had been injured 
 in obeying the orders of a superior placed in authority over him 
 by tlie master. A striking instance might be taken from the case 
 of brakemen and other men employed upon a train, injured 
 or killed through the fault or neglect of the despatcher ; though 
 in some American cases recourse has been denied to employees in 
 such circumstances, on the ground that the injury was the result 
 of the negligence of a fellow-servant in a common cmi)loyment 
 with them. In the present state of the jurisprudence, the Quebec 
 Courts refuse to make any distinction between the case of an 
 accident happening to a servant through the negligence of a fellow- 
 servant, and an accident happening to a stranger through the 
 same agency. The courts have "refuse J to go beyond the length 
 of recognizing that the servant entering upon a dangerous occu- 
 pation accepts the ordinary risks of it, and cannot recover unless 
 he can show negligence on the ])art of his master, as evidenced 
 
 (I) Priestley t'. Farreli, 3 M. & W. i ; Kodges on Railways 66r ; I Red- 
 field 386; Deverill ?■. G. T. K. Co., 25 U.C. (2- H. 517 ; I'laiit 7\ G. T. Ry. 
 Co , 27 U. C. Q. 15. 78 ; Cunningham r.G. T. Ry. Co., 31 U. C. (}. H. 350 ; 
 O'SuUivan r'. Victoria Ry. Co , 44 U. C. Q. H. 128 ; Macfanane ?• Gilniour, 
 5 O. R. 302 ; Mattliews r. Haniilion I'owder Co., 14 Gut. A. K. 261 ; 
 Johnson z\ Lindsay, [189I], App. Cas. 371 ; Cameron r. Nyslrom [1893], 
 App. Cas. 308, 
 
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 390 
 
 The Railway Law ok Canada. 
 
 eitlier by ihe fault of some fellow servant or defects in some 
 machinery, material or otherwise, (i) 
 
 " Our law," said Judge Ramsay, in — T//e St. Lawrence Sugar 
 Refining Co. v. Campbell, (2) "fortunately is unembarrassed by 
 any artificial jurisprudence disturbing general principles. An 
 employer is liable for any want of care on his part by which his 
 servant is injured; and so, if he engages an unskilled person to 
 conduct his work, and, owing to the want of skill of the person so 
 employed, another workman is injured, the employer is respon- 
 sible, precisely for the same reason he is responsible for defective 
 machinery, or any other cause of disaster." 
 
 In Ontario the effects of the common law doctrine can be 
 avoided by taking action under the Workmen's Compensation for 
 Injuries Act, (3) where the injury is caused by the negligence of 
 any person in the service of the employer who has the charge 
 or control of any signal-pointr*, locomotive, engine, or train upon 
 a railway. This Act ai)plies to all railways in the Province, 
 whether under Provincial or Dominion jurisdiction; — the 
 Supreme Court deciding that it was not ultra vires in its applica- 
 tion to the latter railways, because the rule of law which it alters 
 was a rule of common law in no way dependent on or arising 
 out of Dorninion legislation. (4) In actions under this sub- 
 section of the Act, it is a fair test of the plaintiff's right to 
 recover, to consider what would be his right were the employee 
 causing the accident to be considered the defendant in the place 
 of the comi)any. (5) 
 
 A switch-tender was obliged, in the ordinary discharge of his 
 duty, to cross a track in the station yard to get to a switch, and 
 he walked along the ends of the ties which projected some sixteen 
 inches beyond the rails. While doing so, an engine came behind 
 him and knocked him down, witii his arm under the wheels, and 
 it was cut off near the shoulder. On the trial of an action against 
 
 (1) Rich. & Out. Nav. Co. r. St. Je.Tii, .r?//rr7, p. 388 ; C.itniibell r. .St. 
 Lawrence Sugar RCg. Co., M. L. R , i <J. 15. 2yo; Dominion Oil Ciotli Co. ;•. 
 Coallier, M. L. R., 6 (). li. '>6.S ; Lavoie v. iJraiieau, M. L. R., 3 S. C. 304'; 
 Ross V. Langlois, M. L R., I (). 15. 280 ; and in Ont. see Ihiidnian r. 
 Can. Atlantic Ky. Co., 22 Ont. A. R. 292. 
 
 (2) M. L. R.,' I (^ 15., pp. 294 295. 
 
 (3) I R. S.O.,c. 141, sec. 3, s.s. 5. 
 
 (4) Canada Southern Ry. Co. ?■. Jnrkson, 17 S. C. R. 316. 
 
 (5) Rose, J., in Bruiiell v. C. I'. Ry. Co., 15 O. R. 378. 
 
Negligence. 
 
 391 
 
 Imc 
 
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 111 is 
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 un- 
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 the company, in consequence of such injury, the jury found tliai 
 there was negligence in the management of tiie engine in not 
 ringing the bell, and in going faster than the law allowed. They 
 also found that the plaintiff could not have avoided the accident 
 by the exercise of reasonable care. The Supreme Court held 
 that the Workmen's Compensation for Injuries Act of Ontario 
 applied ; and that there was no such negligence on the plaintiff's 
 part as would relieve the company from liability for injury caused 
 by the improper conduct of their servants ; and the verdict was 
 upheld, (i) 
 
 Another case under this Act was where the plaintiff's son was 
 employed as fireman on a locomotive engine, which was in charge 
 of a driver, plaintiff's son being under his orders. Plaintiff's 
 son was severely scalded by the bursting of the boiler, from which 
 death resulted. The accident was apparently caused by the 
 sudden influx ol cold water into the boiler, which had been 
 allowed to run too low. There was no evidence to show to whom 
 the negligence was attributable ; but it was proved that, though 
 the company held the driver responsible, as regards tiie engine, 
 it was the duty of the fireman, for which he also wa? responsible 
 to the company, to attend to the supply of water, which was part 
 of his education to ft him for the superior position of driver ; 
 and that, from his position, he had greater facilities for opening 
 the valve than those i)ossessed by the driver ; and from a report 
 put in byone of the defendant's officials, it api)eared that plaintiff's 
 son had charge of the water at the time of the accident. De- 
 fendants were held not liable. (2) 
 
 One result of taking action uider the Workmen's Comi)ensation 
 for Injury Act is to limit the amount of compensation a work- 
 man can recover to a sum not exceeding the aggregate of his 
 average wages for the three years preceding the accident. (3) 
 
 IJ). This is a maxim of the English law borrowed from the Volenti non 
 Civil Law, and its interpretation, wiiich formerly gave rise to so ' '"J""""*- 
 much difficulty, is now considered clearly determined by the deci- 
 sion of the House of Lords in Smith v. Baker, (4) in so far as its 
 application to tiie law of master and servant is concerned. 
 
 il 4 \ • 
 
 (I) Canada Sontliein Ry. Co. r', Jack-ion, 17 S. C. R. 316. 
 
 (3) Hiunell '.'. C. P. Ry. Co., 15 O. R. 375. 
 
 (3~> Sec. 6. (4) L'SgiJ App. Cas. 325. 
 
 ftr. 1 
 
I' 'V 
 
 5 :i 
 
 392 
 
 The Railway Law ok Canada. 
 
 The maxim, " Volenti non fit injuria" said Lord Watson 
 in that case, (i) " originally borrowed from the civillaw, has 
 lost much of its literal significance." Both the French and 
 the English law started from the principle of this maxim, (2) 
 as Ramsay J. put it in Richelieu & Ontario Navigation Com- 
 pany V. St. Jean, (3). " As I understand it the English law, 
 ** though it expressed its rule in a somewhat more absolute form 
 " than the Ficnch law, really aimed at the same result. Both 
 " the English and the French law started from the principle 
 " volenti non fit injuria^ As far as the Province of Quebec is 
 concerned, it is clear that the maxim now receives the same 
 interpretation as that put upon it in Smitn v. Baker. (4; 
 
 " Lord Watson in the last mentioned case commented upon 
 " the maxim thus : — "A free citizen of Rome, who, in concert 
 " with another, permitted himself to be sold as a slave, in order 
 *' that he might share in the price, suffered a serious injury; but 
 *' he was, in the strictest sense of the term, volens. '1 he same 
 " can hardly be said of a slater who is injured by a fall from the 
 " roof of a house ; although he, too, may be voiem in the sense 
 " of English law. In its application to questions between the 
 *' employer and the employed, the maxim, as now used, gener- 
 " ally imports that the workman had either expressly, or, by 
 " implication, agreed to take upon himself the risk attendant 
 " upon the particular work which he was engaged to perform, 
 ** and from which he has suffered injury. The question which 
 " has most frequently to be considered is not whether he volun- 
 " tarily and rashly exposed himself to injury, but whether he 
 " agreed that, if injury should befall him, the risk was to be his 
 " and not his master's. When, as is commonly the case, his 
 " acceptance or non-acceptance of tiie risk is left to implication, 
 " the workman cannot reasonably be held to have undertaken it 
 *' unless he know of its existence, and appreciated, or had the 
 " means of appreciating, its danger. But, assuming that he did 
 " so, the mere fact of his continuing at work, with such know- 
 
 (1) [1891] App, Cas. at p. 355. 
 
 (2) Ramsay, J., in Kiel). & Out. Kav. Co. v. Si. Jean, M. L. R., i Q. Ij. 
 261. 
 
 (3) Ji>i^l- 
 
 (4) See lb., and Ross r . Langlois, M. L. R., i Q. 15. 280 ; Desroches v. 
 ■Gauthier, 5 L. N. 404 ; Cossette v. Leduc, 6 L. N. 181. 
 
Negligence. 
 
 393 
 
 " ledge and appreciation, will not, in every case, necessarily 
 " imply his acceptance. Whether it will have that effect or not 
 " depends to a considerable extent upon the nature of the risk, 
 " and the workman's connection with it, as well as upon other 
 " considerations, which must vary according to the circumstances 
 " of each case." (i) And Lord Herschell distinguished the 
 risks due to negligence on the part of the master, as follows ; 
 " Whatever the dangers of the employment which the employed 
 undertakes, amongst them is certainly not to be numbered the 
 risk of the employer's negligence, and the creation or enhance- 
 ment of danger thereby engendered." (2) I'he question, whe- 
 ther the workman has so undertaken the risk, is, therefore, one 
 of fact and not of law. 
 
 At common law, a master who employs a servant in work of 
 a dangerous character is bound to take all reasonable precau- 
 tions for the workman's safety. And such master is no less res- 
 ponsible to his workmen for personal injuries occasioned by a 
 defective system of using machinery than for injuries caused by 
 a defect in the machinery itself. (3) But of course, in order 
 that the. servant may recover for injuries received, there must 
 be negligence on the part of the master. (4). 
 
 So where a switch stand was erected in a railway company's yard 
 close to the track, and a brakeman in their employ was aware of 
 its position and proximity to the track ; while a train was passing 
 through the yard, this brakeman, who should have been on top 
 of the car, was on the side, holding on 10 the ladder by which 
 brakemen mount to the top of a car, and his attention being 
 drawn towards the end of the train he did not see the switch- 
 stand wlien lie was struck by it and thrown under the wheels 
 of the car, and killed ; — liie Court held that there was no evid- 
 ence of negligence on the part of the defendants; and that 
 there was such want of care on the part of the deceased as dis- 
 entitled the plaintiff, his administrator, to recover. (5) 
 
 (1) Lord Watson, in Snulli ;■. IJaker, [189I], Apji. Cas. at p. 355. 
 
 (2) loid at p. 362 ; and see Ilurdinan ^r'. (Ian. All. Ky. (jo., 22 Ont. 
 A. K. 292. 
 
 (3) ymilli r'. Baker, at p. 353, Lord Watson. 
 
 (4) //'/(/. 366 ; and see K. & O. Nav. Co. -■ . St. Jean, NL L. R., i 
 Q. I'.. 252 ; llurdmar r\ Can. Atl. Ky. Co., 22 Out. A. k. 292. 
 
 (5) Ryan r. Canada .Southern, 10 O, R. 745. As to a latent defect in a 
 braice, see Dadgeiow r. G. T. Ry. Co., 19 O. R. 191. 
 
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 Special 
 provi>ions 
 for the pro- 
 tection of 
 enii)Io)ee.s 
 
 394 
 
 The Railway Law of Canada. 
 
 30. There are provisions in the Act for the protection of em- 
 ployees from accidents which might occur in the pursuit of their 
 dangerous calling. Besides tliose already referred to with regard 
 to the height of biidges and tunnels, etc., ( i) there are the further 
 provisions of sec. 262, providing for the packing of frogs at cross- 
 ings and switches. At every railway crossing where one railway 
 crosses another, and at every switch, there is a space between 
 the rails, near where they join, in which it is quite possible for 
 persons to catch their feet ; and in fact many accidents have re- 
 sulted from these spaces being left open. The section referred 
 to provides that these spaces, when leaS than five inches in 
 width, shall be filled with packing up to the under side of the 
 head of the rail, the packing being by means of wood or metal, 
 or some other equally substantial and solid material, of not less 
 than two inches in thickness, which must extend to within one 
 and one-half inches of the crown of the tails, and must be neatly 
 fitted so as to come against the web of the rails and be solidly 
 fastened to the ties. The same provisions are made with regard 
 to the spaces between any wing rail and any railway frog, and 
 between any guard rail and the track rail alongside of it, which 
 must be filled with the same packing at their splayed ends. This 
 filling, however, may be Itft out with the permission of the Rail- 
 way Committee from December to April in each year. The same 
 section, paragraph 5, has a provision to lessen the danger to 
 employees in working the engine, and requires that the oil cups, 
 or other appliances used for oiling the valves of the locomotive, 
 shall be such that no employee shall be required to go outside 
 of the cab when the locomotive is in motion for the purpose of 
 oiling the valves. 
 
 At common law, a brakeman receiving injury by coming in 
 contact with the top of a bridge or tunnel would have no remedy 
 against the railway company. (2) In Ontario, special provision 
 is madi in a separate Act called the Railway Accident Act, (3) 
 whereby the employees or their legal representatives in case of 
 death can recover damages from the railway company for all 
 
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 (1) Sec. 192. 
 
 (2) McLaughlin r. G. T. Ky. Co., 12 O. K.at p. 425; Patterson Ky. 
 Accident I^aw, p. 302. 
 
 (3) R. S. O., cap. 212, sec. 6. 
 
Negligence. 
 
 395 
 
 
 injuries received by such employee owing to the disregard by the 
 company of the precautions prescribed as necessary by the Act. 
 
 In the Dominion Act, a general clause (aSg) has the same 
 effect. By this clause the company are liable " to any person " 
 injured for the full amount of damages sustained to such i)erson 
 by their omitting to do any mutter, act or thing required to be 
 done by the Act. And i*^ lias been decided that the term " any 
 person injured" includes a servant of the railway company, (i) 
 
 In the Ontario Railway Accident Act, certain restrictions are 
 put upon tlie right of the employee to recover in such cases. (2) 
 For instance, in order to recover, the accident must Iiave arisen 
 from the negligence of the railway company, or owing to their 
 neglect or to the neglect of anyone entrusted by them with the 
 duly to discover or remedy the defect occasioning the injury. 
 He cannot recover where, having known the existence of the 
 matter, default, or negligence which caused tlie injury, he did not 
 communicate, his knowledge thereof to l' ". company, unless he 
 was aware that the railway company already knew of such cause 
 of injury. Nor can he recover where his negligence contributed 
 to the accident. 
 
 The words " any person " in sec. 289 of the Dominion Act, 
 although held to include in certain cases employees of the railway 
 company, yet must not be construed in derogation of the com- 
 mon law rule as to the non-liability of the master for an injury sus- 
 tained by one servant through the negligence of a fellow-servant, 
 unless, in the case of the particular act or omission provided 
 against, such extended construction is plainly required. (3) 
 
 Sub-section 3 of sec. 192 provides that the cost of reconstruct- 
 ing or altering bridges shall be upon the company, municipality, 
 or other " owner " thereof, as the case may be ; but it does not 
 say upon whom falls the obligation of making the alterations or 
 reconstruction. It may be fairly argued, however, that where 
 the expense fiUls there the obligation lies. (4) Also, the com- 
 pany referred to in the section is the company owning the railway, 
 and not a lessee or company working the lailway under a mere 
 traffic arrangement. (5) 
 
 (I) Le May <•. C. 1'. \<y. Co., 17 Out. A. R. 293. 
 
 (3) Le May v. C. I'. Ry. Co,, 17 Out. \\)\->. 301. 
 
 (4) McLauglilin T'. G. 1'. Ry. Co., 12 O. K. 425. 
 (j) McLauglilin f. G. T. Ry. Co., 12 O. R., p. 426. 
 
 (2) See. 7. 
 
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 396 
 
 The Railway Law of Canada. 
 
 Investigation 
 into accidents 
 
 Cattle injiil 
 or killed on 
 the railway. 
 
 In the case of omission on the part of the company to pack 
 frogs sufficiently, as required by sec. 262, an employee injured 
 thereby can recover full damages from the company under sec. 
 289. (i) 
 
 The interpretation to be put on sub-section 3 of the same sec- 
 tion is that railway companies are not only required to fill with 
 packing the spaces behind and in front of every railway frog but 
 the space must be continuously kept filled. So, where a brake- 
 man was killed by his foot being caught in an unpacked frog, the 
 evidence showing that the frog had been packed at one time, but 
 had become worn down ; it was held, that the company were 
 liable. (2) 
 
 Jil. With reference to accidents on railways, the Act provides 
 for Government investigation in every case. (3) The company are 
 required, within forty-eight hours of the happening of any accident, 
 attended with serious personal injury, or whereby any bridge, 
 culvert, tunnel, etc., of the railway has been so damaged as to be 
 impassable or unfit for immediate use, to give notice to the 
 Minister of Railways, under a penalty of $200 for every day's 
 omission to do so. And, on the recommendation of the Minister, 
 the Governor in Council [may appoint a commission to inquire 
 into the circumstances of the accident; and the commission are 
 bound to re[)ort fully in writing to the Minister, giving their opi- 
 nion on the matters inquired into. 
 
 But the appointment of such a commission and their report, 
 whatever its nature, will not lessen the liability of the company 
 in any case, where they have been guilty of negligence or omis- 
 sion of duty. This is provided for by sec. 288, which also pro- 
 vides that no inspection had under the Act, and nothing in the 
 Act contained, and nothing done or ordered or omitted to be 
 done or ordered under any provisions of the .\ct, shall relieve 
 the company from any liability resting upon it by law. 
 
 21it .As has been pointed out (4) a railway company would not 
 be responsible for injury to or the killing of cattle which strayed 
 from their owner's properly on to that of another, and thence 
 
 (1) I.eM.iy z). C. P. Ry. Co., 17 Ont. A. R. 293. 
 
 (2) Misenei r'. Midi. Cent. Ry. Co., 24 O. R. 411. 
 
 (3) Sees. 267-270. (4) Supra, p. 261. 
 
Negligence. 
 
 397 
 
 on to tlie railway, under tlie provisions of the Acts previous to 
 that now in force, on the principle that the railway company 
 was only bound to lence, with regard to the proprietors on whose 
 land cat lie was pastured, the obligation of the railway company 
 being towards the owner of the land upon which cattle were pas- 
 tured, (i) This principle has been carried to the extent, that 
 where the owner of horses occupied one part of a lot, and had 
 liorses pastured on another part not occupied nor belonging to 
 him, and they escaped thence on to the railway track, the com- 
 pany would not be liable, as they were not bound towards the 
 owner to fence across that part of the lot whence the horses 
 escaped. (2) But it was pointed out that it was a question 
 whether, under the Act of 1888, wiiich requires the railway com- 
 pany to fence their property on botii sides, without regard to the 
 request of any proprietor, the same rulings would apply. Under 
 the Act, before its amendment by 53 Vic, cap. 28, sec. 2, the 
 company were liable for all damage done to cattle and other 
 animals injured upon the railway having got there in consequence 
 of the. omission to make or maintain fences or catlle-guards, with 
 the proviso that such cattle or animals were " not wrongfully on 
 the railway." Under tiie Act, as it tiien stood, it was decided in 
 the case of Morin v. A. <& N. IV. Ry. Co., (3) that the i)ro- 
 visions of the Act of 1S88 had not so altered the previous law as 
 to make the railway company liable in the case where cattle had 
 got upon tlie railway from the land of an adjoining proprietor 
 on to which they had strayed througli a defect in the fences 
 dividing the property from that of the owner of ihe cattle. The 
 Court there held that these cattle, being trespassers upon the 
 adjoining land, were wrongfully on the railway -that is to say, 
 that being wrongfully upon the neighbor's land, and having come 
 througli tlie railway fence, which was out of repair, they were 
 
 (1) Kae 7\ G. T. Ry. Co., 14 L. C. R. 142 ; Roulx r-. G. T. R. Co., ibid 
 140; Jasmin v. O. & Q. Ry. Co., 6 L, N. 163 ; Fouchon z'. O. 61: f^. Ry. 
 Co., II I,. N. 74 ; McLennan v. G. T. Ry. Co., S U. C. C P. 411 ; Gillis 
 V. G. W. Ry. Co., 12 U . C. C^. H. 427 ; Wilson v. Northern Ry. Co., 28 
 U. C. Q. 15. 274 I Mcintosh v. G. 1'. Ry. Co., 30 U. C. Q. B. 6oi ; Doug- 
 las r. G. T. Ry. Co., 5 Ont. A. R 585 ; Daniels v. G. T. Ry. Co., 11 Ont. 
 A. R. 471 ; Davis v. C. P. Ry. Co., 12 Onl. A. R. 724. 
 
 (2) Conwny z. C P. R. Co , 12 Ont. A. R. 708. 
 
 (3) 12 L. N. 90. 
 
 
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 iSi 
 
 $ 
 
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 M 
 
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 11^ 
 
 398 
 
 The Railway Law op Canada. 
 
 equally wrongfully upon the railway ; and this principle was also 
 recognized in Ontario, in a similar case, (i) Were it not for the 
 words " not wrongfully upon the railway," there is little doubt 
 that the railway company would have been held liable in any case 
 where cattle had got upon the railway through a defect in the 
 railway fence, whether they had come directly from the property 
 belonging to their owner, or had strayed through adjoining pro- 
 perties. 
 
 The Act, as now amended, however, provides that if the com- 
 pany omits toerect, or, when erected, to maintain such fences, etc., 
 and in consequence any animal gets upon the railway from an ad- 
 joining place where, under the circumstances, it might properly 
 be, the company will be held liab'e to the owner of such animal 
 for all damages in respect of it caused by the company's trains or 
 engines, etc. ; and no animal allowed bylaw to run at large shall 
 be held to be improperly on a place adjoining a railway, merely 
 for the reason that the owner or occupant of such place has not 
 permitted it to be there. (2) 
 
 It is also j)rovided that the company shall not be held liable 
 for injuries to cattle on their track where they have complied 
 with all the requirements of the statute, except where such injuries 
 are caused wilfully or negligently by the company or its em- 
 ployees. (3) 
 
 The duties of the owners of horses, sheep, swine, or other cattle 
 are, that they shall not allow such cattle to be at large upon any 
 highway within half a mile of the intersection of such highway 
 with any railway at rail level, except they be in charge of some 
 person, to i)revent their loitering or stopping at such intersection. 
 (4) No recovery can be had from the company for the loss of 
 or injuries to cattle at large, contrary to these provisions, killed 
 or injured by any train at sucli point of intersection. (5) 
 
 At common law the owner of catrle was bound to keep his 
 cattle within his own premises ; if they strayed beyond, they were 
 trespassers, and the duty to maintain fences in repair was only 
 
 (1) Mcickenz e p. C. P. Hy. Co., 14 I.. N. 410. 
 
 (2) S3 Vic, c. 28, s. 2, amending Ry. Act i888, sec. 19/^, sub-sec. 3. 
 
 (3) Sec, iq6. 
 
 (4) Sec. 271. 
 
 (5) Sec. 271, sub-sec. 3. 
 
^ 
 
 Negligence. 
 
 399 
 
 
 M 
 
 as against the owner of adjoining lands, (i) The leading 
 English case of Rickctts v. The East and West India Docks, etc., 
 Company, (2) decided that tiie duty imposed upon railway cooa- 
 panies by the Railways Clauses Consolidation Act, (3) as to 
 the making and repairing of fences between their railway and the 
 adjoining lands, is not more extensive than that imposed upon 
 ordinary tenants by the common law. This provision of the Act 
 was substantially the same as those of our several former 
 Dominion Acts, (4) and the last Act as amended (5) does not 
 seem to have materially altered the sense of the former ones, for 
 McMahon, J., held in Duncan v. C, P. R., (6) that tlie words 
 "might properly be" are equivalent to " might lawfully be," and 
 this construction was also adhered to by McDougall, J. C. C, in 
 the very recent County Court case of Griffith v. C. P. R. (7) 
 
 The cases oi McLellan v. G. T. R. ; (8) Gillis v. G. IV. R. 
 Co.; (9) Mofin v. At. «fc JV. IV. Ry. Co. ; (10) Davis v. C. P 
 R.Co.;(ii) Daniels v. G. T. R.; {\2) Mcintosh v. G. T. R. ; 
 (13) Dolrey v. Ontario, Siincoe & Huron Ry.; (14) Comvayv. 
 Can. Pac. Ry. ; (15) Wilson v. Northern Ry. of Can. ; (16) 
 McFie V. C. P. R. ; (ly) and Douf/las v. G. T. R. (iS), all show 
 that under the old Railway Act the company were only bound to 
 fence as against adjacent land proprietors. 
 
 A New Brunswick case (19) is against this contention; but 
 there the decision is based upon a N. B. statute, which only 
 enjoined the erection and maintenance of fences where the raii- 
 wav passes through enclosed or improved land, and omitted any 
 mention as to its relation to the occupiers of adjoining lands. (20) 
 
 (i) I Rcdfield, § 128; Pierce 401 ; Crowe v. Steeper, 46 U. C. Q. H.87. 
 (2) 12 C. B. 160. (3) 1S45, 8 & 9 Vic , c. 20, s. 68. 
 
 (4) Daniels r. G. T. K., 11 Ont. App. 471 ; McLellan v. G. T. R., 8 
 U. C. C P. 411 ; Mcintosh v. G. T. R., 30 L'. C. (). li. 601. 
 
 (5) 53 Vic, c. 28. (6) 21 O. R. 355. 
 
 (7) York, I-'eb. 2, 1892, 15 Leg. New.s 1 19. 
 
 (8) 8 U. C. C. P. 411. (9) 12 U. C Q. B. 427. . 
 (10) 12 L. N. 89. (II) 12 Ont. App. 724. 
 (12) II Ont. App. 471. (13) 30 U. C. y. H. 601. 
 (14) II U.C. Q. H. 600. (15) 7 O, R. 673. 
 
 (16) 28 U.C. Q. IJ. 274, (17) 2 Man. 6. 
 
 (18) 5 Ont. App. 585. 
 
 (19) St. John & Maine Ry. Co. t. Montgomery, 2[ N. B. 441 . 
 
 (20) As to construction of Statutes in the United States regarding fencing, 
 see Pierce 412. 
 
 
 !K 
 
 t: 1 
 
 J-: 
 
400 
 
 The Railway Law ok Canada. 
 
 In the case of one railway running parallel and contiguous to 
 the line of another, the one on the side next whi( h the cattle 
 escaped is not liable for injuries thereto happening on the other 
 line, (i) 
 
 The furthest extent perhaps to which the interpretation of our 
 statute, as it now stands, has gone, is shown in the recent Quebec 
 case of Bourassa v. G, T. Ry. Co. (2) Some time before the 
 passing of the train, the plaintiff's nephew had opened the two 
 gates serving to connect the two parts of plaintiff's property, which 
 was divided by the railway track. He intended to drive the four 
 horses from one part of the property to the other ; but after the 
 horses had passed the first gate, a sudden gust of wind blew the 
 other gate to, and the horses, not being able to pass through, 
 dashed along the railway line, and wandered along the track for 
 some time until killed by a passing train. Tiie Court was of 
 opinion that tiie company, under all the circumstances of the 
 case, should be held responsible. Tlie accident would not have 
 occurred if the improved Westinghouse brakes had been in use, 
 as the cars might have been stopped in time. This case would 
 seem to have been decided upon tiie general principles of the 
 law of negligence as to highways. Had the horses b een law 
 fully on the track at the time, instead of being trespassers, the 
 company might have owed to the propriclor of the animals 
 the duty of jjroviding their trains with the most improved system 
 of brakes then in use. (See Ry. Act, sec. 243). But they owed- 
 them no such duty. A railway company, at the Cijinm^n law, is 
 under no other or different obligation respecting the premises 
 occupied by it than any other owner or occupant of real estate. 
 (3) The first and ])aramouiit duty of the company is to their 
 passengers. They regulate the general speed of llieir trains 
 on ihe asiumptioi) that they will find the track free from ob- 
 structions. If they are to bring their train to a standstill every 
 time they meet with cattle trespassing on the track, they would, 
 
 (1) Fouchon V. Ont. & Quebec Ry. Co., ol L. N. 74 ; D.ioust :'. C 1'. 
 R. Co., 15 L. N. 3S2 ; as to whether a hifjhway running alonK>iile a railway 
 can he considered as the land of an adjoining proprietor, see Daniels v, G. 
 T. Ry. Co., II Ont. A. R. 471. 
 
 (2) 30th Oct., 1893, S. C, Mathieu, J., i M. L. D. & R. 591 ; re- 
 versed in appeal. 
 
 (3) Wood 1543 ; Pierce 401, 402 ; Lambert?'. G. T. R., 28 L. C J. at p. 4. 
 
' k 
 
 Negligence. 
 
 to 
 
 Itle 
 lier 
 
 401 
 
 in effect, be subjecting the management of their road, and the 
 persons and property in their charge, to the control of wrong- 
 doers, and liolding out a premium to them for wrong-doing, and 
 greatly increasing the chances of a collision, (i) " Want of 
 attention amounting to a want of ordinary care is not a good 
 cause of action, although injury ensues from such want, unless 
 the person charged with such want of ordinary care had a duty 
 to the person complaining to use ordinary rare in respect of the 
 matter called in question. Actionable negligence consists in 
 the neglect of the use of ordinary care or skill towards a per- 
 son to whom the defendant owes the duty of observing ordinary 
 care and skill, by which neglect the plaintiff, without contributory 
 negligence on his part, has suffered injury to his person or pro- 
 perty." (2) 'I'he company is not under an obligation to tres- 
 passers to use the appliances most efficient for safety. (3) Thus 
 horses had strayed on to the track, and the person in charge from 
 whom they had escaped, was driving them towards the crossing, 
 when a train, which was approaching, drew up for a time, tlie rear 
 cars being on the crossing, and then the track being clear, the 
 engine driver sounded the whistle for brakes off, and proceeded. 
 The horses had then come nearly abreast of tiie engine, but 
 alarmed by the wliistle and motion of the train, they turned and 
 ran towards a bridge. They got upon the bridge before they 
 could be stopped, when some were injured and others killed. It 
 was held that the defendants were not liable ; there was no 
 evidence of negligence in tlic manner in which the train was 
 started ; the defendants were using their own property as of 
 right and in a Livvful way, and no duty was cast upon the en- 
 gineer to wait until the horses had been entirely driven off their 
 premises. (4) 
 
 And the same principle was laid down in another similar case, 
 where two horses had strayed on to the Irack, and were running 
 ahead of the engine. Steam was shut off, speed slackened, and the 
 whistle blown. On whistling, tiic horses ran off the track, speed 
 was then increased, tliey ran on again, and two were caught in a 
 
 (1) IlurJ V. G. T. K., 15 Out. A. R. 72 ; Pierce, 406. 
 
 (2) Hurd v.G. T. R., 15 Ont. A. R. 69. 
 
 (3) McKenna v. New York Cent, & H. R. R. Co., 8 Daly 304. 
 
 (4) Ilurd V. G. T. R., 15 Ont. A. R. 58. 
 
 26 
 
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 m. 
 
 
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 liiiii 
 
 
 
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 1 
 
 
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 1 
 
 1 
 
 1.1 i 
 
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 TiiK Ram.ww Law ok (Canada. 
 
 Uuiilen of 
 proof. 
 
 culvert. 'I'he engineer again called for brakes, it was a down 
 grade and the train could not be stopped lill llie horses were 
 killed, h was held that the defendants were not liable, (i) 
 
 *m. The following cases may be cited as showing on whom the 
 burden of proof is in such cases. Where plaintiff's cattle, having 
 l)een in his yard at nine o'clock one evening, were discovered 
 about ten o'clock the next morning lying wounded alongside the 
 defendant's line of railway, it was held that it could be fairly 
 inferred that the injury was caused by an engine or cars running 
 upon the defendants' railway, and under the control of the defen- 
 dants' servants. (2) Where a passenger on the train saw the 
 conductor and some of the other msn employed on the train, 
 examining a mare which was lying at the foot of an embankment 
 near the railway, and unable to rise without assistance, and early 
 next morning the plaintiff's mare was found dead near the same 
 place, with several of her ribi broken, and that she had been 
 gracing about there the previous evening, and was then unin- 
 jured; it was held that there was sufficient to leave it to the jury 
 whether the mare which the conductor of the train wascxamiiiing 
 the previous night was the plaintiff's miire. (3) Where a horse 
 was found dead near the railway track of ihe defendants, and tb • 
 evidence did not disclose in what mannei he anima' had cen 
 killed, but it appeared the fence adjoining the trai ' good 
 
 condition and that the gate therein leading to the was fre- 
 
 quently left open by persons jjassing thiough, ii. ilcfendaUs 
 were held not liable. (4) 
 
 The fact that an accident has occurred is not of itseli evi- 
 dence of negligence ; the plaintiff must give affirmative eviilence 
 of negligence on the part of the railway company, and if the fact 
 of negligence is left doubtful, the defendants are entitled to a 
 verdict. (5) 
 
 (1) Aiif;er v. Ontario, .Simcoc it Iliuon Ry. Co , y U. C. C. P. 164 ; and 
 see Cani|ibefl t'. Great VVeslern Ry. Co., 15 U. C. <). 1). 498 ; Connors v. 
 Great Western Ry. Co., 13 U. C. Q. li. 40I ; [•"nlconer .■. Eiuopean 6c N. 
 Amer. Ry. Co., 1 Pitgs 179 ; Mcl-'le v. C. P. t\. , 2 Man. 6. 
 
 (2) McMillan f. Man. cS: N. W. Ry., 4 Man. 22c. 
 
 (3) N. H. Ry. Co. r. Armstrong, 23 N. \i. 193. 
 
 (4) Lambeit :■. G. T. R. Co., 28 L. C. J. 3. 
 
 (5) Falconer :■. North American Ry. Co., 1 Piijjs. 1 79; Wood, 1566; 
 Lambert ?•. G. T. R., 28 L. C. J. 3 ; Plielps r. Great East. Ry. Co, 2[ 
 L 'I". .(43 : IlnnimucU :■. White, 1 1 C. IS. (X. S.) 588 ; Cornman r. Eastern 
 
 Counties Ry. Co.,4 II. & N. 781 ; Tooniey 
 Co.,3C. H. (N. .S.) 146. 
 
 London & Brigiiton Ry. 
 
 
Neoluienit. 
 
 403 
 
 ire 
 
 AVheie ilie fences have been accidentally destroyed by fire after 
 the Hack inspector has made his daily inspection, and the fact is 
 not known until after the injury lias been done, the company is 
 not guilty of negligence, (i) 
 
 Where the evidence shows that the stock killed had entered 
 upon the track on a line offence that was generally insecure, it 
 is not necessary that it also show that the particular part thereof 
 over which the stock passed was insecure. (2) 
 
 !J4. 'I'his question of the liability of railw ly companies for Cattle .it 
 
 injury to cattle or animals on the track arises also in conucctioii ''I'S^' "" ''"^' 
 
 . Iiijjhwtiy, 
 
 with accidents occurrnig through annuals gettnig on to the track 
 
 from the highway, and the liability of the company in such cases 
 is governed by the interpretation to be ])Ut ujjon sec. 27 1 of TIk' 
 Railway Act, read in connection with sec. 194. 
 
 This provision of The Railway Act has been in force for many 
 years, and until very recently, the jurisprudence has been uni- 
 form, that the ownerof cattle straying on the highway, and thence 
 getting on to the track, and being there injured or killed, even 
 though not at the point of intersection, would have no recourse 
 against the railway company. For instance, as far back as 1S52, 
 in the case of Rcclielcaii v. Tlic St. Lii-u'ii'/ii;- <l'' Athvitic Ry. 
 Co., (3) it was held that a railway company was not liable for 
 the killing of cattle straying on to the railway from the public 
 road, 'and that persons allowing their cattle so to stray were liable 
 to the company for damage to cars thrown off the track by col- 
 lision with such animals. 'I he difficulty in the interpretation of 
 this section of the Act is tiiat the denial of action according to 
 the literal wording of the Act is only in the case where animals 
 are killed or injured " at the point of intersection," that is to 
 say, being on the highway at the point intersected by the rail- 
 way. According to this section of the \c\, cattle or animals on 
 the railway at the point of intersection, being at large and not in 
 charge of any jierson, would be unlawfully or wrongfully upon 
 the railway, as having come from a place where they might not 
 properly be ; and if being so unlawfully or wrongfully upon the 
 
 (1) Toledo Can. South, eic, R. R. Co. ?■. Elder, 45 Mich. 329. 
 
 (2) Louiseville, etc., R. R. Co. r. Spain, 61 Ind. 460. 
 
 (3) 2L. C. U. 337. 
 
 i 
 
404 
 
 The Railway Law ok Canada. 
 
 ;!*f 
 
 I'.'U ' 
 
 » 
 
 railway, they strayed up or down the track in either direction, it 
 would naturally seem as if they were still wrongfully or unlaw- 
 fully upon the railway, and that therefore the railway company 
 would not be liable should they be killed ; for, referring back to 
 sec 194, the liability of the company would depend upon two 
 questions, namely, ist, whether the animals had got on to the 
 railway in consequence of an omission to make and maintain 
 catiie guards or fences ; and and, as to whether they had got on 
 to the railway from a place where they might properly be. 
 
 In Ontario, the jurisprudence is settled, that in the case of ani- 
 mals so straying, the owner has no recourse, whetiier the cattle 
 were killed at the point of intersection or not. The following 
 cases shew how the princii)le has been there applied. In 
 Fern's v. 2Vie Grand Trunk Ry . Co., (i) it was held that, where 
 llie plaintiff's horse escaped from a field into a street, within half 
 a mile of the railway, and thence strayed on to the track, the 
 company were not responsible, although the horse was not killed 
 at the very point of intersection. And it is proper to observe that 
 when tliis case was decided, the Act did not contain tlie pro- 
 viso that the railway company should only be responsible where 
 llie animals were not unlawfully upon the railway. \\\ another 
 case of Simpson v. Tlu Great Watcrn Ry. Co., (2) the same 
 .principle was applied where a horse had been seized by llie siieriff, 
 and placed in a stable adjoining the public i\^ad, from which it 
 escaped on to the higiiway, and thence got on to the railway 
 through defects in the cattle-guards. There it was decided in the 
 same sense, that the owner could not recover, as the h . se was 
 unlawfully upon the highway, even though it had been placed in 
 the stable in question without the consent of the owner. Tiie 
 snme principle was affirmed in a later case of Tliompson v. llie 
 Grand Trunk Ry. Co.., (3) where a horse was killed after hav- 
 ing strayed from the highway on to the track, and it was held 
 tiiat the neglect to ring the bell and sound the whistle as required 
 by the Act on approaching the crossing .vould not make the com- 
 pany responsible, on the evident piincii)le that tlie animal not 
 being in charge of any person, the omission to give the signals 
 
 (I) 16 U. C. Q. E. 47^ 
 (3) IS U. C. (^. !i. 92. 
 
 (21 17 U. C. Q. B. 57. 
 
Negligence. 
 
 405 
 
 y 
 
 to 
 fo 
 le 
 |in 
 3n 
 
 required by the Act would not necessarily have averted the acci- 
 dent. Following up the principle that the animals must be in 
 charge of some person, so as to prevent their loitering or sto])- 
 ping on the highway at the intersection of the railway, it was held 
 in a case of Cooley v. G.T.R. Co., (i") that where horses were 
 being driven in front of a servant of the owner, but not held 
 by any b ridle, halter, or otherwise, and got upon the railway 
 track through the cattle-guards being filled up with snow, the 
 horses were not in charge of any person within the meaning of 
 the Act, and that consequently the owner could not recover, 
 because the servant so driving them had no control over the ani- 
 mals. This principle was re-affirmed in a later case oi Afar^'/iam 
 V. T/w Great Western Ry. Co.., (2) and has recently been again 
 upheld in the late case of Da// /e/s v. G.T.R. Ct?., (3) where sheep 
 straying on the highway got through a defective fence on to land 
 belonging to the railway company adjoining its track and used 
 as a gravel pit, and thence on to tlie railway, where they were 
 killed. The company were hold not liable, on the ground that 
 there was no duty cast upon them as towards the owner of the 
 sheep to fence their land adjoining the highway. 
 
 The Court of Appeals in Quebec at one time departed from 
 the principles laid down in the Ontario cases and the earlier 
 Quebec cases, and held in the case of Po//tiac Pacific J/i/ictio/i 
 Ry. Co. V. Brady, (4) that where aninals had strayed ui)on the 
 railway track from the highway, through defective caltle-guards, 
 the company were responsible for their being killed by a passing 
 tiain, on the ground that the accident was due to the omission of 
 the railway company to make proper cattle-guards ; and that the 
 question of their being unlawfully on the highway wiih regard to 
 the public did not affect the railway company's responsibility. 
 The ])rinciple upon which this case went was that die animals 
 not having been killed at the point of intersection, but having 
 strayed along the track through want of cattle-guards, which they 
 could not have done if the cattle-guards had been there, their 
 killing was directly due to the omission of the company to pro- 
 vide proper cattle guards. This case was decided under the i)ro- 
 
 (I) 18 K. C. (1. H. 96. 
 (3) 11 Out. A. R. 471. 
 
 (2) 2-s, U. C. Q. n. 572. 
 {,0 M. L. It., 4 <J- 15- 346- 
 
 ' - 1 
 
I I 
 
 ' ,1 
 
 4c6 
 
 TnK Railway Law of Canada. 
 
 visions of the Consolidated Railway Act of 1879, in force previous 
 to the present Act; but in a subsequent case, (i) the Superior 
 Court gave a similar decision under the present Act. 
 
 In that case, the learned judge in the Superior Court said : — 
 " If the colts had been killed at the point of intersection — even if 
 there without plaintiff's knowledge — I am disposed to think that 
 the provisions of the Railway Act would have been applicable. 
 But they were killed some distance down the track, at a place to 
 whicii they had gone, in consequence of defendant's neglect to 
 build a proper fence and cattle guard to prevent them." (2) 
 
 This judgment of the Superior Court was, however, reversed 
 in appeal, on the ground that the horses were unlawfully on 
 the highway, and, therefore, got on to the railway from a place 
 where, in the language of the statute, they might not properly be. 
 
 (3) 
 
 As Wcatherbe, [., said in Whitman v. The W, (f; A. Kailivay 
 
 Co., (4) " The clause of the Act (5) requiring cattle-guards 
 at crossings can Mt be, 1 am clearly of opinion, construed to 
 render the companv lial>le at all events, and against owners of 
 cattle unlawfully on the highway." 
 
 When cattle are lawfully passing upon the highway, at its in- 
 tersection with the railway, the company are bound to exercise 
 ordinary care to prevent injury to them. The company and the 
 owner arc, in such case, each exercising an equal right. The 
 company are bound to use ordinary care to prevent injuries to 
 cattle which are rightfully upon private crossings established by 
 law or agre'^ment ; but the plaintiff's contributory negligence 
 will defeat the action. (6) 
 
 (\) Cross r. C. V. Ky. Co., (J. K., 2 S. C. 365. 
 
 (2) Cross f. C 1'. R. (J. R. 2 S. Cat \k 36S. See, on this jioint, I'hillips 
 7'. C. I'. R., J Mini, n^; citinj; Tliompson f. G. '1". R., 37 U. C. Q, il. 
 40, and otiieis; Duncan '■. C. P. K., 15 L. N. 15 ; Nixon v. G. T. R., 16 
 L. N. 59 ; Gioulx v. C. 1*. K., (^). R., 3 .S. C. Si ; also IX-sy v. C. I'. Ry. 
 Co. , Q. R..4 S, (.'. 1^4 ; Langevin v. C. 1'. R., bourgeois, [., C.Ct., Three 
 l\iveis, 151I1 March, 1S93. 
 
 (3) O. R. 5 (^). li. 170; a- ■ ,ee Cani|)l)cll r. G. T. Ry. Co,, il)i'l. p. 570. 
 (4)6 Russ tS: Geld. 271. 
 
 (5) Ry. .\ct, Ncisa Scolia, 1S80 ; same as l)onih)ion Act in this respect. 
 
 (6) Pierce 405. Bender -,■. Can. Soutli. Ry., 37 U. C. <J. U. 25, wiiere 
 the relalive rigliis and duties of railway com[)anie.s and landowners, with 
 regard totiie use of faini cros>ings, are considered. Campbell r'. Great Western 
 Ry. Co., 15 U. C. (V li. 498; Tyson ?■. Grand Trunk Ry,, 20 U. C, (^. IJ, 
 256; Rcnaud ?■. (.ireat Western Ry. Co., 12 U. C. (^. li. 408. 
 
 m 
 
Negugenck. 
 
 407 
 
 The rate of speed, and ihe necessity tiiere might be of giving 
 warning of the approach of a locomotive, must depend on the 
 nature of the crossing, the frequency or infrequency of its use — 
 the purpose for whicli it is used, whether only for human beings 
 or for them and for cattle also, or chiefly for cattle — for, in the 
 case of cattle, unconscious of the danger, there would be more 
 difliculty in luirrying them over, especially wiien many of them 
 were huddled together, than if human beings were passing — the 
 formation of the ground, and, whether from that or from any 
 other cause, natural or artificial, the place of crossing could be 
 seen at such a distance from the engine that its speed could be 
 checked, or be altogether stopped in case of danger being 
 imminent (i) 
 
 The mere sounding of the whistle, as required by the Act (2) 
 is not sufficient to exonerate the company from blame ; (3) 
 and wliere a train, in approaching a crossing, neglects to give the 
 proper signals, the company will not be relieved from liability 
 because the person whose cattle were run over did not take the 
 best means to avoid the accident, or because his horses were 
 unmanageable. (4) 
 
 J36. Any bylaw of a municipality intending to alter the com- By-laws 
 
 mon law so as to i)revent horses, cattle and other animals to run ^'lowing 
 
 ..... , cattle to run 
 
 at large, must be clear and unequivocal in its language as to such at large. 
 
 permission. (5) It must be affirmative. (C) 
 
 21. 'I'iie principle of the English law with regard to tiie liability Damage by 
 of railway companies for damages caused by sparks emitted by 
 their engines is very clearly laid down in the recent decision on 
 this point in the House of Lords. In the case of T/ir Port Glas- 
 gow <f' ycK'iVk Sailclotli Company v. 'J he Caledonian Raihcay 
 
 fire. 
 
 (1) I'.ciider ;■. Can. Smith. Uy. Co., 37 U. C. (^). H. at p. 32 ; Cliff ?■. Mid- 
 land k. Co., L. it., 5 (J. 1>. 21) t ; Hilbee '■. London, iJrigliton t*\: Soiitli 
 Coast R., 18 C. li. N. S. 584. 
 
 (2) Sec. 256. 
 
 (^) CamplK-ll ;■. GrcU Westi-rn Ry. Co., 15 U. C. (^. 11. 49S. 
 
 (4) Tyson 7'. G. T. R.. 2o U. C. (J. li. 2^6. 
 
 (5) [acl< -■ . Ontario, Sinicoc vS: Huron \<s . L'niou Co., 14 U. C. R. 328; 
 Crowe r'. .Sleeper, 46 V . C. R. 87. 
 
 (6) lUincnn r. C. P. K,. 21 O. R. 355 ; D.uiiels r'. G. T. R., 11 Ont. App. 
 471. 
 
 m M 
 
 \t\ 
 
4o8 
 
 The Railway Law of ('anada. 
 
 ii I 
 
 !'i|; 
 
 I ' 
 
 Company^ (i) decided in 1893, ^'^^ Lord Chancellor (Lord Hers- 
 chell) stated that : " It is now well settled law that in order to 
 " establish a case of liability against a rai'way company under 
 '' such circumstances, it is essential for the pursuers to establish 
 " negligence. 'J he railway having the statutory power of running 
 " along the line with locomotive engines^ which in the course of 
 " their running are apt to discharge sparks, no liability rests 
 " upon the company merely because of sparks emitted by an 
 " engine having set fire to adjoining property. Bui the defenders, 
 " although possessing this statutory power, are undoubtedly bound 
 " to exercise it reasonably and properly, and the test, whether 
 " they exercise this power reasonably and properly, appears to 
 " me to be this : they are aware that locomotive engines running 
 " along the line are apt to emit sparks. Knowing this, they are 
 " bound to use the best practicable means, according to the 
 " then state of knowledge, to avoid the emission ofs])arks which 
 " may be dangerous to adjoining property ; and if they, knowing 
 " that the engines are thus liable to discharge sparks, do not adopt 
 " that reasonable precaution, they are guilty of negligence, and 
 " cannot defend themselves by relying upon their statutory power. 
 " About the law as I have expressed it, I do not think there is 
 " any controversy." In this particular case it was held that the 
 failure to use spark arresters, the same having gone out of use, 
 was not, in the absence of proof by the pursuers, evidence of 
 negligence on tiie part of the defenders. 
 
 In Redfield, on Railways, (2) t!ic English doctrine seems to 
 have been misunderstood, for after staling it to be '• that the 
 fact of premises being fired by sparks emitted from a passmg 
 engine is prima facie evidence of negligence on the part of 
 the company," the author proceeds to say : " ]3ut in tliis 
 " country (America), it must be confessed, the rule of the 
 " liability of railways for damage done by lire communicated by 
 " their engines, is more favorable to the companies tlian in Eng- 
 " land. It seems to have been assumed in this country, that 
 " the business of railways being lawful, no presumption ofnegli- 
 
 m 
 
 (i) 30 Scot. Law Kep. 587. See also Vaiigh.m -■. Tafif Vale Ry. Co., 5 
 H. & N 679. 
 
 (2) Fdit.of 1887, p. 470, § 125, sec. i. 
 
Negligence. 
 
 409v 
 
 •' gence arises from tlie fact of fire being communicated by tiieir 
 " engines." (i) This is exactly the present English rule. 
 
 The rule itself is very clear, but is difficult of applicalinn, . 
 and is sometimes considerably modified in iis application to 
 l)articular cases. In this country we may begin our consideration 
 of the jurisprudence with a recent Supreme Court case. (2) 'I'here 
 it was proved that at a certain hour a train passed the jiroperty . 
 injured by fire, and two hours afterwards another passed. After 
 tiie passage of the latter, fire was discovered on the adjacent 
 land. It was shown that the engine of the first train was in a. 
 defective state, and likely to throw dangerous sparks, while the 
 second engine was in good repair. It was held that there was 
 sufficient evidence to justify the jury, in finding that the inference 
 was that in the absence of any evidence that the fire came trom 
 the second engine, it came from the engine out of order. Henry, 
 J., thought this case presented much difficulty, for the last engine 
 might possibly have emitted sparks which caused the damage. 
 If so, the company would not be liable, as that engine was pro- 
 vided with the usual appliances for preventing the escape of 
 sparks. (3) , . j • 
 
 In a former case this Court (4) had to determine another 
 question, and one of great difficulty. It was held tliat railway 
 companies are responsible for all damage arising from their default, 
 whether such damage is occasioned by fire escaping from the 
 engine coming directly in contact with and consuming the pro- 
 perty of third persons, or is caused to the property of sucli third 
 persons, by a fire communicated thereto from the jiroperly of the 
 railway company themselves, which liad been ignited by fire 
 escaping from the engine coming directly in contact therewith. 
 The decisions in the United States are conflicting upon this 
 point, but Mr. Justice Cooley has expressed himself in favor of 
 the view held by the majority of the Court iu this case. (5) 
 
 (1) Ibid. see. 6. 
 
 (2) Can. All. Ry.Co. \\ Moxloy, 15 S. C. U. 145. 
 
 (3) -And see (Uasgow & l,ondon Ins. Co. v. C. 1'. Ry.l-'o. . 3J (,, ('. J. I. 
 
 (4) Caiinda .Soulhein Ry. Co :'. I'lieli^.';, 14 S. C R. 132. 
 
 (5) Cooley. 'I'orts p. 77,* And see Sherman & Redficld on ne(.;li;;encc. 
 h Ed., par.s. 29, 30, 665 ; in (Quebec, see I'ordyce v. Reams 15 L.C. j. So ; 
 
 i/.iwson V. 'I'icsiler, 2 Q. 15. R. 115 ; and in France, 5 RoUand de \'illaif;nes 
 Vo. ///rt«ti'/i' Nos. 37-39, 6 Toiillief No. 286, 11 do.Nos. 155-172; Dailo/^ 
 Vo. Dotnmaj^e-Destnution Nos. 49-51 ; Richard et Maucorps, respon?a- 
 bilitii civile en inatiere d'incendie, Nos. 27, 32, 705. 
 
 411 
 1) 
 
410 
 
 The Railway Law ok Canada. 
 
 Ill I 
 
 I. <^ 
 
 i' ' 
 
 But in a case quite similar (i) to lliis, wliere the fire began by 
 burning some wood in one of the company's wood slieds, wiiich 
 was also destroyed, and from these by the force of a strong wind 
 the fire was carried to, and consumed the plaintiffs properly, 
 which was distant about 130 ieet from the shed, it was held in 
 New York that the plaintiff had no cause of action against the 
 company. 
 
 Later, the same court, composed ])arlly of other judges, decided 
 that where coals were negligently dropped from the company's 
 engine, which set fire to a tie, from which the fire spread to an 
 accumulation of wteds, grass and rubbish lying on the road, 
 and from those spread to a fence, and into plaintiff's woodland, 
 and burnt and destroyed his trees, the plaintiff was entitled to 
 recover. (2) But Mr. Justice Henry, in Canada Southern Ry, 
 Co. V. /'ht'/ps, (3) pointed out in his dissenting opinion, that the 
 later New York case was distinguishable from the other. In that 
 case, through the negligence of the company, the means for the 
 spreading of the fire on their own property existed, by which the 
 fire spread to their fence, and then into the land of the plaintiff. 
 The spreading of the fire from the tie was therefore from a cause 
 for which the company could be held answerable. *' In the 
 " present case," he said "' it is not shown, that through the ncgli- 
 " gence of the appellants, the means for the spreading of the 
 " fire from the station house to that of the respondent existed. 
 " In fact, the opposite is shown, for there was no combustible 
 " matter sliown to have existed l)y which the fire could spread 
 " to the barn and house of the respondent." And Mr. Justice 
 Gwynne intimated that w' ere a fire spreads from house to house 
 for a long distance there might be circumstances intervening 
 which would relieve the company from liability, 'i'his would 
 undoubtedly be so if there were a new and independent cause 
 intervening, but apparently not otherwise. (4; 
 
 ::p'; 
 
 (i) Ryan?'. The New Voik Central Ky.Co., 35 N. V. 209. 
 
 (2) Wtbb ?'. Tl>e Rome, W'atertown .S: Otjdensburg Ry. Co., 49 N. \. 
 420; ami see Keif r' I'enn. Ky. Co., 62 I'enn. 353; Klannigan v. C. P. Ry. 
 Co., 27 O. R. 6 ; Ball. v. Vj. T. Ry. Co., 16 U. C. C. I'. 2ii2 ; Smiili :■. I,oiulon 
 &. South Western Ry. Co , L. R.. 5 C. P. 98, L. R.,6 C. P. 14 ; irewitt v. 
 Out-, Simcoe & Huron Ky. Co,, 11 U. C. Q. B. 604. 
 
 (3) 15 S. C. R. at p. 151. 
 
 (4) Whartan, \eglit;ence (Ed. of 1874; § 154; Field, Negligence, (Ed. 
 of 1876) p. 531 ill votis. 
 
Negligence. 
 
 4tl 
 
 The rule in regard to the responsibihty in sucli cases is thus 
 expressed by Pollock, C. B. : (i) "I am disposed not quite to 
 " acquiesce to tlie full extent in the proposition, that a person 
 " is responsible for all the possible consequences of his negli- 
 " gence. I wish to guard against laying down the proposition 
 " so universally ; but of this I am quite clear, that every person 
 " who does wrong is at least responsible for all the mischievous 
 " consequence that may reasonably be expected to result, under 
 "ordinary circumstances, from such misconduct." (2) 
 
 As to the question of what is or is not negligence in the run- 
 ning of the engine, it was held in the Supreme Court (3) that the 
 use of wood for fuel was not in itself evidence of negligence. In 
 a recent English case (4) plaintiffs cart with a load of straw was 
 passing over a bridge, when the defendants' locomotive under- 
 neath emitted a number of sparks, with the result that the straw 
 blazed up, and so rapid was the destruction of the straw and cart 
 that the horses were barely saved. Tlie judge inhtructed the 
 jury that the construction of the engine not having been ques- 
 tioned, there was no liability on thepartof the defendants, unless 
 the plainii.T could show there had been carelessness in working 
 the engine. The jury, however, foimd for ihe plaintiff for the 
 full amount claimed. 
 
 Where a train was allowed to run for ninety milts without the 
 rsh-pan having been emptied, and ignited substances were found 
 upon an adjacent manure lieap which were too large to pass 
 througli tiie net of a smoke otack, it was held tiiat there was 
 sufficient evidence to go to tlie jury to find whether tiie fire 
 escaped because the pan was full, and that the result might with 
 reasonable care have been avoided. Ts) 
 
 The question of the contributory negligence of the plaintiff 
 in regard to the object burned is also a subject possessing con- 
 siderable difticulty. 
 
 Chief Justice Sir j. \V. Ritciiie, in the case of The Nav Bruns- 
 wick Ry. Co. V, A'obiiis^i/i, (6) expressed tlie view that if the 
 
 n 
 
 f I) Kiyl)y ',-. Hewitt, Excli. 240. 
 
 (2) See also Pennsylvania Ry. Co. r. Keir, 62 I'tnn. 35.1; Monisonr'. 
 Davis &. Co., 8 Ilaiiis 171 ; Kellogg 7'. Chicngo 6t X. K. Co., 26 Wis. 223. 
 
 (3) New IJrunswick Ry. Co :'. Rohinson, li S. C. R. 688. 
 
 (4) Rinimer '<■. London 6t Norih Western Ry. Co-, 15 1-. N. 366. 
 
 (5) McGihbon :■. Nonliein Rv. Co.. I4 0nt. A. R. 91. 
 
 (6) II S.C. R. 68S, 
 
 ^ 
 
' ill 
 
 4t8 
 
 The Railway Law of Canada. 
 
 
 ill 
 
 plaintiff chooses to place in his barn combustible materials, and 
 to leave it in such a condition that such combustible materials 
 are exposed to sparks from the engine, provided with all tlie 
 usual and requisite appliances for preventing the escape of 
 sparks, and if an accidental spark should ignite such combustible 
 material and cause the destruction of the barn and its contents, 
 llie owner must subnit to the risk, as a consequence of the legis- 
 lature having pernii ted the use of a dangerous agent. There 
 are reciprocal dutits imposed as well on those who have combus- 
 tible material near to the railway, as on the railway company to 
 use reasonable care and precaution. The correct rule was laid 
 clown in Col/ins v. N, Y. Central <& IJutisoK River Ry. Co., (i) 
 viz. : " that onewliose property is exposed to risk or injury from 
 or by reason of its location, as where it is situated in a position 
 of constant exposure to tire on the side of a railroad, must use 
 such care as prudence would dictate in view of the unavoidable 
 perils to whicli it is subjected." 
 
 Mr. Justice Strong, however, dissented from this view, and re- 
 ferred to two American cases in support. ( 2) The other judge 
 expressed no opinion. And in a later New Brunswick case, (3; 
 where tlie facts were very similar, it was held that where the sills 
 of a barn rested on blocks and were about eight inches above the 
 ground on which the hay rested, so that part of it was exposed 
 below the sills, this was not evidence of contributory negligence 
 on the part of plaintiff. From this opinion the Chief Justice and 
 Wetmore, J., dissented, agreeing with Ritchie, C. J., in N ;/ 
 Brunswick Ky. v. Robinson, But in a recent Scotch case, (4) 
 where a flax store, situated in close proximity to a railway, had no 
 windows, and when light was required it was obtained by open- 
 ing the doors of the store, and on one occasion when two doors 
 were open, one on the next side to, and one on the side away 
 from, the raibvay, a spark from a passing engine was blown in at 
 the former, and falling among some loose flax, caused a fire, 
 which destroyed the store ;— it was held that the plaintiffs were 
 
 (1)5 Hun 503. 
 
 (2) Kero r'. Uutfalo, etc., Ky. Co., 22 N.V. 209 ;Giaiiil 'i'runk Uy. Co. :■. 
 Richardson, 91 U. S 454-473. 
 
 (3) Campbell ;■. McGregor. 29 N. U. 644 (18S9). 
 
 (4) Foit GLasijow Sailcloih Co. r'. Caledonian Ry. Co., 29 Scot. Law 
 
 1^ 
 
 jili 
 
Negligence. 
 
 413 
 
 not barred by contributory negligence from claiming damages. 
 
 (I) 
 As to whether the Statute 14 Geo. 3, cli. 78, sec. 86, in 
 
 force in Ontario, enacting that " No action, suit or process shall 
 be iiad, maintained or presented against any person in whose 
 house, chamber, stable, barn, or other building, or on whose 
 estate any fire shall accidentally begin, nor shall any recompense 
 be n)ade by such person for any damage suffered thereby, any 
 law, usage or custom to the contrary notwithstanding" — 
 applies in these cases, it was held in The Canada Southern Rail- 
 7K.'ay Company v. Phe/J)s, (2) that it in no way relieved persons 
 from liability for their own negligence or from responsibility for 
 the negligence of their servants. 
 
 Where a railway company incorporated under the laws of 
 Ontario, granted running powers over their line to a foreign 
 company, it was recently hi Id by the court of Appeals for thai 
 province, that the Ontario company could not, without legisla- 
 tive sanction, confer upon such foreign company tlie immunities 
 and privileges tiiey possessed, and the foreign company would 
 be subject to the common law liability imposed upon a person 
 using a dangerous and fire emitting machine, and held liable in 
 damages without proof of negligence, (3) 
 
 STi In the Canada Atlantic Ry. Co. v. Moxlcy, (4) it was Eviuciict.- in 
 held (Henry, J,, dissenting) that the locomotive superintendent "'"^'^ ^^''^ '^ 
 and locomotive fireman of a railway company are " officers of the 
 corporation," who may be examined as provided in R. S. O. 
 (1877), c, 50. s. 136, and the evidence of such officers as to the 
 condition of the respective engines, and the difference as to 
 danger from fire between a wood-burning and a coal-burning 
 engine, taken under said section, was properly admitted in the 
 trial of this cause; and certain books of the comi)any containing 
 
 (r) This case went to the House of Loids, and it was there decided that 
 the company was not negligent, 30 Scot. l,aw Kep. 587 ; and see Can. Central 
 Ry, Co, r. McLaren, 8 Ont, A. R. 564, Confirmed in P, C, Roliinson's 
 Dig, 18S2-18S4, pp. 682-683 ; Hill -o. Ontario Sinicoc 6t Huron Ry. Co,, 13 
 U. C. Q, li. 503, 
 
 (2) Id S. C, R. 132, 
 
 (3) Welleansf. Can, Southern Ry, Co., 21 Ont. A. R, 297. 
 
 (4) 15 S. C, R. 146 ; see .also McLaren :■, Can. Cent. Ry, Co,, 8 Ont, A, 
 R, 564. 
 
 ^ > 1 
 
414 
 
 'I'liE Railway Law ok Canada. 
 
 f' 
 
 I I 
 
 ' .1' 
 
 statements of repairs required on the engines in question, among 
 others, were also properly admitted in evidence witliout caHing 
 the persons by whom the entries were made. 
 
 The rule in ^8. The jurisprudence in Quebec, though showing a consider- 
 Quebcc as to jjj^]^ variance, has a tendency to reject the principle of the Knt^lish 
 
 tlaniaye bv . . •' / ' . ' , , • > 
 
 fire. ' law that railway companies, beuig authorized by liie Legisla 
 
 ture to use locomotive engines, are not liable for d.imnge caused 
 
 by fire from sparks issuing from the same, provided tiiey have 
 
 taken every precaution in tiicir power, and adopted every means 
 
 which science can suggest, to prevent injury from fire, and are 
 
 not guilty of negligence in the management of the engine, (i ) 
 
 The Quebec Courts have leaned rather towards the doctrine 
 adopted in France, that railway companies are responsible for 
 damage from fire caused by their engines, notwithstanding that 
 every possible precaution and device has been resorted to to 
 prevent the issue of sparks ; — in other words, whether there is 
 negligence on the part of the railway company or not. (2) 
 
 The earliest case of importance bearing upon this question is 
 that of the Quebec I'irc Assurance Company v. .S7. Louis ; (3) 
 where the Privy Council, on an appeal from Quebec, held the 
 proprietor of a steamboat responsible for damage resulting from 
 sparks escaping from the smoke-stack of the steamboat, on the 
 ground that the pi|)e was not provided with a proper screen or 
 spark arrester. This decision would appear to place tlie lia- 
 bility u])on the question as to whether there was negligence or 
 not, apart fiom any question as to the immunity of railway 
 companies exercising their statutory powers without negligence. 
 This decision, however, does not seem to have had inucii weigiu 
 with (Quebec Courts, as will be seen from the following review of 
 the jurisprudence : — 
 
 In 1SS2, in a case of /t^r/t'/// v. The South Eastern Raiiicay 
 Company., (4) the Superior Court held, that notwithstanding that 
 the company were authorized to work the railway by public 
 statute of the province, and had taken all possible precautions 
 
 (1) Vaufjlmn v, T.alT \'ale Railway Co., 5 H. i*v: N. 670 ; see supra iin, 
 85,187. 
 
 (2) Uallo/. 1859-2187 ; 2 Soiird at Mo. 1054 ; 12 Deniolomhe p. 142 j 
 6 Laurent Nos. 148 and 149 ; 2 Aiibry & Ran, No. 194 ; Palaa des Che. de 
 Fer, Nos. 602, 603. 
 
 (3) 7 Moore 286. (4) M I,. K. i .S. C. 316. 
 
 
Ne(; LICENCE. 
 
 415 
 
 by providing the locomolive pipe with an approved appliance 
 for preventing llic escape of sparks, tiiey were !iai)le for llie dam- 
 age occasioned by the sparks escaping (roii tlie pipe; the Court 
 citing from Dailoz, (i) and adopting the French rule as there ex- 
 pressed, and holding that it was applicable under Art. 1053 of the 
 Quebec Civil Code. The reasoning by which this holding was 
 arrived at is not very evident, inasmuch as tlie liability under 
 Art. 1053 '^ clearly placed ui)o:i the basis of fault or negligenc". 
 This decision of the Superior Court was followed by another 
 of the Court of Api)eals, in the case of the Gratul Trunk Rail- 
 way Company v. Mcegan (2) decided in 1885. In that case, 
 Cross, J., rendering the judgment of the Court, after referring to 
 the company's defence that they had adopted every precaution 
 by knowii appliances to prevent the escape of s|)arks, and liiat, 
 consequently, they were not liable, said : "This raises a very im- 
 " portant question, and probably by the rule of the English Law 
 " api)licable to the case, the comi)any might beheld excused, but 
 " I believe our rule has always been different. Our courts have 
 " continually held that a parly exercising a dangerous occupation 
 " is responsible to his neighbors for the damage that may be 
 " caused to them by the hazardous nature of such occupation.'' 
 The only case cited by the learned judge was that of yX/^ Quebec 
 Fire Assurance Company v. St. Louis, (3) which certainly did 
 not hold the defendant liable on the grounds stated by the 
 learned judge, but distinctly held that his liability was on account 
 of negligence. The learned judge also referred to the casein 
 Dailoz ; (4) but it should be remarked that the railway legislation 
 in France is very different from that of this country ; and there is 
 a provision in their statute law which has been held to have the 
 effect of making railway companies liable for all damage which 
 they may commit in the operation of the railway, whether 
 oi)erated negligently or not. (5) 
 
 In a subsequent case o^ Dussault v. The North Shore Rail- 
 way Company, (6) decided in 1886, the Court of Appeals held • 
 that a railway company are responsible for damages caused by 
 fire started by sparks escaping from the smoke stack of one of 
 
 (I) 1859-2-187. 
 
 (3) Ulii supra. 
 
 (5) 2 Sourd.it iS'o. 1054. 
 
 (2) M. I.. R., I n. B. 364. 
 (4) 1859-2-187. 
 (6) 14 K. L. 207 ; 12 Q. L, R. 50. 
 
Il 
 
 ^f.p 
 
 (^ 
 
 1 1 ^^'^ 
 
 416 
 
 'liiK Kaiiavav Law ok Canaim. 
 
 lliL'ir engines, wlien by llie closing of tlie clamper the emission of 
 sparks could liavc been prevented, tlnis apparently jjutling the 
 liability on the ground of negligence. 
 
 Ill 1889, however, Mr. Justice Andrews, in the Superior Court, 
 in the case of Leonard v. 'Ihc CaiiatUan Pacific Railway Com- 
 pany, (i) returned to the doctrine of the French law, and dis- 
 tinguished the Q'A.^i^ oi Robinsons . The New Brunswick Railniay 
 Company. (2) 'I'he learned judge said: (3) " If it be admitted 
 " that the defendants have used the best and safest engines ob- 
 " tainable, I think they are nevertheless liable, on the same prin- 
 " ciplc on which anyone exercising a calling dangerous to his 
 " neighbors would be condemned to repair any damage he 
 '' might thereby cause, even thougii his calling were lawful, and 
 '' lie had used his best enilcavors to render it harmless." 
 
 In the same year (1889), the Court of Aiijieals, in the case of 
 The North Shore Railway Company v. McWillie, (4) rendered 
 a decision which appears to have been based purely upon a 
 question of fact as to whether the fire had been caused by siiarks 
 coming from the locomotive ; and the question at issue is only in- 
 cidentally touched upon by Church, J, in liis opinion, where he 
 says : (5) " The defendants also seek to avoid responsibility on 
 " the ground that their locomotive was protected as far as jiossible, 
 " and that the screen was in good order, they bringing into 
 " Court two or three experts to say they never knew a locomo- 
 " tive so protected to cause damage; but the testimony of these 
 " men is overborne by the direct and positive evidence of the 
 " persons who witnessed the whole occurrence, and who prove 
 " that the tire was caused by the sparks from the train. We think, 
 " therefore, the company was properly held responsible." The 
 judgment of the Court below, however, so confirmed, was based 
 upon the rule laid down in the case of The Grand Trunk Rail- 
 way Company v. Meei^an. (6) The learned judge in the Superior 
 Court, after referring to tiie French law with regard to the ob- 
 ligation to use one's property so as not to do injury to one's 
 neighbor, expressed himself as follows: (translated) " Without 
 "doubt the operation of railways is in the public interest, and their 
 
 (I) 150. L. R.93. 
 
 (;,) 15 C^. L. R., at page 95. 
 
 (5)M.L. R. 5(K U., at page 142 
 
 (2) II S. C. R. 688. 
 
 (4) M. L. R., 5 Q. ii. 122. 
 
 (6) M. L. R., I (). 15.364. 
 
 ti 
 

 ^^v;/*-* 
 
 y 
 
 .1 
 
 7 
 
 / 
 
 Neomoenck. 
 
 / / n\dA^ 
 
 / 
 
 v--"/ 
 
 417 
 
 " ncij{lil)ors are ohliycd lo suff^-r llu* ordinary inconveniences 
 " rcsiillinj; tliertfron), sucli as tiie ordinary noises wliicli are 
 " made by passing locomotives and trains, eic. but thatdoes not 
 " go so far as to render railway companies exempt from rcspon- 
 " sibility for fire caused by sparks. Tliis is not an ordino ut. in- 
 " convenience resulting from the operation of railways." (1) 
 'l^tm-rftse weiu to llie Supreme Court. {2) where the judgment nf 
 the Court of Ai)peals was confirmed on the (|uesti(Jii of fact ; 110 
 reference being made by any of their Lordships to the question 
 under discussion, though the holding of the case as reported is 
 that there was sufficient evidence of negligence to make the rail- 
 way comi>any responsible for the dam;ige caus.d by the tire. 
 
 In a later case, in 1891, the Court of Appeals of Quebec again 
 held a riilway company lial)Ie under like circumstances ; (3) and 
 in a still more recent case, in 1893, (4) the same court dismissed 
 the action against the railway company, on the ground that ilie 
 ])roof did not establish that the fire was started by sparks from 
 the locomotive. 'I'iie formal judgment of the Court, however, 
 gives as a reason for the dismissal of the action, that the proof 
 did not shew that the fire resulted from any act, imi)rudence, or 
 want of skill on the part of the railway company ;— cpioting the 
 very langunge of Art. 1053 of the Quebec Civil Code. 
 
 The most recent decision on this point is that of the Superior 
 Court in the case o^ Sen e sac v. The Central Vermont Railway 
 Company^ (5) where the action was dismissed, on the ground that 
 there was no proof of fault or negligence on the jiart of the rail- 
 way company. It seems lo the author that this decision enun- 
 ciates the true doctrine which should be adopted in such cases, 
 and that the railway com])any's liability must depend upon the 
 presence or absence of negligence in the operation of the rail- 
 way ; they being held to the strictest possible diligence, consistent 
 with the practical operatidii of the railway, in the exercise of their 
 statutory powers ; and that so long as these i)owers are exercised 
 without negligence, and with all due and proper [precautions, the 
 Lomi)any should not be held liable. (6) 
 
 (I) M. 1,. R., 5 Q. B. at pngu 130. (2) I 7 S. C. I'. 511. 
 
 (3) Cie fie Ch. de I'er Atl. an N. O. r'. Uetomnay, 21 R ],. iqi. 
 
 (4) Ceiitial Veniiont Railway Company -,•. Monlni.ign) InsuiancL' Com- 
 pany, Q. R. 2, Q. B. 450. 
 
 (5) S. C Quebec, March, 18(15 > conliinied in Review (Jett^ J. dissent- 
 ing), 29tii I'ebiuary, 1896. (6) See iupia. pp. 85, 187 and 4i.)7. 
 
 27 
 
 m 
 
 3 '; :\ 
 

 i'^f 
 
 
 ||i 
 
 In general. 
 
 Contract of 
 cairiaije of 
 goods. 
 
 CHAPTER XII. 
 
 THE MEASURE OF DAMAGES. 
 
 1 . /// general. 
 
 2. Contract of carriage of goods . 
 
 3. Breach of contract . 
 
 4 . Injuries to persons, 
 
 5 . Injury to cattle. 
 
 1. The general doctrine as to the measure of damages in cases 
 of contract is simimarily comprehended in a few pages oiPoi/iiei , 
 on Obligations. (1) 
 
 'I'his simimary statement is referred to in most of the leading 
 cases, and forms, confessedly, tiie basis of the jurisprudence of 
 P'.ngland and America upon the subject. Its substance is found 
 in Articles 1073, 1074 ct scq. of the Quebec Civil Code and 
 Article 1928 of the Louisiana Civil Code of 1826. It is said by 
 Sedgwick, on the Measure of Damages, (2) to be " the clearest 
 and most definite rule that can be framed in this perplexing 
 matter." The above articles of the Quebec Code read as fol- 
 lows: — Art. 1073. — "The damages due to the creditor are, in 
 general, the amount of the loss that he has sustained and of the 
 profit of which he has been deprived" Art. 1074. — " The debtor 
 is liable only for the damages which have been foreseen or might 
 have been foreseen at the time of contracting the obligation ; 
 •when his breach of it is not accompanied by fraud." 
 
 2. The amount of damages recoverable from a carrier is such 
 as would naturally result from the breach of the contract, whether 
 as the ordinary consequence of such a breach, or as a con- 
 sequence which may, under the circamstances, be presumed to 
 have been in the contemplation of both parties at the time they 
 made the contract as the probable result of the breach of it. (3) 
 
 (1) Ncs. 159-160 f/ sei]. : and see lieluin i'. Grrinil Trunk Ry. Co.. 11 Q. 
 L. R. 60. 
 
 (2) Vol. 1, p. 67. 
 
 [T,) Iladley t. Ba.xcndale, 9 Exch. ^.\{, 23 L. J. Ex. 179 ; Hornet. Mid- 
 land Ry. Co,, L. K., 8 C. r. 131, 42 L. J. C. P. 59; Wilson v. Lan. & 
 York Ry. Co., 9 C. B. N. S. 632 ; Jameson v. Midland Ry, Co., 50 L. T. 
 426 ; Redniayne r . G. W , Ry. Co.. L. R., 1 C. P. 329 ; in the United States, 
 see Redfield (Carriers, § 32), and Hutchinson, § 772. 
 
 m 
 
The Measure of Damagks. 
 
 419 
 
 
 i 
 
 A carrier's contract should be considered, in respect to dam- 
 ages, without reference to decisions upon other kinds of con- 
 tracts supposed to be similar. Contracts to build a boat, to 
 repair machinery, and to carry a shipment, differ absolutely from 
 one another on the very important point of implied notice. He 
 who repairs machinery knows, or should know, its probable use ; 
 but a carrier may take a shaft across the country witliout knowing 
 whether it is intended for a steamship or a sugar house. 
 
 The point to be examined in each case is really this : — What 
 was the tacit agreement between the parlies at the time of tlie 
 contract, as regards damages claimed? (i) 
 
 Where, from the nature and description of the gc^ds, it is 
 evident that they are intended to be resold at a profit, it will be 
 considered that there has been an implied agreement betwen 
 the parties that if the carrier, by nondelivery, deprive the shippers 
 of iii?se })rofits, lie will be liable in damages for tiie loss. Such 
 (iamagos would be lho'>e which, according to the principle above 
 laid dowii. ei^'ler were foreseen or might have been foreseen. (2) 
 But damages for loss of custom arising from such nondelivery 
 are too remote to be held to Iiave been in the contemplation of 
 the parties. (3) This is undoubtedly in accordance with the rule 
 of the English law. Thus, J/aj'uc, in his treatise on Damages, 
 says : " But profits and advantages, which are the direct imme- 
 diate fruits of the contract entered into between the parties, stand 
 upon a diffi.'rent footing. These are part and parcel of the con- 
 tract itself, entering into and constituting a portion of its very 
 elements, something stipulated for, the right to the enjoyment of 
 which is just as cle,": and plain as the fulfillment of any other 
 stipulation. They arc ])resumed to have been taken into con- 
 sideration, and deliberated upon before the contract was made, 
 and formed, perhaps, the only inducement to the arr.-'ngement. (4) 
 
 The British Columbia case of Hamilton v. Hudson Bay Co., 
 and lrvinf^& Briggs, (5) would appear to he based upon a mis- 
 
 »t 
 
 (1) 24 Uemolomhe, p. 566. 
 
 (2) lieiian r. Grand 'I rmik Ky. Co., S. C. 1S85, ir (). L. R. 60, ana 
 Englisli and Frenul) authoiilies there cited. 
 
 (3) Hehan r . Grand Tnink Ry. Co., S. C. 18S5, 11 (,). L. R. 60, and 
 Enghsh and Fiencli authorities there cited. 
 
 (4) At p. 43; and see 'I'lie Parana, Ct. App., 1S77, 1,, R., 2 Prob. Di". 
 18 ; Mast "ton f. Mayor of Hiooklyn, 7 Hill 61. Adopted by Mayne in the 
 
 yassage a e (luoted. 
 
 (5) Par. , Vol. 2, B. C. Law Rep., p. 176. 
 
 i( 
 
420 
 
 Thk, Railway Law of Canada. 
 
 1 iMj 
 
 1 II ■: 
 
 1 j. 
 
 II: r 
 
 I I i "J I 
 I I 
 
 'I I V 
 
 ' 7 
 
 I 
 
 ' ,t 
 
 conception of the case of llrithh Columbia Saw Mill Co. v. 
 Nt'ttleship, del ided in England in I.S6.S. (i) The Court, in the 
 first named case, refused to allow a trader tlie expected profits on 
 goods sliiiJped h\ him, wliich were destroye I, and iicld that such 
 exi)ected ])rofits were too remote to be included in a verdict, and 
 that, when there has I)een indefinite loss; or damage from delay, 
 beyond the 'uvoice or actual value of the goods lost or mislaid, 
 the reasonable and proper measure of compensatioii is always 
 lield to be attained by gi\ing interest on the actual value, citing 
 Jh-itiih Coliiinl'ia Sa7c> Mill Co. v. Nettlcship. (2) This case 
 arose through a Ineacii of contract on the j^art of a carrier in not 
 delivering a box of machinery for a mill, thus causing a long 
 delay in replacing it. The damages claimed were for the stoppage 
 of the works luring the time that the whole machinery remained 
 useless by re;;son of the absence of the missing box. The Court 
 said that, although the carrier certainiy knew that the box con- 
 tained part of the machinery, yet it was not shewn that he knew 
 it contained a material |)art, and that without it none of the 
 machinery could be put together. If he had no such knowledge, 
 it could not be said that lie intended to Lecome responsible for 
 the consequences which were sought to be imposed upon him. 
 Such damages must be purely speculative damages. (3) And, 
 again, the carrier is not to be made liable for damages beyond 
 what may fairly be presumed to have been contemplated by the 
 parties at the time of entering into the contract. (4) 13ut the case 
 oi Hamilton v. HuiliOiis Bay Co, d a I. (5) belongs to tlie same 
 class of cases as Bcliaii v. i'r. T. Ry. Co., (6) vii^;., ihe shii)ping 
 of goods by a trader to be sold at a profit, and, in such cases, as 
 a general rule, the measure of the carrier's liability is the market 
 value of the shi|)meiit at its destination, comi)uted at the time 
 when it should have been delivered, less transportation charges, 
 with interest. (7) 
 
 By the destination is meant the terminus of the road, and not 
 
 (I) L ^<.. i'' . r. 499. (2) L. R., 3C, P. 499. 
 
 13) '!>•> "' )'■ 5o''' (4J ll>-. nt P- .io5- 
 
 (5) Pail 2, Vol. 2, li. C. Rep. 176. 
 
 (6) S/i/Td, p. |i I . 
 
 (7) See tlic leading c.nse in liic United .States, Gillingliam :•. Dempsey, 12 
 .S. & R. 183, PeiMi. (1.S24), and aiulnTiucs there cited : and Korl)es r. l!os- 
 lon, etc., K. R. Co., 133 Mai;s. 154. 
 
 njtwr- 
 
The Measurk of Damages. 
 
 421 
 
 
 llie final destination which the shipper nuiy intend the freight to 
 reach, (i) 
 
 Wiiere the dehvery of a box of trees was dehiyed by tiie carrier, 
 it was held that the plaintiffs were not entitled to recover for any 
 supposed damage or injury to business, or business reputation, 
 nor for expenses incurred by them in taking the trees round to 
 their custi iiers, since they would have to do that any way. If 
 ihey could not sell the trees at all by reason of the delay, the loss 
 would be the value of the trees, i'ul if the person who had given 
 (jrders for the trees took the""', after all, at a reduced price, then 
 the difference between the j.rice agreed for originally and that 
 afterwards accepted may form the maximum measure of damages. 
 
 (2) 
 
 'l"he necessary expenses to which the ov/ner of goods is put in 
 consequence of the carrier's delay to fulfill his contract aie 
 recoverable as damages. (3) But, in a Quebec case, it was held 
 that the owner of baggage mislaid by a railway company could 
 not recover for expenses incurred by him in looking after the 
 baggage, the measure of damages being the value of goods lost. 
 
 (4) 
 
 Contracts of shippers with the consignee or other persons, of 
 
 which the carrier is not notified at the lime of the shipment, are 
 
 not to be considered in the calculation of damages as against 
 
 the carrier. (5) Jkit where there is such notice, such damages are 
 
 allowed. (6) 
 
 Depreciation in the market, during delay, is not too remote for 
 
 consideration, and forms an element in 1 ii'> measure of damages.(7) 
 
 HI R. R. Co. r. Hale, I .S. W. Rep. 621, Tenn. (r886) ; Ingleflew 7'. 
 Ry, Co., 7 (Jray (.Mass.; S6 ; R. R. C". 7\ Ri-ynoUls, 8 Ran, 623 (1871); 
 R, Co. r. lltiuy, [4 HI. 156 (1852). 
 
 (2) McGill r-. G. T. Ky. Co., 19 Out. .\. R., at p. 249. 
 
 (^) I'iack : . ISixendale, I lv\ch. 4to. 
 
 (4) I'rovenclier :■. Can. I'.ic. Ry. Co., S. C. 1SS9, M. L. R. 5 .S. C y ; 
 and see, also, I )eiuiii!,' r-. Ry. Co., 48 X. H. 455 ; IngU' low v. R. P., Co., 7 
 Cray 85 Mass. : R. K. Co. f. KenuL'dy, 41 Miss. O71 : Brigs r-. Ry. Co., 2S 
 
 ISarb. SI.S' 
 
 ,5) llorner. Midland Ry. Co., I„ R ,8 C, 1*. 131 ; Thol, r . Henderson, 
 L. i;. 8(^. B. 1). 457- 
 
 16) Deniin;,' ■■. R. R. Co., 48 N. II. 455 (1869), whiiein all the lOnglish 
 authorities, previous to this ca^e, are ciiud and dlscu>sed ; Elaivey r . K. R. 
 Co., 124 Mass. 421 ; l.ani^don r'. Robertson, 15 O. R. 497. 
 
 (7) Ward I'. K. Co, 47 X. \. 29 (1871); Ctittnij,' ■■. R, ..u,, 13 
 Allen ,^8i (1866) ; .Sis.-,on r. R. Cu.. 14 Mich. 489 (1866). 
 
 :mo/' 
 
42; 
 
 The R.mlway Law of Canada. 
 
 
 Kvi 
 
 
 jiili; 
 
 
 ..^ 
 
 (' " 
 
 f '.I 
 
 Breach of 
 cor.tract. 
 
 Although this point is not free fioni doubt in England ; yet, in 
 regard to land carriage, it appears to be settled that such dam- 
 ages can be recovered, (i) 
 
 l^ut, in cases where the shipment is intended for a particular 
 market day, damages resulting from delay beyond that day, are 
 not recoverable unless ^hc carrier had express notice, or implied 
 notice from a custom so general and well known as to amount 
 thereto, that the shipment was intended for a particular market 
 day. (2) 
 
 The loss of profits from an intended special use of the ship- 
 ment are not recoverable, unless notice as to that use was given 
 at the time of shipment. (3) Such damages include damages for 
 loss of profit on a sub-sale to a purchaser, and a sum for damages 
 recovered by the sub-purchaser for breach of contract which may 
 be the sum actually recovered. (4) 
 
 Where plaintiff delivered to common carriers a roll of oil-cloth 
 to be conveyed by them, and, on arrival, it was so damaged that 
 the plaintiff refused to receive it, and brought action for the full 
 value thereof, the Court directed the jury that if they thought the 
 oil-cloth was not seriously damaged, but easily repairable, the 
 plaintiff was bound to receive it, and claim only damages ; but if 
 too seriously injured to fulfill the purpose for which he required 
 it, he might claim its whole value. (5) 
 
 3. Under the Quebec Code (6) the damages resulting from delay 
 in the payment of money, to which the debtor is liable, consist 
 only of interest at the rate legally agreed upon by the parties, or, 
 in the absence of such agreement, at the rate fixed by law — these 
 damages are due without the creditor being obliged to prove 
 
 (1) Wilson V. Lniic.ishiie & Yorkshire Ry. Co., 9 C. 15, N. S- 632 ; Collard 
 V. S. E. K. Co., 7 II. & N. 79, and see Home r'. Midland Ry. Co,, supra, p. 
 421. 
 
 (2) R. R. Co. r'. Lehman, 56 Md. 209 : Hamilton -•. R. R. Co., ^ S. K. 
 Rep. 164; North. Car. (1887). 
 
 (3) Simpson r. L &. N. W. Ry. Co , L. R., I Q. 15. I). 271 ; Cooper v. 
 Young, 22 Ga. 269. 
 
 (4) Elbinger Actien Gesselhchaft ."'. Armstrong, L. R,, 9 (^. li. 473 ; 
 Crebeit 15orgnis r'. N\ii^ent, 15 O, 15. D. 85 ; Hamilton :■. Magill, 12 L. R. 
 Ir. 186. 
 
 (5) Dodge :■. Windsor & Annapolis Ry. Co., 2 Gelder & Oxley 537 ; and 
 see llackett r. R. K. Co., 35 N. H. 390; .Shaw ;•, R. K, Co,, 5 Rich. 462; 
 S. Carolina Ry. Co. ■-. 'lyson, 46 Miss. 729; Hriggs r', R. K. Co., 28 
 IJarb. 515. 
 
 (6) Art. 1077. 
 
 i- 
 

 The Measure ok Damages. 
 
 423 
 
 any loss. Thi« is also llie law of England and the United States, 
 (i) excepting where the obligation has reference to other objec's 
 than the mere discliarge ofadebt. (2) And tliis distinction obtains 
 under the Quebec law ; for in an action by a railway company 
 against a municipality for refusal to issue debentures, tiie 
 Supreme Court held that apart from its liability for the amount of 
 the debentures subscribed and interest thereon, the municipality 
 was liable under Arts 1065, 1073, 1840 and 1S41 C. C. for 
 damages for breach of the covenant. (3) 
 
 And it was also held in tiiis case, that where a party has 
 suffered wrong, and is unable to prove the damages sustained by 
 that wrong, the Court should not dismiss his action, but give him 
 reasonable damages. This doctrine, iiowever, appears to have 
 been modified by the Privy Council in i\fcDotigal! v. AIcGrccvy. 
 (4) In this case the plaintiff transferred siiares of railway 
 stock to defendant, the former to have the right to redeem the 
 stock within ten months from date, by paying 50 per cent, of the 
 nominal amount of the share. The plaintiff made a sufficient 
 tender within the delay, but the defendant had disposed of the 
 siiares, and refused to receive the amount. 
 
 In an action of damages for breach of contract, it was held, 
 that the measure of damages was the sum which the plaintiff 
 could have obtained for the shares beyond the amount which he 
 had to pay to get them back ; and it not being clearly established 
 that he could have sold the shares for more than this amount, or 
 that the defendant had received any greater amount therefor, 
 ai)art from other and subsequent transactions, the action was 
 dismi^^ed. 
 
 Where the defendant was obliged to return the plaintiff certain 
 railway bonds, but was unable to do so owing to his having 
 sold them, it was held that he should be condemned to pa; the 
 actual value thereof at the time the bonds were acquired by him, 
 and nottheir/rt/- or nominal value. (5) 
 
 (1) Fletcher ?■. Tayleur, 17 C. li. 21 ; Loudon v. 'laxing District, 104 
 
 U. S. 77 « • 
 
 (2) Maivetti .-. vVillianis, i 1!. &^ Ad. 415 ; rrelm r . Royal Bank of 
 Liverpool, L. R., 5 Ex. 92. 
 
 (3) Corporation of Ottawa :■ . Montreal, Ottawa & Western Rv. Co., 14 
 S. C. R. 193. 
 
 (4) P. C. 1889, 12 L.N. 379. 
 
 (5) iSenecal r . Hatlon, P. C. 1S86. 10 L. X. 50. 
 
I :li 
 
 424 
 
 '1'hk Railway Law of Canada. 
 
 
 ii 
 
 II p 
 
 II i<: 
 
 Injuries "to 
 persons. 
 
 For refusal by a railway conii)any to transfer shares during 
 several monliis, the true measure of damage is the difference 
 between the price of ihi; stock at tlie time of sucli refusal and 
 the price at the time of tiie subsequent registration of the 
 transfer. (1) 
 
 Where a railway company, in breach of a contract entered into 
 by them to run trains from the eastern part of a city to liie west- 
 ern part, ceased to run buch trains, it was held, on a reference 
 as to damages, that though the actual dejjreciation of jiroperiy 
 in the western part of the city resulting therefrom was a matter 
 pertaining to tlie jjroperty owners and not to the city, yet the 
 lessened taxation resulting from such depreciation was not 100 
 remote a fact for consideration on the reference, and such a loss 
 in taxation, which could be traced to or reasonably connected 
 with ihe company's default, formed a yearly standard wiiich 
 might be capitalized so as to fairly represent the money compen- 
 sation to which the ])!aintiffs were entitled. Staled broadly, the 
 enquiry was how much less benefit had been received by the 
 municipality by reason of the railway service at one station 
 being discontinued. The personal loss or inconvenience suffered 
 by travellers or citizens from the abandonment of the station, or 
 the actual depreciation in the value of the land individually 
 owned in that neighborhood could not be reckoned as constituents 
 /(?r .yt' of the damages suffcied by the corj^oration. If the rail- 
 way company admitted that they were never again going to run 
 trains to the western end of die city, the damages should be 
 assessed once lor all, which might be done either by fixing a 
 lump sum, or dv directing a yearly payment. (2) 
 
 4, The damage which can be recovered in respect of de: th oc- 
 casioned by a wrongfid act, neglect or default is restricted to the 
 actual ])e(uniaiy loss sustiiined by the plaintiff. (3) lUit in cal- 
 culating the effect of an insurance on ciL'ceased's life in favor of 
 his widow, the amount of such policy is not to be deducted fi^ai 
 tlie amount of damages previously assessed, irrLSjjei live of such 
 consid'.^aiion. .She is bcuefiled only by the accelerated receipt 
 
 (1) G. 'J . ky. Co. 7. Wehsier, 6 L. C [. 179. 
 
 (2) Corpjiatioii of the City of St. Thomas :. Cu-ilit V.illey Kv. Co.. 15 
 O. K. 67J. 
 
 (3) ti. T. Ky. Co. ; , Jennings, 1'. C. 18S.S, 13 App. Cas. Soo, 
 
The MiiASURK ok Damages. 
 
 425 
 
 of the amount of the policy, and that benefit being represented 
 by the interest of the money during the period of acceleration, 
 may be compensated by deducting future premiums from the 
 estimated future earnings of tiie deceased, (i) 
 
 In England it has been clearly laid down that the feelings of 
 the bereaved consort, child or parent, cannot be taken into con- 
 sideration in the estimation of damages. Under the Quebec law 
 the contrary doctrine prevailed until ovei ruled by the Supreme 
 Court in Canadian Pacific Ry. Co. v. Robinson, (2) and City of 
 Montreal v. Labe/ie, (3) thus rendering the law of Ontario and 
 Quebec uniform on this point. (4) 
 
 Although, on the death of a wife caused by negligence of a 
 railway company, the husband cannot recover damages of a sen- 
 timental character, yet the loss of household services accustomed 
 to be performed by the wife, which would have to be replaced by 
 hired services, is a substantial loss for which damages may be 
 recovered, as is also the loss to the children of tivj care and moral 
 training of their mother. (5) 
 
 If the amount awarded in the Court of first instance is not 
 such as to shock the sense of justice and to mike it apparent 
 that there was an error or partiality on the part of the judge (the 
 exercise of a discretion on his part being in the nature of the case 
 required), an appellate Court will not interfere with the discretion 
 such judge has exercised in determining the amount of darn- 
 ages. (6) 
 
 Wliere the jury granted $2,000 damag> - for a supposed broken 
 arm, and the eviiicivo as to the injury being very loose, no 
 medical witncssch, iiaving been called, the Court granted a new 
 trial on payment of costs. (7) 
 
 (r) Jl>. & r.. r. Rv. Co. .Beckett, Supreme Court 18S6, 16 S. C. R. 713 ; 
 Bradburn r. G. W. Ry. Co., L. R., 10 Ex. I. 
 
 (2) 14 S. C. R. IDs. 
 
 (3) 14S. C. R. 741. 
 
 (4) As to j>ain and sutUun .is \n element ii asses^nc d.im.ige in (Jiiebsc, 
 see Auclair f. Hastien, M. 1 K.. 4 S.C. 74 ; ami in Eivla'i''- I'liiHii'^ . Lon. 
 «: i^ \V. Ry. Co. . L. R., 5 C. I'. D. 280. 
 
 (5) St. Lawrence .S: Ottawa Ry. C . l.'t, Supreim: Couil tSSj, ii 
 S C. R 422. 
 
 (6) Levi -■. Ree<l, Supreme Court, S. C. R. 482; (iin^i.Ts Ihsilets, 
 .Supreme Court, iilli Fci- , 1S81, Cassel's Diu 213 ; Ulaiicliird .'. Windsor 
 it Ann.ipolis Kv. Co., 1 Kussell & Che^ley ( N'ova Scotia) 8 ; Lambkin v. 
 South Eastern Ky. Co., V. C iS.S, ,_ ; .V|i|). c as. 352. 
 
 (7) Watson v. The NortlKim ky. Cuj., 24 V , C. O. I!. 98. 
 
 •,' i 
 
 - 
 
If 
 
 
 4a6 
 
 Thk Rah. WAV I^aw of Canada. 
 
 im 
 
 i<: 
 
 Injury to 
 caiile. 
 
 Wiierc a verdict of £50 was given against a railway company 
 for putting the plaintiff off a train, though the inconvenience 
 occasioned to him was trilling, and the conductor acted bonafule 
 under an impression that the plaintiff iiad not paid In;^ fare, and 
 without harshness or violence, a new trial was granted f.»r ex- 
 cessive damages. (1) Where tiiere are two concurring veidicts, 
 tlic Court will very rarely grant a new trial, though there are cases, 
 such a;j Gibson v. Miis/^etf, (2) wiiere tiic question being sub- 
 btanciaily a point of law, a third trial has been granted. How- 
 ever, in an early Ontario case, (3) it was held that the Court will 
 grant repeated new trials where verdicts are rendered contrary to 
 law and evidence, especially in cases affecting continuous rights. 
 But in a later OiUario case (4) it was held that although the 
 damages awarded ($300 for being wrongfully put off a train) were 
 excessive, yet, it being the second verdict obtained by the 
 plaintiff, the Court would not, on that ground, disturb the verdict. 
 In another recent Ontario case, (5) the jury assessed plaintiff's 
 damages for wrongful removal from the train at $1,000, which 
 was aflirmed by the Divisional Court; but in appeal this amount 
 was reduced to $500, as being unwarrantably large. 
 
 5. The damages contemplated by the sections of the Railway 
 Acts relating to injury to cattle on the track are actual damages, 
 and the expense and trouble a proprietor of cattle incurs in 
 lierding his cattle before the accident to prevent their escaping 
 (>n to the railway lines, on account of absence of fences, is 
 not a damage ih.it can be recovered from the railway com- 
 l)any. (6) 
 
 (1) riiintsinan v. Great Western Ry. Co., 20 U. C. Q. li. 24. 
 
 (2) 4 M. & Gr. 160. 
 
 (3) Kiiby .-. Ixwis, i U. C. (^. i;. 285 (1S43). 
 
 (4) Ciiitis 7'. G. T. Ry. Co., 12 U. C."C. I'. S9 (1862). 
 
 (5) Dancey 7'. G. 'I'. Ky. Co., 1S92, I ) Ont. A. K. 664 ; as lo ilie'niea>uie 
 of damages in cases of passengers being jiut ofl the train or being deiayeil on 
 tile journey ; See .V///^;v?, jip. 289, 3.12. 
 
 (0) i'ouchon .-'. O. & Q. ky. Co., u L. N. 74. 
 
 'hfti^Miiiiiiil 
 
 
APPKNDIX 
 
 CONTAINING 
 
 DOMINION RAILWAV ACT 
 
 (As amended to date), 
 And Concordance thermvitii of Provincial Acts 
 
 (As amended.) 
 
 Note-When a Mure comes after matter he'ra'cai brackets: thus 
 ( ){^•) the reference to such figure relates to all the matter 
 contained between the brackets so numbered. When a figure 
 occurs l>et7C'een words, such figure relates to matter to be inter- 
 pointed. . 
 
 DOMINION RAILWAY ACT. 
 
 51 VICTORIA. 
 
 CHAP. 29. 
 
 An Act respectinc. Railways. 
 
 {^Assented to 22nd May, 188S.) 
 
 HER Majesty, by and with the advice and consent of the Preamble. 
 Senate and House of Commons of Canada, enacts as 
 follows : — 
 
 SHORT title. 
 
 1. This Act may be cited as " The Raihcay Act." Short title. 
 
 INTERPRETATION. 
 
 3 In this Act and in the special Act incorporating any rail- I^erpveta- 
 way'company to which this Act or any part thereof applies, un- 
 less the context otherwise requires,— 
 
 (a^ The expression ''company" means a railway company, "Company, 
 and includes any person having authority to construct or operate 
 
 a railway ; 
 
 r. r r^ ri- ,'n <;ec ■? do) " The Company " means the company or 
 pan;^^o -led (?thr;,^i;Act to --l^-heraUway ^. «• Q , An 
 ^i2q(io); K. S. M., ch. 130, sec. 3 C^) ; K. S. N . S., ch. 5s, sec. 5 i. 5; 
 iM?.N89i,ch.i8,sec.3(2). Same as Ontavo. 
 
I l[i 
 
 iWiirn 
 
 Mi 
 
 iiH I i f i 
 
 11 
 
 The Railway T.aw of C/.naua. 
 
 "County." (/-) Tlie expression "county" includes any county, union of 
 
 Counties, riding (or like division of a county in any Province, or, 
 
 in tlic Province of Quebec, any divi>i()n thereof into separate 
 
 municipalities) (I) ; 
 
 R. S.O., cli. 170, st'C. 3 (s). First ten wonls uf aliovc .ind Ci ) •' iiisliict 
 .ind County Court Judge sliall inLludc a ju(lt,'t" of a iJisiiict Couii." 
 
 R. S.Q., Art 5129 (5), " Shall include any county, any union of countit's, 
 or any division thereof into separate municipalities. 
 
 N. li., iSgr, oil, 18, set. 3 (4). "County or District"' sliall mean County 
 Court Districts. Sec. 3 (3). '' (..'ounty Couit Jud^,'e '' shall include u judge 
 of the vSuprenie Couit. 
 
 R, S. X. S., ch. S3, sec. 5 (10). "The woid ' County ' shall include 
 county, or any division theiecf into separate municipalities.'' 
 
 (t") 'I'he expression "court" means a siii)eri()r court of the 
 Province or district : 
 
 (</) Tlie expression " departmenl " means tlie Department 
 of Railways and Canals ; 
 
 (e) Tlie expression "deputy" means the Deputy of the 
 Minister of Railways and Canals; 
 
 (/) The expression "goods" includes things of every kind 
 
 that may be conveyed ujion the railway, or upon steam vessels 
 
 or other vessels connected with the railway ; 
 
 R. S. O., ch. 170, sec. 3 (4). 
 R. S. M., ch. 130, sec. 3 ((/). 
 R.S. Q., Alt. 5129 (4;. 
 N. li., 1891, ch. iS, sec. 3 (5). 
 R. S. N. S., ch. 53, sec. 5 (9). 
 
 "Highway." (g) The expression "highway" includes any i)ublic road. 
 
 street, lane, or other public way or cominunication ; 
 
 R. S. O., ch. 170, sec. 3 (6). 
 
 R. S. (.)., Art. 5129 (6). 
 
 R. S. M,, ch. 130, sec. 3 (*). 
 
 N. B., 189I, ch. 18, sec. 3 (6). Also scjuares. 
 
 R. S. N. S., ch. 53, sec. 5 (ii). 
 
 '.' Court." 
 
 " Depart- 
 ment." 
 
 •' Deputy." 
 
 " Coods." 
 
 " Inspecting 
 Kngineer." 
 
 "Judge." 
 
 {//) The expression "insi)ecting engineer " means an engi- 
 neer who is directed by the Railway Committee or by the Minis- 
 ter to examine any railway or woiks, and includes two or more 
 engineers when two or more are so directed ; 
 
 (/) The exprcssicn "judge" means a judge of a sipericr 
 
 court. 
 
 R. .S. M., ch. 130, sec. 2 (t'). The expressions "judge in chambers '" and 
 "judge" respectively mean a judge of the Court of Queen's Bench silting 
 in Chambers. See also notes to (/') supra. 
 
Dominion anh Proviniial Raiiavav Alts. 
 
 Ill 
 
 '• Two jus- 
 tices.'' 
 
 (j) Tlie expiessioii "justice" means a justice ot" the peace "JusUcl-." 
 .ncting for tlie district, county, ridini^, division, city or place 
 where tiie matter requiring llie cognizance of a justice arises, und 
 who is not interested in the matter, (i) (and when any matter is 
 authorized or required to I)e done by two justices, the expression 
 '' two justices " shall be understood to mean two justices assem- 
 bled and acting togetiier.) (2) 
 
 K. S. O., cli, J70, sec. 3 (8). — (l) "' .iiid where tlic m.ittcr arises in it'siifct 
 of lands beinij the property <if one and tiie same party, sitiuile not wholly in 
 any one district, county, riding, ilivi>ion, city or place. The word " justice "' 
 shall mean a justice actinij for tiie (hstrict, county, ridint;, divi>ion, city or 
 ))lace where any part of sucli lands are situate, and who is not interested in 
 such matters." Thus also R. S. M., ch. 130, sec. 3 (/), and is. S. (J., Art. 
 5129 (8). N. 15., 1S91, ch. 18, sec. 3 (7). 
 
 (2) Provision as to two justices, K. S.Q.only. 
 
 R. S. N. S., ch. S3, sec. 5 (13). .Same as Quebec. 
 
 {k) The expression "lands" means the lands, the acquiring. <• r.imds."' 
 
 taking or using of which is incident to the exercise of the powers 
 
 given by this or the special Act, and includes real property, 
 
 messuages, lands, tenements and hereditaments of any tenure: 
 
 R. S. O., ch. 170, sec. 3 (1). " Lands shall include all real estate, 
 messuajjes, lands, tenements and hereditaments of any tenure." Also R. S. M., 
 ch. 130, i-ec. 3 ((?) ; R. S. Q., Art. 5129 (i). N. li., 1S91, ch. 18, sec. 3 
 (8) ; R. S. N. .S., ch. S3, sec, s (6). 
 
 (/) The expression "lease" includes an agreement for a'- Lease.'' 
 
 lease ; 
 
 K. S. O., ch, 17c, sec. 3 (2). 
 R, S. M., ch. 130, sec. 3 (/'). 
 R. S. Q., Art. 5129(2), 
 N. H., iSgr, ch, i8, sec, 3 (9). 
 R, S. N. S,, ch, S3, sec. 5 (7). 
 
 (w) The expression " map or plan " means a ground plan ■• Map nr 
 of the lands and property taken or intended to be taken. l''^"- ' 
 
 (//) The expression "Minister" means the Minister of Rail- " Minister." 
 ways and Canals ; 
 
 (t') A railway shall be deemed to come "near" to another •■ Near." 
 when some part of the one is within one mile of some part of the 
 other ; 
 
 (/>) The expression "owner," when, under the provisions of 'Owner.'" 
 this Act or the special Act, any notice is required to be given to 
 the owner of any lands, or when any act is authorized or re- 
 quired to be done with the consent of the owner, means any (i) 
 

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 4 
 
 Photographic 
 
 Sciences 
 
 Cbrporadon 
 
 as WIST MAIN STRliT 
 
 wnSTfR.N.Y. 145M 
 
 (716)t73-4S03 
 
 '^V 
 
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 iV 
 
IV 
 
 The Railway Law uk ('anada. 
 
 person who, under the i)rovision5 of lliis Act or the special Act, or 
 any Act incorporated tlicrcwilh, would be enabled to sell and 
 convey lands to the company ; (2) 
 
 U. S. ()., ch. 170, sec. 3 (9). — (I) "Corporation or ". K. S. M.,cli. 130, 
 sec. 3 U'); K. S. (J.. Alt. 5129(9); U.S. N. S., ch. S3, sec. 5 (14). N. 15., 
 1891, <-li. iS, sec. 3 (10). Same as Ont.niio. 
 
 (2) N. U. Aiklition.il, " Anil sh.iU .nlsci isul)jcct to the payment to the Crown 
 of .iny unp.iiil luiuhase money) incluile a ri.cojjnized :ipplicant for Crown 
 l^inils.'" 
 
 " K.iilway." ('/) (/Asoty//^////'/v/ /'^ 55-56 Vic.^ch. f;, sec. 1). The expres- 
 sion " railway " means any railway wliich the company has 
 authority to construct or operate, and includes all stations, depots, 
 wharves, roiling stock, equipment, i)roperty, and works con- 
 nected therewith, and also any railway bridge or other structure 
 which any company is authorized to construct imder a special 
 Act i 
 
 R. S. O., ch. 170, sec. 3 (II). "The Railway" shall mean the rail. 
 
 w.Ty anil works by the special Act authorized to l)e constructed (I) ; also K. 
 
 .S. M., ch. 130, sec. 3 (/■) ,' R. S. N. S., ch. 53, sec. 5 (i6). 
 N. IJ., 1891, cli. 18, sec. 3 (II), same as Dominion Act, 
 K. S. Q., Art. 5129 (U), same as Ontario; additional (i) " or executed."' 
 
 "Railwav (/•) The expression "the Railway Committee" means the 
 
 Committee.'" Railway Committee of the Privy Council ; 
 
 " .sheriir." (s) Tiic expression "sheriff" means the sheriff of the district, 
 
 county, riding, division, city or place within which are situated 
 any lands in relation to which any matter i« required to be done 
 by a sheriff, and includes an under sheriff or other lawful deputy 
 of the sheriff : 
 
 N. 1!. i89l,cli. 18, sic. 3(14). "Sherifl'" skill include (Deputy .SheritT), (l) 
 or other legal competent deputy; ami where any matter in relation to any 
 lands is required to be done by any .^''.eritTor Cleik of the I'eace, the expres- 
 sion " .Sherifl" or the expression " Clerk of the I'eace'' shall in such cases 
 \>e construed to mean the .Sheriff or Clerk of the Peace of the County (2) where 
 >uch lands are situate ; and if the lands in question (3) are not situate wholly 
 ill one County (4), the sanii' expression shall l)e construed to mean the SheritV 
 or Clerk ol the I'eace of any County where any partsof such lands are situate." 
 
 K. S. O., ch. 170. sec. 3(7). same as N.li., excepting (I) "under Sheriff," 
 (2) "district, county, riding, division or iil.ice,' (3)" being the property of 
 one and the same party," (4) '' district, county, riding, division or place." 
 
 R.S.Q., Art. 5129 (7), same as N.l!., e.\cepling (i) "under Sheriff," (3) 
 " being the property of one and the same party." 
 
 R. S. N. S., ch. 53, sec. s (12). Same as Ontario. 
 
 • 
 
 < . 
 
 ■I 
 
. 
 
 y 
 
 Dominion and Pkovinciai. Railway Acts. v 
 
 (/_) The expression '• Special Act " means any An iinticr '• Sin-cial 
 wliiclj llie company lias aiitliority to construct or operate a rail- '' 
 way, or whicii is enacted with special reference to such railway, 
 and includes all sucli Acts ; 
 
 K. S.O.,cli. 170, sec. 3 (I). "The special .\ct " shall be coiistnK'cUo iiiean 
 any act authorizing the construction of a railway, ami with which this .\ct is in- 
 corporate<l . ( I ) 
 
 R. S. M.,ch. 130. sec. 2 (</). Same as Ontario ; acMitinnal (I) '•.ind in- 
 cludes Ihe Railway Companies' Incorporation Act.' 
 
 R. S. Q., Art. 512S. The expression " the Special Act or charter " .shall 
 Ijeconstriiol to mean any Act, st-atute, or law aiithori/.ini; the cunstruction of 
 .1 railway with which this .section of the (Jiiehcc Consul. Ky . Act iSSo is 
 incorjwrated . 
 
 N.B., 189I, ch. iS, sec. 2 (l). R. S. N. S., ch. 53, .sec 5 (>)• ^-mie as 
 Ontario. 
 
 (//) The expression "toll" includes any rate or charge "Toll." 
 made for the conveyance of any passenger, goods, or carriage, 
 or for the colleciiun, loading, unloading, cording or delivery of 
 goods, or for svareliousing or wharlage, or other services inciden- 
 tal to the business of a cirrier ; 
 
 R. S. O., ch. 170, see. 3 (3). " ToU " shall incliule any \Mc or charge or 
 other pavment payable umler'this Act or the Special Act, for any p.issen|;er, 
 animal, carriaj-e, s4oo(ls, merchamlise, articles, matters, or things conveycil on 
 (he railway. N.'lS., 1S9I, ch. iS, sec 3(15); R. S. O., Art. 5129 (3) ; 
 R.S. N. S., ch. 53, sec S (8); R. S. .M., ch. 130, sec. 3 (. )• ^anie .is 
 Ontario. 
 
 (;■) Tlie expression '• iratiic " includes not only passengers . TraiVic."' 
 .md their baggage, goods, animals and things conveyed l>y rail 
 way, but also cars, trucks and vehicles of any description adapt- 
 ed for running over any railway ; 
 
 Iw) The expression '• the undertaking" means the r.iiUvay> " The umler- 
 ^ . . ^' N . • 1 . taking, 
 
 and works, (if whatsoever description, (i) which the company 
 
 has authority to consiruci or operate; 
 
 R. S. O., ch. 170, sec. 2 (4),— (l) " by the special Act aiitliorizol to Ik- 
 excciited." R.S. M, ch. Mo. sec. 2 (/); U.S. <J., Art. 5128 Ui; •< 
 .S. N. S.,ch. 53, sec. 5 (4). N.I!., 1891, cii. IH, -ec. 2 141. Same as 
 Ontario. 
 
 (x) Tiie expression '-working expenditure" means .md in- •• Working ^ 
 
 eludes all expenses of maintenance of tne railway, andofihe sta-*-'-''!"^"''''""- 
 
 lions, I)uildings, works and conveniences belonging thereto, and 
 
 of the rolling and other slock and movable plant used in the 
 
 working thereof, and iilso all such tolls, tents or annual sums as 
 
 are paid in rcspM t of property leasetl to or held by the company, 
 
 
VI 
 
 'I'liK Railway I.aw ok Canada. 
 
 t '■ 
 
 apart from the rent of any leased line, or in respect of ;lie hire 
 of engines, carriages or waggons lei to the company; also, all 
 rent charges or interest on the puicliasc money of lands belong- 
 ing to the company, piirciiascd luil not paid for, or not fully 
 paid for; and also all expenses of or incidental to working the 
 railway, and the traffic thereon, including stores and consumahle 
 articles ; aUo, rates, taxes, insurance and coinpensalion for ac- 
 cidents or losses; also, all salaries and wages of persons em- 
 ployed in and about the woiking of the railway and traftic ; and 
 all office an.l management cxpenser-, including directors' fees, 
 agency, legal and other like expenses ; and generally all such 
 charges, if any. not [above otheiwise specified, as in all cases of 
 Knglish railway companies are usually carried to the debit of 
 revenue, as distinguished from capital account ; 
 
 uliLii iaiKl> ^ ,,j \\))j>ii any matter arises in respect of any lands whidi arc 
 
 nie not siIili'l- • ^ ' ' ^ 
 
 wholly in uiic the pro| erty ol one and the same person, and which are not 
 
 district. situate wholly in any one district, county, riding, division, city 
 
 or place, the expressions "clerk of the peace," "justice" and 
 "sheriff" respectively, mean any clerk of the peace, justice or 
 sheriff for any district, county, riding, division, city or jilace 
 within which any portion of such lands is situate ; and the ex- 
 l)ressions '•clerk of the peace" and "sheriff" resjjectively in- 
 clude the like persons as in other cases. 
 ."-"ce y////v (<) and (/). 
 
 A])plicaUijn 
 of Ael. 
 
 AIM'I.K ATION UK Till', ACT. 
 
 •i. This Aci, subject to any express provisions of tlie special 
 Act, and to the exception hereinafter mentioned, applies to all 
 persons, companies and railways within the legislative authority 
 of the Parliament of Canada, except Government railways. 
 
 K. S. O. , cli. 170, SIC. 4. " Where not otherwise expressed, this (and the 
 foUowiiii; >ecii<)ns 10 section 44 inclusive) (I) shall apply lo every railway 
 which is sulijccl lo the I^'i;islaiive authority of the Legislature of this Pro- 
 vince (and has been authorized to Ix.' conslrucled by any special .\ct of the 
 late Province of C.\nada or of ihis Province, passed since ihe 3ulh day of Au- 
 gust, 18511, (2| or is authorized lo be constructed by any special Act passed 
 after this Act takes ellect ; (t,) and ihis .\ct shall lie incorporated with every 
 such special Act ; and all the clauses and provisions of this .Act, unless 
 they are expressly varied or excepted by such siiecial Act, shall apply 
 to the undertaking authoiized thereby, so far asapplicable to the undertakinj;, 
 and shall, as well as the clauses and provisions of every other .Vet incorpor- 
 ated with such special Act, form part of such special .\ct, and l)e construed 
 toi^ither iherewitli as forming one .\ct." 
 
 7 
 
Dominion ani> Provincial Railway Acts. 
 
 Vll 
 
 R. S. M., cli. l,;o, s;c. 4, same as Ontario, excepting (11 " Act," (2) omit- 
 ted, (3) additionai, "oisincf tlie 2Stli May, 1881." 
 
 K. S. (J., Art. 5125, » Aiticlos 5128 to 518 r. both inclusive, apply to 
 every railway constructed or to lie hereafter constructed, and shall, in so far as 
 tiiey are applicable to such undertakinij, and unless tliey are exjjress') varied 
 or exiepted by the charter or special Act, be incorpo aled with the charter or 
 special Act, form part thereof, and be construed acionlingly .' 
 
 N. li., 1S9I, ch. 18, sec. n (as aniende<l by 56 Vic, th. 9). 
 
 " Where not otlicrwise expressed, this ami ihcfullowinj; sections, to pection 
 ^5 inclusive, shall apply to every radway which is subject to th-.- legislative 
 authority of Jie Legislature of this Province, and is authorized to be con- 
 structed l)y any special Act passed during this present session or after this 
 Act tikes effect, and shall also apply to every railway company which shall, 
 after the passage of this Act, elect to become subject to this sectio'i by serv- 
 ing a written notice of such election under its seal upon the Provincial Secre- 
 tary, whose duty it shall be, at the expense of the company, to publish a notice 
 of such election in the Royal (Ja/.ette, f.ir at least four consecutive issues im- 
 med;..tely subseqaent to such election, and the said sections of this Act, from 
 
 4 to ^5 inclusive, --hall be, deemed to be incorporated with every sucii special 
 Act, or with the Act incorporating said company s) making ^uch election, 
 and all the provisions of such secii jns, unless they are expressly varied or ex- 
 cepted by such speci.il Act, shall apply to the undertaking authorized thereby, 
 so far as ai)plicable to the undertakin,.^, and shall, as well as the clauses and 
 ])rovisions of every other Act incorpoiai'jd with such sjiecial Act, form a part 
 of such special Act, or incorporating Act, and be construed together therewith 
 as forming one Act." 
 
 R. S. N. S., ch. 5^, sec. I. " The provisions of this chapter from section 
 
 5 to section 33 both inclusive, being part 1st of this chapter, sh.all apply to 
 every railwav constructed and in operation, or hereafter to be constructed, 
 under authoritv of any Act passed by the Legislature of Nova .Scotia, and 
 .shall, so far as tliey are applicable to the undertaking 1)2 incorporated with 
 the Special Act, form part thereof, and be construed as forming one act, 
 unless ihey are inconsistent with or are expressly v.aried, or excepted by the 
 Special Act or olhji .\ct of the Legislature of .Vova Scotia.V 
 
 4. Ill ad lilion, all the i)rovisions of tliis Act relating to any Andofcer- 
 siibject or matter within the legislative authority of liie P''""*" s?o"s''|,°J'eor. 
 iiient of Canada, and for greater certainty, but not so as to res- 
 trict the generality of the foregoing terms, ail provisions relating 
 
 to railway crossings and junctions, offences and penalties and 
 statistics apply to all persons, companies and railways, whether 
 otherwise within the legislative authority of Parliament or not 
 
 5. Tiie provisions of this Act, from section thirty-two to sec- Application 
 
 ' . . . , , of sections 32 
 
 tion eighty-nine, both inclusive, do not apply to every company ^^ g^ 
 
 and railway within the legislative authority of the Parliament of 
 
 Canada, but apply to — 
 
 (a) Every company whose authority to construct or operate 
 
 any railway is derived from the Parliament of Canada, and to 
 
m 
 
 vili 
 
 'I'm; Raii.wav Law ok Canaha. 
 
 I ! 
 
 ' lb 
 
 ilii! 
 
 
 i I' 
 
 lb I 
 
 
 f 
 
 every railway constnitlcd or to he constructed under ihc author- 
 ity of any Act pass-ed l)y the Parliament of Canada ; 
 
 (h) Every company and railway to which such ptovisions are 
 made applicable, as hereinafter provided ; 
 To form part 2. Such provisions shall, in so far as they are applicable to the 
 "' ^1 '•-''•■'•''' ^'^*- undertaking, and unless they are expressly varied or excepted 
 therefrom by the special Act, be incorporated with the special 
 Act, form part thereof, and be construed therewith as forming 
 one Act ; 
 Kxceptioii of 3. (Any of such provisions) (i) may be exce|)ted from incor- 
 certain provi- poration with the sijccial Act, by cnaclinc;, in such special Act, 
 that the sections of this Act proposed to i)e excepted, referring 
 to them by the numbers which they bear respectively, shall not 
 be incorporated with such special Act, which shall thereupon be 
 construed accordingly. 
 
 U. S. n., Alt. 5126, same as pec. 5 (3) Dom. Act, txcepting (1) "Arti- 
 cles 5128 to5lSi.'"' 
 
 K. S. Q., .\it. 5127. " Articles 51S2 to 5221, Iwlli inclusive, apply to ail 
 railways in couifc of construction i)y t!ie tioveinmenl of the Province ofc^ue- 
 liec. ami the propeity of tlic I'lONince of (JuiIkc, in so far as they are not in- 
 consistent Willi any sjieci.il Act les] ectiii^ iheni, to all railways, which have 
 l)een or which nuiy l)c constructed umlcr the authority of any charter granlid 
 liy the Legislature of the Clovein nt of this Province, ami to all companies 
 incorporated for their construct ior .n<l woikiiif; ; suliject always tt) any pro- 
 visions hereinafter made as to the application of any ariicii- or provision of 
 ilii?- ,section to any lailway, ur as to th.e lime from which it is to be hi;ld as so 
 applying." 
 
 N, H., 1891, ch. iS, stc, 5, renaled \>y 56 \'ic.,ch 
 Pominion Act. 
 
 H. S. M., ch. 130, iic. 5. •'K\vr\ s] ccial Railway 
 .\ct . and for the purpose of incoriioiaiin!; this .\ct or 
 
 with a special Act, it shall besuflicient in such .\ct to enact, that theclau.ses ol 
 this .\cl, with rt^pect to lie matter so jiroposcdto he incorporated, referrintj 
 to tlie sr-.nie in lln' woid (v woids at the I i;ul ofand inlroiluclory to the enact 
 mint will) lespccl lo such n alter, shall he inccrporalid with the speci.il .Act, 
 and theieipon all Ihe clautes ai.d piovisions (jf this .\tl, with lespecl to the 
 mailer so incorjioratcd, shall, save in so far as lliey are exprissly vaiied or 
 excepted liy the sjecial .\ct, foini part thereof, and the special .\ct shall oe 
 consliuid as if the suhslancc of such clauses and prijvisions were <et fortli 
 tl.eiein with rtfeicrce lo the mailer to which the special Act lelales." 
 
 K. S. O.. ch. 170, sec. 5, same as Manitoba. 
 
 K. S. O., ch. 170, stc. 45. " I'nlos otheiwise proviiled, the fiillowiPi; 
 sections (45 to III> and suhsecticn 4 of sec. 41 shall aj)ply to every railway 
 sul jicl to ihe lcnislali\e authoiity ol the l.e^islatuic c.f this Province, made 
 or to he made in this Piovince." K. S. Is'. S., ch. 53, sec. 4 (part second,'. 
 
 R. S, N. S., th. 53, Kc. 3, spme as s«c. 5 (3;, Iiom. .\ct, excepting (i) 
 " Sections forminj; part i>l of this chajiter." 
 
 9 
 Act 
 
 See under --ec . 3 
 
 lall he a public 
 ny of its ]Movisions 
 
 t 
 
 ^ 
 
 1 
 
Dominion and I'rovinuai. Raiiww Ai vs. 
 
 IX 
 
 (>t Ifin any special Act it is provitlcd tliat any provisions ofany As lo oxcop 
 cencral Railway Act in force at the time of tlic passini- of tlio ',''""' """ '" 
 
 " I o foiCC. 
 
 special Act ts excepted from incorporation llierewitli, or if the 
 application ofany such provision is extended, limited or quali- 
 fied, the corresponding provision of this Act shall be excepted, 
 extended, limited or ([ualified in like manner. 
 
 SECTIONS WHICH MAY 1!K MADE Ari'MCAllIE lO ANY RAILWAY 
 WITHIN THE LEGISLATIVE AUTHORITY OK PARLIAMENT. 
 
 7, Any company within the legislative authority of the Parlia How certain 
 ment of Canada, to which the jjrovisions of sections tliirty-t^vojl^" |",^'„,^,j,. 
 to eighty-nine both inclusive of this Act are not, or are not clear npplicaljle to 
 iy and without question, applicable, may apply lo the ^'f-'vcrnor ^^'^^PjV.'j'eA 
 in Council for an order to make tlie same with or without excep- i.i tli.m. 
 tions or qualifications applicable to sucli company ; and the 
 Ciovernor in Council, upon proof that notice of such application 
 has been inserted for four weeks in the Canai/a Gazcltc, may 
 order and declare that the provisions of sections tiiirty-two to 
 eighty-nine both inclusive of this Act, with such exceptions and 
 qualifications as to the Governor in Council appear just, sha'l 
 thereafter apply to such company and its railway ; and such 
 order shall be published in the ( 'aiiaihx Gazette, and a copy tiu'rc< f 
 laid before Parliament within fouitecn days after the next meet- 
 ing thereof. 
 
 THF. RAILWAY COMMiril.K. 
 
 •S. The Railway Committee of the Privy Council shall consist Constitution 
 
 of the^Minister of Railwavs and Canals, who sliall be chairman on<.iil«ay 
 
 thereof; of the Mniister ot Justice, and of two or more of the 
 
 other hienibers of ihi; Queen's Privy Council for Canada, to l)e 
 
 from time to time appointed by the Governor in Council, three 
 
 of whom shall form a quorum ; and such committee shall have 
 
 the powers and perform the duties assigned lo it by this Act. 
 
 U. S. (J., Alt. 5182. •■' 'I'lio l.iculen.'intGovfiiior may, from time to time, 
 ai)point sucli nien)lK;is of tile Executive C<miicil. to the luiniber of four at 
 least, AS lie maysee lit, to coiistlii'te the Railway Cumnultee of the Kxecutive 
 Council, and such committee shall have the powers and iierfoim the duties 
 assigneti to it by tills section."' 
 
 R.S. M.,ch. 130, fcc.3<i. "The Railway Commiltee shall consist of the 
 Railway Commissioner, the Mini>ter of I'ublie Works, and such other memher 
 of the Kxecutive Council as may from time lo lime be appointed by the Lieu- 
 tenant-Governor in Council, and two of such Committee shall constitute a 
 (juoium.'' (See also 'I'lie Railway (-oiiimissioner's Act, R. S, M.,ch. 131.) 
 
 A 
 
 AM 
 
 L 
 
 hi, 
 
'i * 
 
 ■ .,S! 
 
 ,p. 
 
 } .1 
 
 1;:: 
 
 ! 
 
 Hi'iictaiv, 
 
 I'owcis. 
 
 Kate i'( sjiccd 
 ill cities, iti;. 
 
 Steam uliis- 
 tie. 
 
 Safely of cnv 
 ployxs, etc. 
 
 I'enaltics. 
 
 Otiiei- liability 
 not aflocted. 
 
 What niatlcis 
 Railway 
 Committee 
 may hear and 
 determine. 
 Kiglit of w.Ty. 
 
 Chan^'c of 
 line. 
 
 lirancli lines. 
 
 X 'I'liK. Raii.wav Law uk Canad.a. 
 
 II. 'I'lie deputy of tlic Minister of Railways and Canals, or 
 some oilier (it person a])pointed by the Committee, sliall be .scc- 
 letary of llie Committee. 
 
 K. S. (J., Alt. 5183. •''Ihe Kaihvay Committee shall appoint one of its 
 ;nembers to be chairman, and the Assi«tant Commissioner of i'ul>lic Works, 
 or some other fit persoti api>ointed by the Committee, shall be the secretary 
 of liie Committee." 
 
 10. The Railway Comtiiitlee may : — 
 
 (<?) Regulate and limit the rate of speed at which railway 
 trains and locomotives may be run in any city, town or village, 
 or in any class of cities, towns or villages described in any regu- 
 lation, limiting, if the said Railway Committee thinks fit, the 
 rate of sjieed witliin certain described portions of any city, town 
 or village, and allowing another rate of speed in other portions 
 thereof, — which rate of speed shall not in any case exceed six 
 miles an hour, unless the Hack is luopeily fenced; 
 
 (/') Make regulations with respect to the use of the steam 
 whistle within any city, town or village, or any portion thereof; 
 / {(•) //\ anunJciiby 57-58, Vic.c/i. 53; Make regiilatimis with 
 respect to the method of passing from one car to another, cither 
 inside or overhead, and for the safety of railway emiiloyees while 
 passing from one car to another, and for the coupling of cars; 
 and siielter of motormen and other employees operating electric 
 and other railway cars, 
 
 (//) Tmi)Ose penalties, not exceeding twenty dollars for each 
 offence, on every person who offends against any regulation 
 made under this section. — wiiich penalties shall be recoverable 
 upon summary conviction ; 
 
 2. The imi)osition of any such penalties shall not lessen or 
 affect any other liability which any person may have incurred. 
 
 11, J he Railway Committee shall have power to enquire into, 
 hear and determine any application, comi)laint or disjiule res- 
 pecting : — 
 
 ((i) Any rigiit of way over or through lands owned or occupied 
 by any company ; 
 
 {b) Changes it; location for lessening a curve, reducing a gra- 
 dient, or benefiting the railway, or for other purposes of public 
 advantage ; 
 
 {c) The construction of branch lines exceeding one-quarter of 
 a mile in length, but not exceeding six miles ; 
 
Dominion and Pkovinhai. R.mi.way Acts. 
 
 XI 
 
 (/) The crossing of llic tracks uf one company by Uk- tracks Crov.in« 
 ofanotlier company ; 
 
 (.) The alignment, arrangement, disposition or location of |;°;^,f ""' "^ 
 
 tracks ; • ,t r b 
 
 (/) The use l.y one company of the tracks, stations or station Us.of.vack.. 
 
 grounds of another company ; 
 
 ° ...... Works in 
 
 (?) The construction of works in navigal)le w.Ueis, ^^^^^^^ 
 
 (//) The construction of railways upon, along and across high- llit;l.wa),. 
 
 "('/) Tiie proportion in wluch ihe cost of fencing the approaches C..>i nf fen- 
 to crossings on railways constructed or under <:onstructi..n on - 
 the nineteenth of April, one thousand eight hundred and eighiy- 
 four, shall be borne by the company and ihe municipality or i^er- 
 son interested ; 
 
 ( /) The compensation to be made to any person or company ^j-'l--,, 
 in respect of anv \.-ork or measure directed to be made or taken, „^,,^,,,.,,_ 
 or the cost thereof, or the proportion of such cost, to be borne by 
 any person or company ; 
 
 {/:) Tolls and rates for the transportation of passengers and Tolls. 
 
 freight ; 
 
 (/) The adjustment of such lolls and rales between com- Acl.j.is'^.ent 
 
 panics ; 
 
 (///) Running powers or haulage ; 
 
 («) Traliic arrangements ; 
 
 (,>) Transhipment or interchange of freight ;. 
 
 (/) Unjust preferences, discrimination or extortion ; 
 
 (,/) Any highway or street, diich or seuer, water, gas or other Stress sew 
 pipes or mains over or through lands owned or occupied by the • 
 company ; or — 
 
 (r) Any matter, act or thing, which by this or the special Act General mai- 
 ls sanctioned, required to be done, or prohibited. 
 
 V^. The Railway Committee or the Minister may appoint or [iepon may^^^ 
 direct any person to make an enquiry and report upon any ap-,^^ ^^^^^,^ 
 plication, complaint or dispute pending before such committee, 
 or any matter or thing connected therewith or incident thereto. 
 
 Uunnii":-; 
 
 powers. 
 
 Traffic. 
 
 Triinsliip- 
 
 ment. 
 
 Preferences. 
 
 \ 
 
XII 
 
 Tin; Railway I, aw ok Canada. 
 
 * n 
 
 Inspect ii)n. 
 Witnc-sfs. 
 
 Hooks, i)a|)crs 
 etc 
 
 I'owers as to |;|. Ilic Kailway roiiimiitcc, tl)C Minister, iiispcctiniJt cimi' 
 acLiIlnii'oi" i><-'<-'r, cominissipiier for cnt)iiiry into any accidciil or casualty, or 
 casually. pcrsftii appointed to make any emiuiry or report, may — 
 ••"tiy. (,/) I'jiter into and inspect any place or building being tlie 
 
 properly or under the control of any company, tlic entry or in- 
 s])ection of which appears to it or him retpiisite ; 
 
 (d) Inspect any works, engines, cars, carriages or property of 
 the comi)any ; 
 
 (r) Require the attendance of all such persons as it or he 
 thinks fit to call before it or him, and examine, and reipiire 
 answers or returns to such enquiries as it or he thinks tit to make ; 
 
 ()/) Retjuire the production of all books, papers, plans, speci- 
 fications, drawings and documents relating to the matter before 
 it or him ; 
 Oatlis. ((') Administer oaths, aftlrmations or declarations. 
 
 Iv.. S. O., cli. 170, sec. 51. "Tin: L.ieiitciinnt GDVcimir in Council may ap- 
 point ami aiillioiize any projitr person or persons, not excceiling three in mini- 
 tier, whose duty it shall he from time to time to inspect all railways con- 
 structeii or in course of construction, and every person so authori/.cil may, at 
 all leasonahle limes, upcn producing,' his authoiity it" re'iuired, enter upon and 
 examine the railway and the stations, fences or (.;ates, road crossin^;s, cattle 
 guards, works and buildint;'^, and the engines, cars and carriages hclonL;ing 
 tiiereto." 
 
 N. H., 1891, ch. iS, sec. 38, same as Ontario. 
 
 ^ K. S. (J., Art. 5192. •' Any engineer appointed as aforesaid to iu'^pect any 
 railway or works may, at all reasona'de times, upon produeing his authority, 
 if re(iuired, enter upon and examine the said railway and tiie stations, fences 
 or gates, ro.ad crossnigs, cattle guards, woiks and liuiMings, and the engines, 
 cars and carriages belonging tiiereto." 
 
 Drains, water !•!• Whenever, after ilue notice of application lluMcfor, tiie 
 and other Railway Committee decides that it is necessary in the interest 
 of any municipality, that means of drainage should be provided, 
 or lines of water pipes or other pipes should be laid, or streets 
 made through, along, across or under any works or lands cf the 
 company, it may, after hearing the parties, direct how and on 
 what terms such drainage may be effected, or water pipes or other 
 i;ipcs laid or streets made ; and thereupon siicii municipality 
 may construct the works necessary to carry out sucli direction, 
 but only under tlie supervision of sucii official as the Railway 
 Committee appoints, — or at its option the Comi)any may con- 
 struct sticii Works muler the like supervision ; and tiie cost of 
 
 )i.pes on pro- 
 perty I I' com 
 pany . 
 
 \ 
 
 I 
 
I)l).MINION AMI I'KOVINriAI. KxH.WAV ACTS. 
 
 XIII 
 
 ■I 
 
 conslrucliiig such works, the cost of supervision, ;ind llic con l'A|icii-f, \>y 
 
 .• 1 ■ . C.I I II I ■ I I I ' ■ wluini li'iiiic. 
 
 tnnicd inaiiUcnaiicc of llic same sliall l)c paid liy sui Ii nninici 
 
 jiality, unless iIk- Railway Comniitlec diri'»:t llial tlic company 
 
 bear some proportion thereof, — in whicii case llie company shall 
 
 l)L'ar su(.:h proportion as tlie Railway Committee decides. 
 
 15, 'I'he Railway Committee, ihe Minister and every such Conipillii'K 
 cuKinecr, commissioner or person, shall have the same power to""*-'"'""^'^',,"'^ 
 enforce the attendance of witnesses, and to compel them to t;ivc 
 evidence and produce the books. ])apers or thin^^s which they 
 are nipiired to produce, as is vei-ted in any ccnirt in civil cases. 
 
 tH, Every jerson summoned to uttend before the Railway I'.-iyineni nf 
 Commiitee, or the Minister, or before any such engineer, com- ^'""^^'**'^'" 
 missioner. or person, shall receive the same fees and allowances 
 for so doing as if summoned toaltend before a court of civil jur- 
 isdiction in the Province in which he is recpiired to api)ear. 
 
 "'it. Any decision or order made by the Railway Commiitee Dyeisiim mny 
 under this Act may be made an order of the J''.xchcquer Court of l« inadeonler 
 Canada, or of any superior court of any Province of Canada, 
 and shall be enforced in like manner as any rule or order of such 
 court, 
 
 IH, The Railway Committee may review and rescind, or vary^^.^"^^^ "'^ ''*" 
 any decision or order i)reviously made by il. 
 
 19. The Railway Committee may, if it thinks fit, at the in- Case may Ik: 
 
 stalcil for 
 opinion. 
 
 stance of any parly lo the proceedings before it, and upon such 
 security being given as it directs, stale a case in writing for the 
 ojiinion of llie Supreme Court of Canada upon any (pieslion 
 which in the oi)inion of the Committee is a question of law. 
 
 HO, The Sui)remc Court of Canada shall hear and determine Opinion to lie 
 
 1 I' • 1 
 
 the question or (jueslions of law arising thereon, and remit the ^ '^'■'"^' • 
 matter to the Railway Commiitee. with the opinion of the court 
 thereon. 
 
 til. Subject to the jjrovisions of section eighteen, every deci- Decision fmal. 
 sion and order of the Railway Committee shall be final : Pro- 
 vided always, that either party may petition the Governor in 
 Council, and the Governor in Council may, in his discretion, res- Appeal to 
 cind, change or vary such order as he deems just and Proper, ^-.^'j^j^^""' '" 
 
 M 
 
T?r 
 
 xfv 
 
 'I'liE RAl^\^•A^ Lah- oi Canada. 
 
 
 I 
 
 Ccsls. 
 
 Cnlaiii ilncii- 
 
 llUlllh to 1)1- 
 
 cvi(kiiti'. 
 
 rioiinilgalion 
 of order of 
 conimiitee. 
 
 Ami of iiiiiiis' 
 tor or in>pccl- 
 inj; ciit;incor. 
 
 riiblicaiion 
 by tlie ci>m- 
 pany. 
 
 *ri*i. 'I lie costs ot';inil iii'-idcntal to .iny proceeding l)tforelhe 
 Railway ('omniitlcc shall lie in the disc retion of the Comiuittee. 
 
 !iJJ, I'-vcry docuinciu iniiiioiting lo he signed by the chair- 
 man and secretary of tic Railway Conimiitee, or by lither of 
 them, or by the Minister, shall be received in evidtiice wiihoul 
 ]iroof of any such signatiiie, and until the contrary is pioved 
 shall be deimed to have been so signed and to have been duly 
 executed or issi:ed by such coiVimittcc or by the Minister, as the 
 case may be. 
 
 li'l, Kveiy decision ai d order of tlie Railway Committee 
 shall be considt red as made kncjwn to the comjiany by a notice 
 iheieof (signed by the chairman and the secretary of the com- 
 mittee, or by either of tiiem),'(i) and delivered to the ])resident, 
 vice-president, managing director, secretary or superintendent 
 of the company, or at the oft'ice of the company (and v.very or- 
 der of the Minister or of the inspecting engineer shall be deem- 
 ed lo be made known to the company by a notice thereof, signed 
 res] ectively by the Minister or ihe engineer, and delivered as 
 above mentioned). (2) 
 
 In. S. O., cl). 170, MC. 7c — (2) ''AH ordcrv of llie (Cciiimi'-sioners) 
 ill) !-li;ill lif ctJiisit'ircd as n ndc Known to llic laiUmy company l)y a nniice 
 lliertof Hj^nid liy liini, aid dclivind to ll.c |usidtnt, vice jucsident, 
 n aii.Tfjiny-dinctir, MXitlary or iii] irintondtnt of the company (/'j." 
 
 N. H.. iSqi.cIi. iS, >fc. 57. S.nnie as ( inUnio, cxcep'tin^,' d') " Ctiicf 
 Con niiji-iniur of rublic ^^"olks,■' (/') " or at tlic i iTice of tlic Company." 
 
 R. S. Q., Alt. 52c!i. Same as Uomiiiion, excepting (I) '' signed by the 
 chairn an and counteisigr.td liy the secretary of the Conimittee.'' Alsooniit- 
 ling ll:e vdid " Minii-ter " 1 efore inspecting engineer in the latter ]iart, 
 
 K. 8. N. S.. ch. 5;, nc. 53, same as l)oniinion, excepting O) " signed by 
 tlie C( n'mis-sioncr of I'ublic \\ oiks. ' And nil);tituiing " (Governor in Coun- 
 cil " for '• Kail\vi>y Committee '', also omitting " Minister.'' 
 
 *,i!i, I'veiy company shall, as soon as possible after the re- 
 ceipt of any order or notice of the (Railway Committee or the 
 Minister or the inspecting engineer), (i) give cognizance thereof 
 to each of its officers and servants (by delivering a copy to him, 
 or by posting uj) a cojiy thereof in some place where his woik or 
 his duties, or seme of them, are to be performed). (2) 
 
 R. S. 0., ch. 170, sec. 59.— (1) " Ccmmissioncr of Tiiblic Works," (2) 
 " in one or nioie of the ways mentioned in section 89 of this Act." Sec. fg 
 reads as follows : " 'I he notice of Ihe liy-law or of any order or notice of the 
 ConiniisMor.er of Tublic Woiks may I'e proved by proving the deliveiy of a 
 
 M 
 
 ' 
 
 h t 
 
 it' < 
 
Dominion and I'r.ivini iai. Railway Acts. 
 
 xv 
 
 he 
 
 ir- 
 of 
 ut 
 
 y 
 
 lopy tlipri'of to tlie olTiciT, sf rva ' or iHTsum, or that lie v'njneil a Copy, or 
 that a copy tlifrvof w.\s posloil in »■ rue pl.ite wIiltc his wmk or his chilicf, nr 
 ^ottic of llicm, WLMc to \>e pci formed "' 
 
 N. H., i8i_)i, til. i8, ^ic .s'). Same as Ontario. Ktfcrrin^; to sec, 69 of tin- 
 Act. same as sic. 89 of ( liitri; 1 Act. 
 
 It. S, n., Art. 5200. S.i.Mc .IS Ontario. Kct'errinij to .\it. 5142 of the Act, 
 fame as sec. 89 of (Jnlaiio ,\ct, 
 
 INSI'K TIN.. I Nr.INtEKS, 
 
 *i<». I'Acry company, and the ofticcrs and ilirccior.s iliorcul, lnforii..it;i>n 
 
 shall afford to any inspecting engineer .siicli information (1) as'" !*<-' 'iHonI"! 
 
 .,.,., , , , , .... to insiicctin'; 
 
 IS wiinin ilieir knowledge and power in a,i matters imiiiiied iiitOt.„j^i,n.^,r. 
 
 by Iiim, and shall submit to siicii inspecting enginevr all jilaiis, 
 
 specilicalions, drawings and documents relating to th-i con true- 
 
 tion. (.^) repair or state of repair of the railway or any portion 
 
 thereof, (j) 
 
 U. S. (),. ell. 170, sec. 61 — 12) " Wlietlicr a luiiljje culvert or oilier pari.'' 
 K. S. ()., .\\t. S19J. Same ns Oiitaiiu. 
 
 N. |{., 189I, sec. 48. .Same as Untario, exceptint; ( i), '• nml full ancl iiuif 
 explanations."' (7,)" and rtconstriictinn." 
 
 K. S. X. S , cli. 53, sec. 43 (1). Sime as < )iitario, 
 
 'in. lOvery such inspecting engineer shall iiave the right, Kn;..;inccr to 
 
 while engaged in ihe business of such inspection, to travel with- !'*-' *-'""^'-'>''-''' 
 1 .- . ,• • ■ , ■. "y company, 
 
 out charge on any of the ordinary trains running on the railway, ct,.. 
 
 and to use the lelegraiih wires and machinery in the ottices of 
 
 or under the control of any sik h company, 
 
 K, S. O., ch. 170, sec. 62. '• The inspector shall have the liylit to Ufi: the 
 tclegra|)h wires anil machinery in the oli'ices of or under the control of such 
 railway company, for the purpose of coninuinicatiii(; with any of Ihe ntVicei- "f 
 the company, or transmitlint; any order of such inspictor relatiiif; to the rail- 
 way." 
 
 R. S. (^>., .Art 5193 (Z). Same a-- Dominion Act. 
 
 X. li., 1891, ch. 18, sec. 49. .Saniens (intario. 
 
 K. .'s. X. .S.,ch. 5,^, sec. 43 (2). Same as Dominion. 
 
 *iS. The operators or oliicers employed in the telegraiiii Telegi;: 
 
 offices of or under the control of the company shall, without ' 
 
 unnecessary delay, obey all orders of any such inspecting engi-, 
 
 neer for transmitting mess;iges; and every such operator or 
 
 otticer who neglects or refuses so to do shall, for every such 
 
 offence, be liable (on summary conviction) (i) to a penalty of 
 
 forty dollars. 
 
 R. S. O., ch. 170, fee. 63. Same as Dominion Act, excepting (i) oniiltiny; 
 "on summary conviction." 
 
 ipli 
 
 perators to 
 
 ilipy h 
 
 IS 
 
 li- I 
 
w 
 
 ,1 
 
 : !i 
 
 i 
 
 jJB. 
 
 I;i 
 
 !) 
 
 .«! 
 
 
 
 
 I'luof of his 
 
 autluuiiv. 
 
 I'ciially for 
 obslrucliiii; 
 inspecting vu 
 ''iiieci'. 
 
 Company to 
 luivi' corpo 
 vale po'.vei>. 
 
 J'liK Rmi.wav Law ok Caxaha. 
 
 k. S. (.1., An. 5193 (3). Siime;is Onl;iiio. 
 
 N. I!., 1S91, t li. IS, i^t'i' 50. S;\nie a-i (Jnuirio. 
 
 K. S. N. S., cl). S3, sec. 43 (3). ><anie as Ontario. 
 
 ISif). The production of instructions in writing, signed by the 
 cliairman of the Railway Comniittee and llic secretary thereof, or 
 l>y eitiier of tliem, orbyilie Minister, siiall be sufticient evidence 
 of the authority of such insjjccting engineer. 
 
 U. S. O., cli. 170, sec. 64. " Tlie ;iutIiority of such inspector shall be 
 siilVieiriitly uvi<lenceii hy a j'aper in writiiii; nominaliiii; him an iiisi>ector of 
 r.iilways, or of an v railway' in iiarticular, siL,'neil by the Commissioner of 
 I'ublie Works." 
 
 K. S. (J., All. 5103 f4). "The authority of any such insiiectint; cni;i- 
 neer sliali he sufficiently evidenceil by instructions (signed by the chairman 
 of the Railway Committee, and countersigned by the secretary thereof.") (rt) 
 
 N. 1)., 1.S91, ch. 18. Same as Ontario. 
 
 k, S. N. S. , ch. 53, sec. 43 (4). .Sanieas <Juebec,excepting (<?) " .Signed 
 I'y the Commissioner of Public Works."' 
 
 liO. Every person wlio willfully obstructs any inspecting 
 engineer in the execution of his duty is liable (on summary con- 
 viction) (i) to a penalty net exceeding forty dollars, (2) and 
 ill default of i)ayment thereof forthwith, or within such time as 
 tlic convicting justice or justices of the peace a])point, (3) to 
 imprisonment (with or without hard labor) (4) for any term 
 not exceeding three months. (5) 
 
 R. S. (J.. Art. 5215. — (I) "On conviction before a justice of ilie peace 
 huvini,' jurisdielion in the place where the offence has been committed," 
 ( j) '"for every such offence," (3) "the justice of the |ieace, or any 
 ( iher justice of the peace, havini; jurisdiction in the jdace wlieie th.e offender 
 H sides, ma) commit the offender," (4) omitting ''with or without iiard 
 l.il)or," (5) additional; " bui such commitment shall cease on payment of 
 ilie amount of the penalty; anil every such penalty shall be returned to the 
 next ensuing sessions of the )ieace in the usual manner.'' 
 
 INCORI'OR.ATION. 
 
 JJl. Every coniiKiny incorporated under a special Act shall 
 
 i e a body corporate, under the name declared in the special 
 
 Act, and shall be vested with all such powers, privileges and 
 
 immunities as are necessary to carry into effect the intention 
 
 and objects of this Act and of the special Act, and which are 
 
 incident to such corporation, or are expressed or included in 
 
 (" 2'//i' Interpretation .let"), (i) 
 
 R. S. 0., ch. 170, sec.S. 
 U. S. i)., Art. 5131— (U " Civil Code.'' 
 
 K. S. M., ch. 130, sec. 9 — (I) " Manitoba Interpretation Act." 
 R. S. N. 8., ch. 53, sec. 6. Same as Dominion, excepting "or are 
 exjiressed or included in ' the interpretation act" " omitted. 
 
 ii \ 
 
 
Dominion anu rKoviNciAi. Railway Acts. 
 
 XVII 
 
 OKI-ICES Ol' COMPANY. 
 
 li'4. The head office of ilie company shall be in ihc place office of thf 
 desif^natcd in the special Act ; but the board of directors may '^onip-''")'- 
 establish one or more oftices in other places in Canada or else- 
 wiiere. 
 
 Provisional 
 (lircctoib ami 
 tiit'ir powers. 
 
 Moneys de- 
 po'ite<l to l)e 
 willulrawn 
 for certain 
 jiurposes 
 only. 
 
 Allocation of 
 stock. 
 
 PROVISIONAJ, DIRF.croKS AND THEIR I'OWERS. 
 
 iMi. The persons mentioneil by name as such in the special 
 Act are hereby constituted i)rovisional directors of the com- 
 pany, and of such jjrovisional directors a majority shall 
 be a ([uorum, and the said provisional directors shall hold office 
 as such until the fust election of directors, and may fortlnvith 
 open stock, books and jirocure subscriptions of stock for the 
 undertaking, and receive ])ayments on account of stock sub- 
 scribed, and cause jilans and su"veys to be made, and deposit in 
 any chartered bank of Canada moneys received by them on 
 account of slock subs( ribed, — wiiich moneys shall not be with- 
 drawn, except for the jiurposes of the undertaking, or upon the 
 dissolution of the company for any cause whatsoever. 
 
 3'i. If more than the whole stock hrs been subscribed, the 
 provisional directors shall allocate and apportion the authorized 
 stock among the subscribers, as they deem most advantageous 
 and conducive to the furtherance of the undertaking. 
 
 CAPITAL, 
 
 J55. The capital stock of the company tin; amount of wiiich Cajiital stock 
 shall bo stated in the special Act, shall be « • '. 'od into shares of-"^"'' ^''^f^s. 
 one hundred dollars each ; and llie mone_, t;o laised shall be 
 applied, in the first place, to the payment of all fees, expenses 
 and disbursements for jjrocuring the passing of the special Act, ^ppjjcatjon 
 and for making the surveys, plans and estimates of the works thereof, 
 authorized by the special Act; and all the lemainder of such 
 money shall be applied to the making, equipping, completing 
 ; id maintaining cf the said railway and other purposes of the 
 undertaking. 
 
 36- So soon as twenty-five per cent, of the capital has been First meeting 
 subscribed, and ten per cent, of the amount subscribed has been ° ^""e""'"- 
 
 crs, 
 paid into some chartered bank in Canada, the provisional 
 
 It 
 
 •■ vl 
 
will 
 
 'i'liii Kau.wav Law of Canada. 
 
 
 increased. 
 
 directors sli, ill call a meetint; of tlu: sliarcholdcrs of the coin- 
 
 l)aiiy at the place where the head oflice is situate, at such time 
 Notice there- ^^ ^''^'X t'li'ik lircjper, — giving the notice prescribed hy section 
 of. forty-one of tiiis Act, — at wliich meeting //ir sharclioldcrs who 
 
 /uivc piiii/ at hast tc/i f^cr cent, on the amount of stock subscribed 
 Election of for by than shall, from the shareholders possessing the qualiti- 
 direciors. cations hereinafter mentioned, elect the inmiber of directors pre- 
 
 scri'ucd by the special Act. 
 
 K. S. Q., All 5134 (25;. " No owner or lioKlcr of shares in any iron or 
 wooden lailway Cdinjiaiiy, incorporated by Actoftlic l.epislaluio of this 
 Province, sliall, in any cai-c, \' tc, l>y reason tif any of his shares, unless he 
 lias paid upon tuch siiare an amount of at least ten percent.'' 
 
 How capital •^'< • ">^' f'rigiiiid capital stock of any company may (with 
 slock may l)e the approval of the Clovernor in Council) (i) be increased, 
 from lime to lime, to any amount, if such increase is sanclioned 
 by a vote, in jjcrson or by proxy, of the shareholders who hohl 
 at least two-tiiirds in amount of the subscribed stock of the 
 comjjany, al a meeting expressly called by the directors for that 
 purpose, by a notice in writing to each shareholder, delivered 
 to him personally, or properly directe-.i to iiim, and deposited in 
 ihc post office (2) at least twenty days previcnisly to such 
 meeting, stating the time, place and object of such meeting, 
 and tile amount of liie projjosed increase; and the pro- 
 ceedings of such meeting shall be entered in ihe minutes of 
 the proceedings of the company, and thereupon the capital stock 
 may (with such ap])roval) (3) be increased to the amount 
 sanctioned I)y such vote. (4) 
 
 R. S. O.. ch. 170, sec. 37 (6). — (1) Omitting ' with the approval of the 
 (lovernor in Council,'' (2) ''n-.-aiest to liis place of residence."' (3) Omitting 
 " with such approval." 
 
 R. S. Q., Art. 5132 (I9) '20). .Same as Dominion Act, excepting (I) 
 omitting "with the ajiproval of the (iovernor in Council," (3) omitting 
 " with such approval." 
 
 R. S. M., ch. 130, sec. 94. Same as Ontaiio. 
 
 N. !i., 1S9I, ch. 18, sec. 29 (6). Same as Ontario. 
 
 R. S. N. .S., ch. 53, sec. 7 (19). Same as Dominion, excepting (l) vS: (3) 
 omitted. (4) " Provided that no increase of the Capital Stock shall be 
 made without an act of the Legislature being first obtained therefoi"." 
 
 Entry on 
 minutes. 
 
 When and 
 how munici- 
 pal corpora- 
 tior»s may 
 take stock. 
 
 88. Municipal corporations in any Province in Canada duly 
 empowered so to do by the laws of the Province, and subject to 
 the limitations and restrictions in such laws prescribed, may sub- 
 scribe for any number of shares in the capital slock of the com- 
 
Dominion and Provinciai, Railwav Acts. 
 
 XIX 
 
 coin- 
 
 tiiiie 
 
 c'ctitjii 
 
 iialifi- 
 s i>ie- 
 
 iiDn or 
 if tills 
 Il-ss lie 
 
 poralions. 
 
 pany ; .ind the mayor, warden, reeve or otlier liead olVicer of any Represent- 
 
 such curporation holdin;' stock to llie amount of twenty iliousmd^^'^"."'^ *^°''' 
 
 dollars, or ujiwards, sliall l)e cx-officio one ol the directors of the 
 
 coniiiany, in addition to tlie number of director-i autliori/.ed liy 
 
 the >;)j(:ial Act (unless in sucli special Act provi.,irn is made for 
 
 the representation of such corporation on tiie board lliereof). (i) 
 
 K. S. <J., cli. 170, sec. .^9 (I). Municipal corporations in Ihii Province 
 may suUscritx; for any niiniltcr of sliarcs in the ca|>ilal stock of, or lend to or 
 guarnntce tlie jiavnuMit of any sum of money borrowed by tlie company from 
 any cxiporatioii or person, or endorse or yuaranlce the payment of any deben- 
 ture t'l I'C issued by the company for the money by them borrowed, and may 
 asses-; and levy from time to time upon the whole ratable property of the 
 municijiality a sufficient sum for them to discharge the debt or enijayement so 
 contracted, and for the like purpose may is-'ie detxMitures jiayable at such 
 times an 1 for such sums resjiectively, not less than $20, and bearing or not 
 bcarinj^ interest, as such municipal corporation thinks meet. 
 
 Sec. 2. Any such del)entiire issueil, endorsed or (;uaranteL'd shall l)e 
 valid and lindi.iji iijion tiie munici])al corporation, if signed or endorsed, and 
 countersigned l)y the officer cu' jierson, and in such manner and '"■•ni as dir- 
 ected by any by daw of the corporation, and the seal of the corporation thereto 
 sliall not be necessaiy, nor the observance of any other form with regard to 
 the debentures than as directed in the by law. 
 
 Stc. 3. No municii)al torporatlon shall subsciibe for stock or incur any 
 debt or liability under this Act or the special Act, unless and until a bydaw 
 to that effect has been duly made, and adopted, witii the consent first had of 
 a majority of the qualified ekctors of the niunici[)ality, to be ascertained in 
 the manner provided by I he AIiiiii:i{<al Act, after public advertisement 
 thereof containing a co]>y of such ])roposed by-law, inserted at least four times 
 in each rewspapcr jirinted within the limits of the municipality ; or if none l)e 
 printed llierein, then in some one or more newspapers printed in the nearest 
 city or town thereto, and circulated therein, and also put up in at least four of 
 the most public places ineach nui--icipality. ii'i' iitso cap. 1S4, s. 634. R. 
 S. O. 
 
 .Sec. 4. The mayor, warden or reeve, or other chief officer of a municipal 
 corporation subsciibing for and holding stock in the company to the amount 
 of $20,000, or upwaids, shall I le r.v c///- /i) one of the directors of the company, 
 in addition to the ininiber of directors authorized by the special Act, and 
 shall have the same rights, powers and duties as any of the directors of the 
 company. See also cap. 184, s. 635. R. .S. O. 
 
 .Sec. 5. No such mayor, warden, iee>e or other chief officer or other per- 
 son representing any niuniciiiality (i) having or t:d<ing slock in any railway 
 comjany shall, directly or indirectly, vote on the election or appointment of 
 the )irivate directors of any lailw.ay company (incor)iorated jirevious to or 
 during the .Session held in the si,\teenih year of Her M.ije ty's reign, unless 
 the special^Act of incorporation of such com|iany expressly provides therefor). 
 (2) 
 
 R. S. Q., Art. 5138(2), same as Dominion Act, excepting (i) omitting 
 *' unless in such special Act provision is m.-ide for the re|>resentation of such 
 corporation on the board thereof; " and the following .additional : " When, 
 in a parish comprising a parish municipality and a village municipality, the 
 council of both municipalities shall have agreed as to the subscription of 
 shares to a railway company, which entitles lo a representation on the board 
 
ill 
 
 XX 
 
 The Railway Law or Canada. 
 
 i 
 
 ! . I 
 
 li ■{ 
 
 li ■ ! 
 
 if 
 
 ; 
 
 H 
 
 ai 
 
 '"« ';■ 
 
 of direction of such coiniiaiiy,llie mayor of cncli sucli two municipalities shall, 
 alternately, l)c a director e.x-c/Jicio, in such company, each for <jne year, com- 
 menciiiy and chan^iinj on the (iist of January of each year, and to be coni- 
 nienced by the mayor of the paiish municipality; provided that the amount 
 of stock or shares thus owned by each of ilie two municipalities be at least 
 ten thousand didlars." 
 
 Sec. 3. " Any such directors shall have the same lifilits as directors of 
 municipalities which have subscribed for twenty thousand (lollarj of shares." 
 
 R. S. (J., All. 5134 (23), same as K. S. O., ch. 170, sec. y) (5), excei'tinjj 
 (I) additional •• or cor|ioration of any town," and omittint; (2). 
 
 K. .S. N. S., ch. 53, sec. 23 (2). Same as dominion, excejitini,' (I) " ISul 
 in case any such Municipal Corporation shall appoint some person specially 
 '.o the oflice (jf iJiiector in the Conijiany, such |>erson so specially appomtid 
 shall act as Uinctor of the Compiny ex-o(licio instead of the mayor, reeve or 
 warden, as in thi-- section jirovided " 
 
 raid up slock 3J), 'I'lie directors of the company clecled I)y llic sliarehoklers 
 may be is.sued 1^^ j^j.^]^ ^i^^j j^g^ j^j. p.,jj iip >;t,j(-i^ siiares in tile conipany, 
 in certain •' . \ ji 
 
 cases. wlietlicr stil)scrii)ed lor or not, and nviy allot and handover such 
 
 Steele in |iaynieni tor ri},'lu ot" way, plant, rolling slock or mater- 
 ials of any kind, and also fir liie services of contractors and en- 
 gineers; and such issue and allotment of slock shall be biiuling 
 on the company, and such slock siuill not be assessable for call>. 
 X. U., i8yi, ch. iS, sec. 29 C8). 
 
 .MIKIIXGS OK SllAKIHol,|)KI>S. 
 
 Annual meet- 40. A general meeting of llie sliareholders for the ekclion of 
 i"gs. ditcctors and for the transaction of other business connected 
 
 with or incident to the imdertaking, to be called "the annual 
 meeting," shall l)e held annually on the day mentioned in the 
 Special meet- special .\ct ; and other general meetings, to be called " special 
 *"8S' meetings," may be called at any time by the directors, or by 
 
 shareholders representing at least one-fourth in value of the sub- 
 scribed stock, if the directors, having l)een rerpiesled by such 
 sliarehoklers to convene sucii spi;'cial meeiing for twenty-one 
 days thereafter fail to call such nieeling ; 
 
 Where to be 2. All general meetings, whether annual or special, shall be 
 1>«^<^' held at the head oftice of the company. 
 
 R. .S.O., ch. 170, sec. 32. "The shareholders may assemble tojjetlier at 
 general mectinf;s, for])urpo>es connected with or belonging to the undeitak- 
 ing, and at any annual general ineeting, and may elect directors in the man- 
 ner provided tiy (sec. 34). (l) 
 
 R. .S. Q., Art. 5133. Same as Ontaiio, fee. 32, excepting (i) "the fol- 
 lowing article " (5134). 
 
Dominion and Provincial Railway Acts. 
 
 XXI 
 
 :s.s!ki11, 
 r, com- 
 )e com. 
 amount 
 at least 
 
 Also " after lliiily days following the f^enoial annual nieetinu of ihc share- 
 holilcrs for the eieclion of directors of tlie different companies, which is held 
 on the (lay fixed by the charter of each company, it shall be the duty of the 
 board of directors and of the secretary to call a ijeneral meeting of the share- 
 holders, whenever required to do so, by a re(|uisition in writing signed by one 
 or more shareholders, holding at least one-half of the subscribed capital slock 
 of the company, for the transaction of such business as may beset forth in the 
 said requisition, which business shall be mentioned in the notice calling the 
 meeting." 
 
 K.S.M., ch. 130, sec. 50. Same as Ontario, sec. 32, excepting (I) "this 
 Act." 
 
 N. IJ., 1891. ci). iS, sec. 24. .Same as Ontario, sec. 32, excepting (I) 
 '•sec. 26." 
 
 k. S. N. .S,, ch. 53, sec. 18. .Same .as Ontario. 
 
 41. .At least four weeks' public iicjlice of any meeting shall Notice of 
 be i;ivcnbv advcrlisenieiil |)iil)!isiied in the Caiuu/a ^/(?3f//t', and'"^*''''ss- 
 in at least one newsj.aper i)iil)lislied in the place where the head 
 oftice is situate, — in wiiicli notice shall be specified the i)iace 
 and the day and the hour of meeting ; all such notices sliall be 
 published weekly, and a copy of such Gazette containing such Evidence, 
 notice shall, on production thereof, be evidence of the sufficiency 
 of such notice. 
 
 K. S. O., ch. 170, ^cc. 33. " The method of calling general meetings, and 
 the lime and |ilace of the first meeting of shareholders for the appointment of 
 directors, shall he detei mined and settled in the special Act." 
 
 K.S.M., ch. 130, sec. 51. Same as Ontario. 
 
 N. 15., i.S9i,ch. 18, sec. 25, Same as Ontario. 
 
 R.S.Q., Art 5134(5). Same as Ontario, and additional "nevertheless, 
 if the number of sliareholders do not exceed fifty, and if they all reside in the 
 Uominion, such meetings, besides in the manner ])rescril)e(l by the charter, 
 may be convened by a registered letter, jiostage paid, and dejxisited in the 
 post office at least fifteen days before that o( the meeting." 
 
 " All notices of meetings ofthe company shall be published weekly in the 
 Quebec Official Ua/.ette. which -hall be conclusive evidence ofthe suliiciency 
 of such notice." 
 
 K. S. N. S , ch. 53, sec. 20 (2). Same as (^)uebec, latter jiart. 
 
 4*4. Any btisiness connected will) or incident to tlie under. What busi- 
 taking may be transacted at an annual meeting, excepting such""^ ^^^"^^ * 
 business as by this Act or the special Act is required to be 
 transacted at a special meeting ; but no special ?iieeting shall 
 enter upon any business not set forth in the notice upon which it 
 is convened. 
 
 43. The number of votes to which each sliareholder shall be Votes on 
 entitled, on every occasion when the votes of the shareholders '^*^' 
 are to be given, shall be in the proportion of the number of 
 
 %i 
 
XXII 
 
 Tin: Railway Law ok Canada. 
 
 ii{ 
 
 Shareholders 
 may vote by 
 proxy. 
 
 Form of 
 proxy. 
 
 Votes" by 
 proxy valid. 
 
 Majority to 
 govern. 
 
 shares held by liini (and on whicli all calls duo have been 
 paid). (0 
 
 K..S,0., (-c'C. 34 (5). Same as Diiminion, excepting (i)'oniitlin^ "and 
 oil wliicli all calls due liave been paid, " and subslitutiny " unless otherwise 
 provided by the special Act.'' 
 
 K, S.(J., 5134 (6). Same as Ontario. 
 
 K. S. M., cli. 130, sec. 56. Same as Ontario, 
 
 N. 15., iSgijch. iS, stc. 26(5). Same s Dominion, excepting additional 
 '• unless provjiled by special Act." 
 
 K. S. N. S., cli. S3, sec, 19 (6). .Sani;.' as Ontario. 
 
 4'J:. Kvciy shnreliolder, whether resident in Canada (i) or, 
 elsewhere, may vote by i)roxy, if he sees fit, and if such pro.xy 
 produces from liis constituent an ainioinlment in writing, in 
 the words or to tlie effect following, tiiat is to say : — 
 
 1, of , one of tile siiarc- 
 
 holders (d" the do hereby appoint 
 
 of , to he my pro.xy, and in my absence, to vote or 
 
 give my assent to any business, matter or thing relating to the 
 undertaking of the said that is mentioned or pro- 
 
 posed at any meeting of the shareholders of the said company ; 
 (2) in such manner as he, the said thinks proper. In wit- 
 
 ness whereof, 1 have hereunto set my hand and seal, tiie 
 day of in the year 
 
 R. S. 0., ch. 170, sec. 34 (6).— (I) "this Trovince." 
 
 R. S. Q., Art. 5134 (7). — (I) "this Province, (2) "or any of iheni.' 
 
 R. S. M., cli. 130, sec. 57. Same as (juel)ec. 
 
 N. 15., i89i,cli. IS, sec. 26 (6).— (i) "this Province." 
 
 R. S. N. S., ch. 53, sec. 19 (7). .Same as Dominion. 
 
 4«5. The votes by ]jroxy shall be as valid as if the consti- 
 tuents had voted in person ; and eveiy matter or thing proposed 
 or considered at any (1) meeting of the shareholders shall be 
 determined by the majority of votes and proxies then present 
 and given ; and all decisions and acts of any such majority shall 
 bind the company and be deemed the decisions and acts of the 
 conii)any. 
 
 R. S.O., ch. 170, sec. 34 (7). (1) "public." 
 R. S. (j.,Art. 5134 (,S). Same as Ontario. 
 R. S. M., ch. 130, sec. 58. Same as Ontario. 
 N. 1!., 1891, ch. 18, sec. 26 (7). Same as Ontario. 
 R. S. N. S., ch. 53, fee. 19 (8). Same as Ontario. 
 
 
Dominion and Provincial Railway Alis. 
 
 will 
 
 c iKcn 
 
 Ik' "nnd 
 licrwjse 
 
 litional 
 
 ') or, 
 proxy 
 
 n,u, in 
 
 TRKSIUKNT AND DIRECTORS. 
 
 4(». A l)o;ircl ol" directors of the company to manage its affairs, liiection of 
 the luimbcr of wliom shall be stated in the special Act, and a''*'''"' "' '•' 
 majoiity of wliom shall form a qiionim, shall be chosen at the 
 annual meeting; and if such election is not held on the day ap- 
 pointed therefor, the directors ^.hall cause such election to le 
 held at a special nieeiiiig duly called for that purpose within as 
 short a delay as possible after the day so appointed. 
 
 R. S. O., ch. 170, soc. 34 d). "A UouA nfiliioctois of tlio uiiilcrtakin;^', 
 to niannije its alVairs (the niimlicr wlieicof slinll he st.nted in tlie special Act) 
 ('!) shall he chosen aiiiuialiy by a in:ijority (jf liic sJiaichoMcrs Vwiiiii; at siicii 
 ckclion at a j^iiieial iiifctiiii;, the time and place for uiiicii shall he a[i|i()iiucil 
 l)y the special Act ; and if the election is not held on the day so apnoinled, 
 the directors shall notify and cause the election to l)e held wiiliin (thiityilays 
 after the day) (/>) a])pointed. ' 
 
 R..S.M.,ch. ijo, sec.52. .Same as Ontario. 
 
 R. S. (J., Art. 5184 (I). Same as Ontario, exceptini,' (/>) siihstilute "as 
 short a delay as possible after the ilay so appointed." 
 
 N. I!., l8jl,ch. iS, sec. 26. Same as Ontario, exceptini; (</) substitute 
 "the number of whom --hall not exceed seven, as may he lixeil by by-law of 
 the company," also (/>) sub^titute " as soon as practicable after the day ap- 
 pointed." 
 
 R. S. X. S.jCh. 53, sec. I9 (I). Same as ()uehsc. 
 
 47- No person shall vote on such subsequent day cxcejJt Asto votes at 
 
 tiiose who would have been entitled to vote if the election had J""™ 
 
 meeting. 
 
 been held on the day when it should have been held. 
 
 R. S. O.. ch. 170, sec. ^4 (2). 
 
 R. S. y., Art.5i34(2). 
 
 R. S. M., ch. 130, sec. 53. 
 
 N. B., 1891, ch. 18, sec. 26 (2). 
 
 R. S. N. S., ch. S3, sec. 19 (2). 
 
 48. Vacancies in the board of directors shall be filled in the Vacincies, 
 manner prescribed by the by-laws. ^^'^ filled. 
 
 R. S.O., ch. 170, sec. 34 (3). 
 R.S. Q., Art. 5134 (3)- 
 R. S. M., ch. 130, sec. 54. 
 N. B.. iSgi.ch. 18, sec. 26 (3). 
 R. S. N. S., ch. S3, sec. 19 (3). 
 
 41). N'o [)erson shall be a director, unless he is a shareholder, Qualification 
 
 owning (twenty shares of) (i) stock absolutely in his own right of t^^ector. 
 
 (and has paid all calls due ther-ion), (2) and is qualified to vote 
 
 for directors at the election at which he is chosen, 
 
 R. S. O., ch. 170, sec. 34 (4)— (I) Omitted, (2) omitted. 
 R. S. Q., Art. 5134 (4). Same as Ontario. 
 
 t 
 > 
 
,!:«; 
 
 
 ' '.I 
 
 XXIV 
 
 Thk Raii.wav Law ok Canada. 
 
 K. S. M., cli. I Vi soc. 55. Same as Ontario. 
 
 N. 1!., iSyl, cli. iS, sec. 2b (4). Sanu- as Ontario. 
 
 U, S. N. S., cli. S3, s(.c. 19 (4). .Same as Ontario. 
 
 Term of office. 50. The directors appointed at the last election, or those ap- 
 pointed in their stead in case of vacancy, shall remain in office 
 until the next ensuing election of directors. 
 
 R. S. O., oh. 170, sec. 34 (8). " Tile directors first appointud, or those ap- 
 piiinted in tliiir stead, in case of vacancy, sliall remain in ofl'ice until the next 
 annual election of diieclors at llie lime ap])t)inted therefor, at which time an 
 annual [general mtetinj; of the shaieholdeis shall lie held, to choose directors 
 for the ensuing year, and j,'enefally to transact the business of the company." 
 
 R. S. (^)., Art. 5134 (9). Some as Dominion Act. 
 
 R. .S. M., eh. 130, sec. 59. .Same as Ontario, 
 
 N. 15., 1891, ch. iS, sec. 26(8). " The <lirectors lirst ajipointed, or tho.se 
 apjioinled in their stead, in case of vacancy, shall remain in office until the 
 next annual election of ilinctors." 
 
 R. S. N. S., th. 53, sec. 19 (9). 
 
 Vacancies by •*!. In case of the deatii, absence or resignation of any of the 
 
 death, etc., directors, olliers inav (unless otiierwise ])rescribed i)y the hy- 
 how filled. , X . s , . ' . , . , , , ■ • ,• 
 
 laws) (1) he appomtcd in their stead by the surviving directors ; 
 
 but if such appointment is iu)t made, such death, absence or 
 resignation shall not invalidate tlie acts of the remaining direc- 
 tors. 
 
 R. .S, O,, ch. 170, sec. 34 (9)— (1) Oiiiii;ed. 
 R. .S. () , Art. 5134 (10). Same as Ontario. 
 K. S. M., ch. 130, SL-c. 60. Same as Ontario. 
 N. I!., i89i,ch. iS, sec. 26 (9). .Same as Ontario. 
 R. S. N, .S., ch. 53, sec. 19 (10). Same as Ontario. 
 
 President. 
 
 Vice-presi- 
 dent. 
 
 i»*i. The directors shall, at their fust or at some other meet- 
 ing after the (election) (1) elect one of their number to be the 
 president of the comi)any, who shall always, when present, be 
 the chairman of and preside at all meetings of the directors, and 
 shall hold his office until he ceases to bo a director, or until an- 
 other president has been elected in his stead ; and they may, in 
 like manner, elect a vice-president, who shall act as chairman 
 in the absence of the president. 
 
 R.S.O., ch. 170, s<!C. 34 (10) — (I) Substitute " day appointed for the an- 
 nual general nieetinj,'." 
 
 R. S. Q., Art. 5134 (II). Same as Dominion Act. 
 R. .S. M.,ch. I \o, sec. 61. Same as Ontario. 
 N. r>., 1S91, ch. 18, sec. 26 (lo). Same as Ontario. 
 R. S. N. S., ch. 53, sec 19 (i!),as amended by 51 Vic, ch. 20. Same 
 as Dominion. 
 
 ■ ■! 
 
 I 
 
Dominion and Pkovincial Railway Acrs. 
 
 XXV 
 
 
 5:5 The directorB. at any mcoling at wl>ich not less than a - '-una. 
 quorum (.) are present, shall be competent to use and exerosc 
 all and any of the powers vested in tlie duertors. 
 
 R. S. O.. ch. .70, sec. 34 U.)-(.) AcUlilional " !■> be .tllcl l,y tho 
 special Act," 
 
 K. S. Q., Alt. 5134 (>2)- ^•'*'"« '^^ 0';'«f"': 
 
 R S M di. I ;o, sec. 62. Same as Ontario. 
 
 N.H., .89., ch .8, sec. 26(1.). -(.) '< which HUorun, .h.Ul cons.sl of. 
 niajoiiiy of the lioaril." 
 
 R. S. N. S.,ch. 53. ^'^^- '9 ('2)- 
 
 54. 'Phe act of a majority of a quorum of the direc:lors pres- A^;-;;;,;-- 
 CMU at"any meeting regularly held shall be deemed the act of t.te •,„,. 
 direcliirs. 
 
 R. S. 0.,ch. 170, sec. 34 (12). 
 K. S. M.,ch. 130, sec. 63. 
 K. S. Q., Art. 5'34 ('3)- ^ , ^ 
 N. H., iSgi.ch. 18, sec. 26 (12). 
 
 R. S.N. S.,ch. 53. >»-'C- 19 OS). ■ „ , r 
 
 55 No director shall have ntore than one vote except the Votes^o. .h- 
 clutirnian, who shall, incase of a division of equal numbers, have 
 the casting vote. 
 
 R S 0.,ch. 170, sec. 34 (13). 
 R.S. (?.,Art. 5134('4)• 
 R S. M., ch. 130, sec. 04. 
 \' 15., 1S91, ch. IS, sec. 26 (I3). 
 R S. N. S.,ch. 53, sec. 19 (14)- 
 
 5«. The directors shall be subject to the examination -d Uirecto....- 
 rontroloflhe shareholders at their annual meetings, and shal ,,,,, ,^,,., „„, 
 
 ubiectto all bylaws of the company, and to the orders and by-laws, 
 d r tiins from time to time made (or given) (t) at the annual 
 o ccial meetings ; but such orders and directions sha^ no be 
 contrary to any express directions or provisions ot this .\ct 01 ot 
 
 the special Act. 
 
 R. S.O..ch. I70,sec. 3;(M)-(n Omitted. 
 
 R S. Q., Art. 513^ ('5)- •■'»'"- ^'^ O.uai o. 
 
 R S M ch. i?o, sec. 63. Same as Outario 
 
 N \i , .8'). chf .8. sec. 26 (.4) Same as Outar.a. 
 
 R.'S N. S.;ch. 53.S2C.19 05)- Same a. Ontano. 
 
 fil No person who holds any olfice, place or employment in, Disability of 
 oAL is concerned or interested in any contn^ct tmder or -ith ^-s. co.. 
 the company, or is surety for any contractor, shall be capable of ^^„.^^,^^. 
 bein.' chosen a director, or of holding the office of director, nor 
 
 11 
 
 'U 
 
 
 1*1 
 
 1 
 
 ■ !., 
 
 1 
 
 : U 
 
.''! » 
 
 XXVI 
 
 'I'liK Raii.wan I,\w ok Canada. 
 
 1 1 
 
 
 sliall iiiiy person who is a director of iIr' company ciucr into, or 
 be dinctly or iiulire( lly, for his own u^e and l)cncfit. interested 
 in any contract \\:th the company, otiier than a coi, tract wliich 
 relates to ilic pnrcliaso of land necessary for the railwav, or he 
 or liecoine a iiariner of or surety for any lontractor wiih the com- 
 pany. 
 
 K. S. <).. ill. 1711. sec. ;,4 (15). Nil ;;ersuii lioliliMj; any 1 lliei', ijiaci- m 
 emi>loyiiu'ni in, oi- l)(.in(4 eoiHi.iiu(l nr iiUi.rL'>tt<l in niiy contiacls iiiu1<t or 
 with tlic conipany, shall i)L' capahlo of lieiiij; chosen ailirccioi, or of lioMiii}; 
 the olliif of (liriclor, nor siiall any inTson, lii'in;; a dirt'ctor of the conipany, 
 enter into or he direetly or imlirecily, for his own upe and 1 eiieht, interested 
 in any eoiitracl with the conijiany, not rel.iiinfj to the [uirchase of lam! neces- 
 sary for tlie railway, or he or h.coinc a i)nrlner of any conliaclor with the 
 coniiiany (and in tiie event of any such contract made since the ;,oili day of 
 June, 1S5S, or made after this Act takes elicit, by or on liehalf of any direc- 
 tor, an action shall lie in any Court of competent jurisdiction aj;ainst such 
 director, at the suit of any shareholiler of the company, for the benelit of the 
 funds thereof, for the whole amount of prolll accruni^' to such diiectoi from 
 the contiact so made or fullilled). (i) 
 
 R. S. ()., .Vrt. 5134 (16). Sam.as Ontario, txceptint^ latter pait (I) omit- 
 ted. 
 
 K. S. M., ch. I ',0, sec. hC), Same as Ontario, exceptiii}; in jdace of " 30th 
 day of June, 185S, or made after this Act takes clTcct,"' read '* 25th day of 
 May, 1S81." 
 
 Also after "Court " add " of common law.'' 
 
 N. 15., iScjt, ch. 18, sec. 26 (15). .Same as Ontario, excepting omistion of 
 " 30th day of June, 185S." 
 
 K. S. N. S., ch. 53, sec. 19 (16). Same as (Juehee. 
 
 By-laws to be US. Tiie directors shall make by-laws for the management 
 made. ^y^^ disposition of the stock, property, business and affairs of the 
 
 company, not inconsistent with tlie laws of (Canada), (i) and for 
 the iippointment of all officersi servants and artificers, and pre- 
 scribing their respective duties. 
 
 K. S. O., ch. 170, sec. 34 (17) — (I) " this Province." 
 
 R. S. Q., Art. 5134 (17)— (I) Read " law "' instead of" laws of Canada." 
 
 R. .S. M., ch. 130, sec. 67. Same as Ontario. 
 
 N. 15., 1891, ch. 18, sec 26(10). Same as Ontaiio. 
 
 R. S. N. S., ch. 53, sec. 19 (17)- Same as Quebec. 
 
 Appointment **'^- '"'^' d'''i-'':torH shall, from time to time, apjjoint such 
 of officers and officers as they deem recjiiisite, and shall take sufficient security, 
 c1ven"^v° "^ ^y °"'"' "' '"^'*^ (') '^onds (or by the guarantee of any society or 
 them. joint Stock company incorporated and empowered to grant guar- 
 
 antees, bonds, covenants or jiolicies for the integrity and faithful 
 accounting of jiersons ccctipying positions of tiust, or for other 
 like puri-cfes,as they dcemcxpedit. iit) (2) from the managers and 
 
 
 I t 
 
DOaiINIon ami Pkovimiai, Raii.wav Acts. 
 
 XXVII 
 
 or 
 Itcd 
 licli 
 
 lie 
 I'lii- 
 
 III 
 or 
 
 ofluxTs foi the lime hcinj;, foi iliu safe kcLpiiig ami accuunling 
 for l)y tliL-m rcspcc lively of iho moneys raised by virlue of tiiis 
 Act iiiid llie s|jei lal A( t, and for llie faitlifiil exec iilioii of lluir 
 duties, as ilic direeior^ ilunk jiroper. 
 
 R. S. O., cli. 170, sec. T,.\ (ij). — 0) All 1 " i>L'n.il, " d) ivplaco by •• i>r 
 otherwise." 
 
 K. S. Q., Art. 5134 (IS). — (2) iMplacc l)y '• or l>y th.- ;;ii.iraiili'0 uf tlio 
 Caiiad.i ( luaiaiilt'o ('oMip.niiy, >iv cif aiiy society incdiporaie.l tor iil<e inirposes 
 or otherwise, ns tiiey m.aydeciii ex|)eilicnt. " 
 
 I\. S. M., cli. 130, sec. C)8. S.\ine .h Ontaiii). 
 
 N. li., 1S91, cli. 18, sec. 26(17). Same as Ontario. 
 
 I\. .S. N. S., ch. ^3, sec. 19 (IS). Same as (^ccIhic. 
 
 IJO. In case of llie absence or illness of the presidcnl, ihe vice- When vice- 
 president shall have all the lighls and [jowers of ihe iiresident, and 'Ji^^i/a,., 
 may sign all notes, bills, debenliires and other instrununls, and 
 perform all acts which, by the regul.ilions and by-laws of the com- 
 pany, or by the (special Act) (i) are required to be signed, per- 
 formed and done by the president. 
 
 R. .S. ()., cli. 171), sec. 34 (18). — (i) •• .Vets iiicorporatiiitj the Oompaiiy.'' 
 
 R. S. (^)., An. 5134 (I'J). S.;me as Dominion .Act. 
 
 R. S. M,, ch. 130, sec. 69. Sanio as Ontario. 
 
 N. H., 1891, ch. 18, sec. 26 (18). Same as Ontnio. 
 
 R. S. N. S.,ch. S3, sec. 19 (19). Same as Ontario. 
 
 (il. ! he directors may at any meeting (of directors), (i) require Absence of 
 
 the secretary to enter such absence or illness among the 1 "■'^- {^^entereron 
 
 cecdings of such meeting ; and a certificate thereof, signed by the minutes, etc 
 
 secretary, shall be delivered to any [)erson (2) reiiuiring the same, 
 
 on payment to the treasurer of one dollar, and such certificate 
 
 shall be taken and considered as priina facie evidence of such 
 
 absence or illness, at and during the period in the said certificate 
 
 mentioned, in all proeeedings in courts of justice or otherwise, 
 
 R. S. O., ch. 170, sec. 34 (19).— (i)Omitte;l, (2) "or persons." 
 
 R. S. (,>., Art. 5134 (20).— (I) Omitf ' 
 
 r<. S. M., ch. 130, Sec. 70. Same as Ontario. 
 
 N. 15., 1S91, ch. 18, sec. 26 (19). Same as Ontario, 
 
 R. S. N. S., ch. 53, sec. 19 (20). Same as Ontario. 
 
 G'.i. I'he directors shall cause to be kept and, annually, on the Annual state- 
 thirtieth day of June, (i) to be made up .and balanced, a true, ""^"^ '° ^'^ 
 exact and particular account of the moneys collected and received 
 by the company or by the directors or (managers) (2) thereof, or 
 otherwise, for the use of the company, and of the charges and ex- 
 
 ( I 
 
 !!■'■ 
 
; II I 
 
 
 XXVIII 
 
 'I'liK Railway I, aw oi Canaha. 
 
 l)cnst'.s alleiKling llic creeling, making, siiijporling, ni.iintainiiig 
 
 and carrying on of tlic undcrlaking, and of all other receipts and 
 
 cxi)cndiUircs of llic company or the directors. 
 
 k. S. O., cli. 170, )*ec ^4 (jo).— (I) "Ducemhei." 
 
 K. S. (,>., All. 5l_H (21). Siimc ns Onl.irio. 
 
 K. S. M.,cli. i3o,si'c. 71. S.ime ns Oiit.irio, cxcoiiting (2)" mananciuent." 
 
 N. 11., 1891,1-11. iS, sc.26(2o;. S.Tinu .ns Oiiiario. 
 
 K. S. N. .S., cli. 53, sec. K) (21). Same iis Oiitarin, 
 
 CALLS. 
 
 Calls and 
 notice there 
 of. 
 
 i\tl. 'I'he directors may, from time to time, iiuike snth calls of 
 money npon the re.'-pective shareholders, in respect of the amount 
 of capital resjiectivelv subscribed or owing by them, as they deem 
 nect ssary ; and at least thirty days' notice shall be given of each 
 call,— and no call shall exceed the amount ])resrribtd in the spe- 
 cial .Act, or he made at a less interval than two months from the 
 previous call, — n(;r shall a greater amount be called in, in any 
 More than one one year, than the amount prescribed in the special Act (but 
 
 call by one nothing herein contained shall prevent the directors from inak- 
 resolutioii. ,, , , . .-.i , 1 1. • 1 1 
 
 iiig more than one call by one re.sohitioii ot the board : I rovided. 
 
 Proviso. 
 
 thai the intervals between such calls, the notices of each call, and 
 
 the other provisions of this Act and of the special .Act, in respect 
 
 of calls, are duly observed and given), (i) 
 
 k S. ()., ch. 170, sec. 35 (I).— (I) Oinilteil. 
 
 K. .S. Q. , Alt. 5135 (1). .Same as Ontario. 
 
 II. H. M., c!i. 130, sec. 72 Same as Ontario. 
 
 N. H., 1891, ch. iS, sec. 27. Same as Dominion Act. 
 
 K. S, N, S., cli. 53, sec. 2u(i). Same as Ontario. 
 
 Publication 04. All notices of calls upon the shareholders of the company 
 of notice of si,;iii ij^. published as provided by section forty-one of this Act, 
 and a copy of the Guzctte therein mentioned shall, on jModuction 
 thereof, be evidence of the sufficiency of such notice, 
 
 R. S. O., ch. 170, sec. 35 (2). " All notices of mveliii^'s or of calls upon 
 the shareholders of the company shall be iniblished weekly in the Ontario (</) 
 Gif.t'ttt', and the said Cazeth' shall, on pro<luction thereof, be conclusive 
 evidence of the sufficiency of such notices." 
 
 R. S. Q., Art. 5135 (2). Same as Ontario, excepting " meetings" omitted. 
 
 R. S. M., ch. 130, sec 102. " .Ml notices of meetings or of calls upon the 
 shareholders of the company .shall be jiublished in the Manitoba Gazette for at 
 least thirty days ; and the %mA Gazcttt shall, on production thereof, be con- 
 clusive evidence of the sufficiency of such notices." 
 
 N. 15., 1891, ch. 18, sec. 27 (2). Same as Ontario, excepting (</) " Royal 
 Gazette." 
 
 R. S. N. F.. rh. 53, sec. 20 (2;. Same as New Brunswick. 
 
DOMINIHN AN1> I'ROVIN'CIAI, KaII.WAY .\< r.«. 
 
 XXIX 
 
 Id 
 
 HR. Kvcry sliarelioldci sliall be liable to pay the ar.KJunl ol ilie I'aymcni of 
 rails so made in rcs|)t"Ct of Uic hharcs held by him, to ilie pei^ons '•'""*• 
 and at the limes and place:. I'lom linii; to time appdiiited by the 
 company or the directors. 
 
 K. S. ()., cli. 170, Kcc. 35 (3). 
 
 U. S. ()., Art. 5135 (.?). 
 
 K. S. M.,cli. 130, sec 73. 
 
 N. 1!., 1S91, ell, IS, see. 27 (]). 
 
 U. S. N. S.,cli. 53, sec. 2u(3). 
 
 (Hi. It', on or before the day appointed for payment of any call, Interest on 
 any shareholder does not jiay the amount of suih call, he shall "^'*-'''''"'-' •-"""*• 
 be liable to jiay interest for the same, at the (i) (rate of six per 
 centum per annum) (2) from the day appointetl for the payment 
 thereof to the lime of the actual payment. 
 
 K. S. O., ch. 17(1, sec. 35 (.>).—(!) •< l.e^jal," (2) < fur the ihiic lieirj;."' 
 K. S. ()., Art, 513s (4I. SaniL- as lloniiiiii'ii Acl, omit tin-; "i\t tliernio of 
 six per ciiitimi |'or aninini,'' 
 
 k. H, M,, ch. 1 30, sec. 74. .Same as Uiitaiio. 
 
 N. 1!., iSyi, ch. 18, sec 2J (4i, Same as Uominion .\ci. 
 
 K, .S, N. .^,, ch. 53, -tc. 20 (4). Same as Unmiiiiiin . 
 
 CJ1. It, at the time appointed Im- the iiaymenl ol any i all, any Recovery by 
 .shaiehoMer fails to pay the aiiKamt ol the call, he may be sued **""■ 
 for ihe same in any court (jf ( i) cuinpeteiU j irisdielion, and the 
 same shall be tecoverable, with l.iwful interest (2) from the day 
 on which ihe call became payable. 
 
 K. S. O., ch. 170, sec. ^s (5). 
 
 K. S,(,)., Alt. 5135(5). 
 
 K. S. M., ch. 130. sec. 75 —(II '• law or eiiuily havhi;;." 
 
 N. U., l8yl, ch. 18, sec. 27 (5). — (2) "at llie rate ofsi.x per cent."' 
 
 K. S. N. S.| cli. 53, sec. 20 (5). Same as l^omiiiioii. 
 
 08. In any action (or suit) ( i ) to lecover any money due upon What allega- 
 
 any call, it shall not be neiessary to set forth the special matter,''""^ <^"'y 
 , . , ,, , , . . , , , , 1 , , ■ , necessary m 
 
 but !l shall bj sutlicient to d.-clare that the defendant is the suits for 'calls. 
 
 holder of one share or more, staling the number of shares, and 
 
 is indebted in the sum of money to which the calls in arrear 
 
 amount, in respect of one call or more, upon one share or more, 
 
 stating the number and amount of each of such calls, whereby an 
 
 action has accrued to the company. (2; 
 
 U. S. O., ch. 170, sec. 35 (6).— (I) Omilteil, (2) acklitional "by virtue of 
 the special Act." 
 
 K. S. (.>., Art. 5135 (6). Same as Dominion Act,e.\ce|)ting (2) '' by virtue 
 of the chaiter." 
 
 R. S. M., ch. 130, sec. 76. Same as Quebec, 
 
 N. 15., 1891, ch. 18, sec. 27 (6). Same as Ontario. 
 
 R. S, N. S., ch. S3, sec. 20 (6), Same as Quebec. 
 
 >ii>iiniiiH.ii]|,ifa> \ 
 
 ■a 
 
XXX 
 
 IHk Railway Law ok Canada. 
 
 n 
 
 Ilia > 
 • '■>*' 
 
 I 4\ 
 
 
 
 
 Declaration 
 of iliviilmd. 
 
 Rale of 
 dividend. 
 
 Dividend not 
 to impair cap- 
 ital, etc. 
 
 But interest 
 may be paid 
 on certain 
 sums. 
 
 No interest 
 on share in 
 arrear. 
 
 DIVIDICNDS ANU interest. 
 
 <>t). Al il;c annual meeting of the sliareholdcrs of the com- 
 pany, a dividend niayl)e declaicd (jui of tin,' net profits of the 
 undertaking. 
 
 K. S. O., cli, 170, sec. 36 (I). "At the (general meetings (a) of the share- 
 holders of the uiideitaking, from time to time holden, a diviclend shall he made 
 out of tl.e clear pioiiis of ilie undertaking, unless such meetii'gs declare other- 
 \\i>-e." 
 
 k. S. Q., Art. 5136 (I). Same as Ontario, e.xcepting {a) " meetings " in 
 singular. 
 
 R. S. M.,cl . 130, sec. 84. .'^anie as Ontario. 
 
 N, H.,lSc)i,ch. 18, sec. 28 (I). Same as Ontario. 
 
 R. S. N. S., cli. 53, sec. 21 (1). Same as Ontario. 
 
 70. Such dividend shall he at and after tlie rate of so much 
 ))er bhare upon the several shares held by the shareiiolders in the 
 stock of tlie company, as such meeting tiiinks fit to appoint or 
 determine. 
 
 R. S. O., ch. 170, sec. 36 (2). 
 
 R. S. Q., Art. 5136(2). 
 
 R. S. M., ch. 130, sec. 85. 
 
 N. 15., i89i,cli. 18, sec. 28 (2). 
 
 R. S. N. S., ch. 53, sec. 21 (2). 
 
 i 11. No dividends sliall be declar..d whereby the capital of the 
 company is in any degree reduced or impaired, or be i)aid out 
 of such cajjital, nor shall any dividend be paid, in respect of any 
 sliare, after a day appointed for payment of any call for money 
 in resjrect thereof, until such call has been paid ; but the 
 directors may, in their discretion, until the railway is completed 
 and opened to the public, pay interest (at any rate ;iof exceed- 
 i//g six per centum per annum) (1) on all sums called up in 
 respect of the shares, from the respective days on which the 
 same have been paid ; and such interest shall accrue and be 
 paid at such times and places as the directors appoint for that 
 purpose, 
 
 R.S. O., ch. 170, sec. 36 (3) (4).— (1) " At any rate authorized by the laws 
 of Canada, but nut exceeding six per centum, per annum." 
 
 I'.S.Q., Art. 5136 (3) (4).-7-(i) " At any rate per annum."' 
 
 R. S. M.. ch. 130, sees. 86, 87. Same as Ontario, substituting '< eight per 
 centum" for " six per centum." 
 
 N. B., 1891, ch. iS, sec. 28 (3) (4). Same as Dominion Act. 
 
 R. S. N. S., ch. 53, sec. 21 (3) (4). 
 
 13. No interest shall accrue 
 
 (any 
 
 (0 
 
 m 
 
 resj)ect of any share upon which any call is in arrear, or in res- 
 pect to any oilier share held by such shareholder while such call 
 remains unpaid. (2) 
 
XXXI 
 
 in 
 
 Dominion and Provinciai- Railway Acts. 
 
 .„n -r. Ul — fU "Tl'.e pionri'nois of any shave," 
 
 P- 5' M c 130' sec 8S. Same as Onur.o 
 
 N ?5 iS; chf .8, sec. 28 (5). Same as Onlano. 
 
 K," S N. S., cl.. 53, «'^<=. 2> (5)- S-™<= «^ '■i"'-''''^" 
 
 SHARES. 
 
 T\ Shares in the (company) (0 "W, ^^ "^"^ . ^''^'^'' ^^^^^^..^ 
 th rltf ) be sold and CU-ansfen-ed)(3) by in..nn.ent in wnt.ng, be 
 
 le d .licate,-one' part of which shall be dehvcred to the 
 di ctor«, o be filed and kept for the use of the company, and 
 H'nuy whereof shall be made in a book to be kopt for that 
 ; r "e ; and no interest (or dividend) (4) on the share, trans- 
 S shall be paid (to) (5) the purchaser unfl such duplicate 
 is so delivered, filed and entered. 
 
 K S O.cb. .70, sec. 37(1)- i) " underlalung," (2) '= paries,- (3) 
 
 "t'To'^An^V.;r'"SmeasOntano. . ^ ^ ,, , .„ 
 
 V t' H:^ .- ■ ^o ec. 89. Same as Ontano, excepting (5) by ? 
 K. S ^'•?'-'*- V°',s sJc 20 (!)• S^'^e as Dominion, excepting (1) 
 N. 15., »89V. cb If'^p^l. ,,i ,a of." 
 
 ""r s'n'.'s', ch!53, sec. 22 (I). Same as O.Uaiio e.xcepting (4) remains. 
 
 74. (Transfers) (i) (except in the case ^^ "^^^^^Z^, 
 .h.res^ (2) shall be in the form following, -r to the like eff.ct, 
 varying the names and descriptions of the contracting parties as 
 the case requires, that is to say :- 
 
 T \ B in consideration of the sum of , P^"a ^o 
 
 hVc''D hereby sell and transfer to him share (or 
 
 me by C. U., n^r > , to hold to him, 
 
 «lv\res^ of the stock ot llie » 
 
 le said C. D., his heirs, executors, administrators and assigns 
 - successor: and assigns, .. the case may ic) (3) subject to 
 he same rules and orders and on the same conditions that 
 eld the same immediately before the execution hereof. And 
 he said C. IX, do hereby agree to accept of the said - sha.e 
 .'Shares) subject to the same -les, orders and con itions 
 Witness our hands this day of ni the jear 
 
 ''(3" In the case of fully paid shares the transfer may be in As^to paid-up 
 such form as is prescribed by by-law of the company.) (4) 
 
 iii> 
 
 I: i 
 f 
 
 I:: 
 
 I' 
 
I '1 
 
 H .1 
 
 m 
 
 m 
 
 1'' 'I 
 
 K\i I' 
 
 XXXll 
 
 The Railway Law ok C'anaha. 
 
 K. S. O , cli. 170, sec. 37 (2). (I) "sales," (2) omitted, (3) oniittcd, (4) 
 (iinittid. 
 
 K. S. ()., Art. 5137 (2). Same as Ontario. 
 
 K. .^. M.,cli. 130, sec <yO. Same nsOmaiio, c.xceiitiiit; (i) " tr.niisfers " 
 instead d " sales." 
 
 N. 15., 1S9I, cli. 18, sec. 29 (2). Same as Ontario. 
 
 K. S. N. S., cli. 53, sec. 22 (2). Same as Ontario. 
 
 Shares i>er 
 
 75. 
 
 The stock ol" the company shall be pcisoiKil piopcrty; 
 
 sonal proper iji,, „,, ^\y^^y^.^ sliall I)c transferal 
 
 ty, etc. 
 
 )lc iiiuil all previous calls 
 tiicreoii iiave been (Ailiy) (1) paid uj), or until the said shares 
 have been declared forfeited for the nonpayuienl (jf calls thereon ; 
 and no transfer of less than a whole shaic shall be valid. 
 
 R. S. 0..cli. 1:0, 
 
 sec. 37 
 
 K. S. (V, Art. 5137 (: 
 
 K. S.M.,cl). i3(>, sec. 91.— (i) Omitted. 
 
 N. l! , 189I, cti. IS, sec. 29 (3). 
 
 R. S. N. S., ch. 5: 
 
 2-! (3)- 
 
 1 lansmission 
 
 TO. Jf any shaie in t|-,c cajiital sloe!: of ilie coir.jiaiiy is 
 otherwise transmitted bv the death, bankruptcy or last will, donation or 
 
 than by trans 
 fer, 
 
 teslanient, or 
 
 by ll 
 
 le intestacv 
 
 any 
 
 hare 
 
 hoi 
 
 cler, or 
 
 b}' 
 
 an\ 
 
 lawful means other than the trausler hereinbefore meiiliiuieJ, 
 the person to wlmm su<:h share is transmitted shall deposit in 
 the office of the comp.iny a sitatement in writing, signed by him, 
 
 which 
 
 1 shall decKire the manner of such transmission, togeincr 
 with a duly certified < op)- or probate of such will, donation or 
 teslanient, or sufl'icieiil extracts therefrom, and such other docu- 
 ments or proof as are necessary ; and wilhoui suth ]>roof the 
 person to whom the share is so lransniiit(.d, as aforesaid, shall 
 not be entitled to receive any part of the jirofils of the company, 
 or to vote in lespect of any Mich share as the hoi ler thereof. 
 K. S. O., ch. 170, sec. 37 (4). 
 
 K 
 
 R, S. M.,cl 
 
 «'<• 5'.^7 (4^ 
 
 I. 130, see. 92. 
 N. 1!., 189I, ch. I.S, see. 29 (4). 
 K. S. N. S., ch. 53, see. 22 (4). 
 
 Company not <i<^^ i^As ameiuh'il by ^S'Sf) I'ic.ih. 27, .-dv. 2.) 'J'lie company 
 hound to see ,,, .,1 ,. ".. .• c , ^ 1^1 
 
 to trusts etc. ^'''i" ""'^ ''^ bound to see to the execution of any trust, whether 
 
 express, im])lied or constructive, to which any share or security 
 issued by it is subject, and whether or not the company has had 
 notice cf the trust; and it may treat the registered holder as 
 the absolute owner of any such share or security, and, accord- 
 ingly, shall not be bound to recognize any claim on the part of 
 
Dominion and Provincial Railway Acts. xxxii; 
 
 any other person whomsoever, with respect to any sucli 
 share or security, or the dividend or interest payable thereon : 
 Provided, that nothing herein contained shall pre\ent a person Proviso, 
 equitably interested in any sucii share or security from procuruig 
 the intervention of the court to protect his rights. 
 
 R .S. O., cli. 170, sec. 37 (5). Tlie company shall not he hcrnivl to see Id 
 the execution of.-xny trust, whetlier express, implied or consiruclive, to which 
 any ot the shares may !« suhjoct ; and the receipt of the party ui whose name 
 any share st.amls in tlie books of the company, or if it stands \n the name of 
 more parties than one, the receipt of one of tiie i>arties named in the register 
 of shareholders, shall from time to time be a suflicient dischari;e to the com- 
 pany for any dividend or other sum of money payable in respect of the fliare, 
 notwithstanding any trust to which the share may then be subject, and wlielher 
 or not the company have had notice of the trusts, and the company shall not 
 Ik- bound to see to the application of the money paid upon such receipts. 
 
 R. S. (;>., Art. 5137 (5). Same as Ontario. 
 
 R. S. M., ch. 130, sec. 93. Same as Ontatio. 
 
 N. 15., 1S9I, ch. 18, sec. 29 (5). Same as Ont.ario. 
 
 R. S. N. S., ch. 53, sec. 22 (51. Same as Ontario. 
 
 78. 'I'he certificate of proprietorship of any share shall be (jeuiiicate ot 
 admitted in all courts as /;-////,? /<rm evidence of the title of any P' :'pri|-'ioj. 
 shareholder, his executors, administrators or assigns, (or succes-g^i.ignce. 
 sors and assigns, as tlie case may be), (i) to the share therein 
 specified. 
 
 R. S. O, ch. 170, sec. 35 (7). 
 
 R. S. ()., Art. 5>35 (7)- 
 
 R. S. M.,ch. 130, sec. 77. 
 
 N. li., i89i,ch. 18, sec. 27 f?). •.• /,x 
 
 R. S. N. S., ch. 53, sec. 20 (7). Same as Doinmio.. omiUmg (i). 
 
 1<) The want of such certificate shall not prevent the holder Sale without 
 - ,• • .1 ,(■ certilicatc. 
 
 of any shave from disposuig thereol. 
 
 K. S. 0.,ch. 170, sec. 35 (S). 
 R. S. •,)., Art. 5135 (S). 
 R. S. M ,ch. 130, sec. 7S. 
 
 R. S. N. S.,ch, S3, sec. 20(8). 
 
 80 Every person who neglects or refuses to pay a ratable penalty for 
 
 share of the calls as aforesaid, for the space of two months after reij'sal to pay 
 
 the time appointed for the payment thereof, shall forfeit to the 
 
 company, for the benefit thereof, his shares in the company, and 
 
 all tlie profit and benefit thereof. 
 
 R. S. 0.,ch. 170, sec. 35 (9). 
 R. S. Q., Art. 5135 (9). 
 R. S. M., ell. 130, sec. 79. 
 N 15.. 1891, ch 18, sec. 27 (9). 
 R.S.N. S., ch. S3, sec. 20(9). 
 
 lu 
 
,. 
 
 XXXIV 
 
 The Railway Law of Canada. 
 
 Illll 
 
 pi?! 
 
 l\ 
 
 i 
 
 ! 
 
 % 
 
 ill 
 
 Effect of foi-- 
 feiture as to 
 liability. 
 
 Whtn only gj^, ^q advantage shall be taken of the forfeiture unless the 
 
 be taken ad shares are declared to be forfeited at a general meeting of the 
 
 vaninge uf. company, assembled at any time after such forfeiture has been 
 
 incurred. 
 
 R. S. O., ch. 170, sec. 35 (10). 
 R. S. Q., Art. 5135 (10). 
 R. S. M., ch. 130, sec. 79, 
 N. 15., 1891, ch. 18, sec. 27 (10). 
 R. .S. N. S., ch. S3, sec. 20 (10). 
 
 83. Every such forfeiture shall be an indemnification to and 
 for every shareholder so forfeiting, against all actions, suits or 
 prosecutions whatsoever commenced or prosecuted for any 
 bre. ' of contract or otiier agreement between such shareholder 
 and the otiier shareholders with regard to carrying on the under- 
 taking. 
 
 R. S. O., ch. i-o. sec. 35 (il). 
 
 R. .S.Q,Ait.5i35(ii). 
 
 R. S. M., ch. 130, sec. So. 
 
 N. B., 1891, ch. 18, sec. 27 (11). 
 
 R. S. N. S., ch. S3, sec. 20 (11). 
 
 83. The directors may sell,"either by public auction or pri- 
 evate .sale, and in such manner and on such terms as to them 
 seem meet, any shares so declared to be forfeited (or any uti- 
 issued shares), (i) or may pledge such (2) shares lor the pay- 
 i ,ent of loans or a- vances made or to be made thereon, or for 
 the payment of any sums of money borrowed by or advanced to 
 the company (provided that authority for such purpos-i and for 
 the issue of the stock be first given at a special general meeting 
 of the shareholders called for the purpose). (3) 
 
 R. S. O., ch. 170, sec. 35 (12). — (i) Substitute "and also any shares 
 remaining unsubscribed for in the capital stock of the company," (2) "for- 
 feited or unsubscribed," (3) omitted. 
 
 R. S. Q., Art. 5135 (12). Same as Ontario. 
 
 R. S. M., ch. 130, sec. 81. 
 
 N. 15., 1S91, ch. 18, sec. 27 (12). 
 
 R. S. N. S., ch. S3, sec. 20 (12). 
 
 Forfeited 
 shares may 
 
 sold. 
 
 Proviso : au 
 thority to be 
 obtained. 
 
 Ct'ilitlcato of 
 Ueasurer to 
 be evidence 
 of forfeiture 
 
 84. A certificate of the treasurer of the company, that the for- 
 feiture of the shares was declared, shall be sufficient evidence of 
 the fact, and of their purchase by the purchaser ; and such cer- 
 
 and of title of^jj^^^^g ^yj(]^ jj^g receipt of the treasurer for the price of such 
 
 imrchaser, .... 
 
 shares, shall constitute a good title to the shares ; and the certifi- 
 cate shall be, by the said treasurer, registered in the name and 
 
 I'll 
 
 m 
 
-1 
 
 ess the 
 
 of the 
 
 s been 
 
 Dominion and Provincial Railway Acts. xxxv 
 
 with the place of abode and occupation of the purchaser, and 
 
 shall be entered in the books required to be kept by the by-laws 
 
 of the company ; and such purchaser shall thereupon be deemed 
 
 the holder of such shares, and shall not be bound to see to the 
 
 application of the purchase money, — and his title to such shares 
 
 shall not be affected by any irregularity in the proceedings in 
 
 reference to such sale ; and any shareholder may purchase any 
 
 sliares so sold. 
 
 R. S.O., cli. 170, sec. 35 (13). 
 
 R. S. (J., Alt. 5135 (13). 
 
 R. S. M., cli. 130, sec. 82. 
 
 N. li., 1S91, cli. 18, sec. 27 (13). 
 
 R. S. \. S., cli. 53, sec. 20 (13). 
 
 85. Any shareholder who is willing to advance the amount Interest on 
 
 of his shares, or any i)art of the money due upon his shares jj^.. s'-"ii' p-ih '" 
 
 ' ' ' -^ ' advance, 
 
 yond tlie sums actually called for, may pay the same to the com- 
 pany, — and upon the principal moneys so paid in advance, or 
 so much thereof as, from time to time, exceeds the amount of 
 the calls then made upon the shares in respect to which such 
 advance is made, the company may pay such interest (at the law- 
 ful rate of interest for the time being) (i) as the shareholders, 
 who pay such sum in advance, and the company agree upon; 
 but such interest shall not be paid out of the capital subscribed. 
 
 R. S. O., ch. 170. sec. 35 (14). 
 R. .S.Q.,Art. 5I35(I4)■ 
 R. S. M., ch. 130, sec. 83. 
 N. 15., 1891, ch. 18, sec. 27 (14).— (I) Omitted. 
 R. S. N. S., cii. 53, sec. 20 (14). 
 
 80. Every shareholder shall be individually liable to the ere- Liability of 
 ditors of the company for the debts and liabilities of the com- ^^''"'-'''°''''-'''^' 
 pany, to an amount equal to the amount unpaid on the stock 
 held by him, and until the whole amount of his stock has been 
 paid up; but no sucii shareholder shall be liable to an action in 
 respect of his said liability until an execution (at the suit of the 
 creditor) (i) against the company has been returned unsatisfied 
 in whole or in part. (2) 
 
 -(I) OmittcJ, (2) additional "and the 
 be the amount recoverable with costi 
 
 R. S. O,. ch. 170, sec. 38 (I), 
 amount due on such execution slial 
 against such shareholder " (</) 
 
 R. S. O., Art. 513S. .S.Tuie as Dominion, excepting (i) omitted. 
 
 R. S. M., ch. 130, sec. 96. Same as Untario, excepting (c) .idditional 
 " provided that the payment due on such execution is less than the unpaid 
 portion of the slock." 
 
 i P!t» f^ U l l >!> Hl li|i i i^ j Vn ii ^ wwi* 
 
XXXVI 
 
 The Railway Law ok Canada. 
 
 :i.l 
 
 
 V.4 
 
 ^i:i 
 
 
 Aliens to 
 have equal 
 
 riijhts. 
 
 llecord of 
 i-liaiehokler 
 
 N. B , 1891, ch. 18, sec. 30. Same as Dominion, excepting (1) omitted. 
 K. .S. N. S., ch. 53, sec. 23 (i;. Same as Don;anlon, excepting (1) 
 oniitteil. 
 
 S7. All shareiioldcrs in the company, wlielher British subjects 
 or aliens, or resident in Canada or elsewhere, shall have eriual 
 rights to hold stock in the company, and to vote on the same, and 
 shall be eligible to office in the company. 
 
 88. A true and perfect account of the names and jilaces of 
 ^' abode of the several shareholders shall be entered in a book, 
 which shall be kept for tiiat purpose (and which shall be open to 
 the inspection of the shareholders), (i) 
 
 R.S.O.jCh. 170, sec. 32 (2). — (I) Sul)stitute " as well .ns of the sever.nl 
 persons als-o from lime to time become proprietors of or entitltd to any 
 shares therein, and of all other acts, | roceedings and transactions of the com- 
 pany and of the directors lor the lime Iteing." 
 
 R. S. Q., Art. 5138 (4). Same as Dominion, excepting (i) omitted. 
 
 R. S. M., ch. 130, sec. 97. Same as Ontario. 
 
 N. U., 1891, ch. 18, sec. 30 (2). Same as Ontario. 
 
 R. a. N. S., ch. 53, sec. 23 (3). Same as Quebec. 
 
 Time for con- 
 
 sU'uctioii 
 
 limited. 
 
 LIMITATION OF TIME. 
 
 80. If the construction of the railway is not commenced, and 
 fifteen per cent, (i) on the amount of the capital stock is not ex- 
 pended thereon within two (2) years after the passing of tiie Act 
 authorizing the construction of the railway, or if tiie railway is 
 not finished and put in operation in seven (3) ye.irs from the 
 passing of such Act (then the i)owers granted by such Act or by 
 this Act shall cease and be null and void as respects so much of 
 the railway as then remains uncompleted). (4) 
 
 R. S. 0.,ch. 170, sec. 44(5).— (i) •' ten per cent.," (2) "three years," 
 (3) "ten years," (4) substitute " the corporate existence and po«ers of the 
 company shall cease." 
 
 R. S. <J , Art. 5176 (3). Same as Ontario. 
 
 R. S. M., ch. 130, sec. 124. Same as Ontario. 
 
 N. B., 1891, ch. 18, sec. 35 (5). Same as Ontario. 
 
 R. S. N. S., ch. 53, sec 27 (6). 
 
 GENERAL POWKRS. 
 
 Towers. 90. The company may, subject to the provisions in this and 
 
 the special Act contained : — 
 
 To enter lands (^j) g^ter into and upon any lands of Her Majesty (i) 
 for surveys, . , • ,• , r ■ , J J K j 
 
 e,c_ Without previous license therefor, or into and upon the lands of 
 
 any (2) person whomsoever, lying in the intended route or line of 
 
Dominion and Provincial Railway Acts, xxxvii 
 
 (l) omitteil. 
 icejjling (1) 
 
 sh subjects 
 lavc equal 
 : same, and 
 
 places of 
 in a book, 
 be open to 
 
 the several 
 itltd to any 
 '< of tlie com- 
 
 >raitted. 
 
 niced, and 
 : is not ex- 
 of tlie Act 
 railway is 
 from tlie 
 Act or by 
 much of 
 
 iree years," 
 wers of the 
 
 11 this and 
 
 ijesty (i) 
 
 e lands of 
 
 or line of 
 
 tlie railway; and make surveys, examinations or other necessary 
 arrangements on such lands for fixing the site of the railway, 
 and set out and ascertain such parts of the lands as are necessary 
 and proper for the railway. 
 
 U. S.O.,ch. I70,sec.9(i2) (i3)--(0 A.MUional Mhe pr->lxMty of this 
 
 province," (2) " <-"on'"''^''"" "'"•" ... 
 
 RS ().. Art. 5132 (12). Same as Dominion. , , r 
 
 R S M., ch. .30, sec. .2 (/) (J). " To enter mto an.l upon any lamls o 
 
 any corporation or person whatsoever lyin- in the intendea route or hne of 
 
 railway " Remainder same as Dominion. 
 
 'n B.. I8i)r,ch. iH, sec 9(12). .Same as Ontario. .,■„,„ 
 
 R.'s.N.S.,ch.S3,sec. 7 (12). S.ame as Ontario, exceptin- (1 ) Crown 
 
 Land'.'" 
 
 (/,) Receive, take and hold all voluntary grants ^"^1 dona- ^lo lecc-.ve 
 tions of lands or other property (or any bonus of money or i^„,,_^,^._ 
 debenture, orotherbenefit of any sort) (i) made to it for tiie pur- 
 nose of aiding in the construction, maintenance and accommo- 
 dation of the railway ; but the same shall be held and used for 
 the purpose of such grants or donations only. 
 
 R. S. 0..ch. 170, sec. 9(1).— (1) Omitted. 
 
 R. S. t,)., Art. 5132 («)■ 
 
 R. S. M., L'h. 130, s^'L'- l6(")- 
 
 N. 15., iS9i,ch. 18, sec. 9(1). 
 
 R. S. N. S., eh. 53, sec. 7(1). Same as Ontario. 
 
 (0 Purchase, take and hold of and from any (i) P^^o'""' J^7':;',f;^Jf^, 
 any lands or other property necessary for the construction,' 
 maintenance, accommodation and use of the railway, and 
 also alienate, sell or dispose of (so much thereof as is not 
 necessary for the purposes of the railway). (2) 
 
 R. S. O., ch. 170, sec. 9 (2) -(I) " Corporation or,'' (2) sul.-titute "the 
 
 ^'^'J!^' c 'm ,-1, I •'o sec 16 ('''). Same as Ontario. 
 
 K."S." Q.', Art. 5I32 (2). Same as Ontario, excepting,' (-0 additional, 
 
 "at pleasure." r\ , ■ 
 
 NH., 1891, ch. 18, sec. 9(2). Same as Onlaiio. 
 
 R." S. N. S., ch. 53, sec. 7 (2). Same as Ontario. 
 
 (•/) Make cany or place the railway across or upon the lands To carry rail 
 of any (0 person on the located line of the l^ailway (or within w-^)-;-- 
 one mile thereof, or within such further distance from such line 
 as is prescribed in the special Act). (2) 
 
 R S M ch UO sec. 12 O?).— (I) " Corporation or," (2) omitte.l. 
 
 X B iSq icii 18 sec 9(4). (I) "Corporation," (2) substitute "or 
 
 wiUrIn 111 a sl'-e fiom ^uelAine^tated ',n the special Act, allhou,h 
 
 r h nor or other cause the name of such (.) party has not been entered 
 
 n he book of reference heieinafler mentioned, or althouj;!. some oilier 
 
 
)i'S 
 lij p! 
 
 ! 
 
 
 
 
 ; .' 
 
 
 I' 
 
 
 ? 
 
 ip 
 
 )i: 
 
 XXXVlll 
 
 TiiK Railway Law ok Canada. 
 
 ((() ]i;>rly Ims liucn fiidncously iiiciitiinietl as the (iwikt of, or intilldl to 
 convey, or is interested in Midi lands." 
 
 K. S. (J., Art. 5132 (^). Same as New Driinswick, exceptinf,' (a) " cor- 
 jioratiiin <ir." 
 
 k. S. O., cli. 170, sec, 9 (4). .*^aM)c as New ISrunswick. 
 
 K. .'^. N. S., cli. 53, sec. 7 (4;. Same as New lirunswick. 
 
 To fell trees. (f) Fell or remove any trees which stand within six rods 
 from either side of the railway, or wiiich are liable to fall across 
 the railway track. 
 
 R. S. 0.,c]i. 170, sec. 9(14). " '1\) fell or remove any trees slandinjj 
 in any woods, lands or forests where the ladway ]\Tsses, to the distance of 
 six rods from either side thereof." 
 
 k. S. (J., Art. 5132 (13). Same as Ontario. 
 
 k. S- M., ch 130, sec. 12 (/<■)• Same as Ontario. 
 
 N. H., iS9i,ch. 18, sec. 9(13). Same as IJonunion Act. 
 
 k. S. N. S., ch, 53, sec. 7 (13). Same as Ontario. 
 
 To cross, etc., (/) Cross, intersect, join and tinite the railway with any 
 
 other rail- oilier railway at any iioinl on its route, and upon the lands of 
 ways. . . , 
 
 such other railway, with the necessary conveniences lor the pur- 
 poses of such connection. 
 
 R. S. O., ch. 170, sec. 9 (15) . Same as Dondnion, and in case of any 
 di^a!,'reement, see under sec. 176, infra. 
 
 R. S. (,)., Art. 5132 (14). t-anie as Donnnion, and see sec. 176, iii/ia. 
 
 R. S. M., ch. 130, sec. 12 (/). " Subject to the provisions jiereinafter 
 contained (see sec. 176, /»// '/■</) to cross, intersect, join and unite the railway 
 with any other tail way at any iioint on its route, and upon the lands of the 
 owners of or used in connection with such other railway, with the neces.sary 
 conveniences for the ]Hirposesof such connection, and tlie owners of both rail- 
 ways may unite in forniini; such intersection and ijrant the facilities there- 
 for." 
 
 R. S. N. S., ch. 53, sec. 7 (14). Same as Dominion, and see sec. 176, 
 ill/id. 
 
 To niake 
 bridges, tun- 
 nels, etc. 
 
 (f ) Make or construct in, upon, across, under or over any 
 railway, tramway, river, stream, water-course, canal or highway 
 which it intersects or touciies, temporary or permanent inclined 
 planes, tunnels, embankments, aqueducts, bridges, roads, ways, 
 passages, conduits, drains, piers, arches, cuttings and fences. 
 
 k. S. O., ch. 170, Sec. 9 (5). *' To construct, maintain and work the rail- 
 way acioss, aloni; or upon any (stream of water) (l) water cour.-e, canal, 
 hit;ln\ayor railway which it intersects or touches ; but the (stream). ( i) 
 water couise, canal, highway or railway (</) so intersected or loucheil shall 
 be restored by the Company to its former slate, or to such state as not to 
 impair its usefulness (hut this shall not authorize the obstruction of the 
 navij;ation of any navif,'able waters). (2) 
 
 R. S. Q., An. 5132 (5). Same as Ontario, e.\cepting (1) " river," 
 (2) substitute " subject always, however, to the authority and control of 
 the Parliament of Canada, in so far as resjiects shipping and navigation.'' 
 
 R. S. M.,ch. 130, sec. 12 (/'). Same as Ontario excepting (a) "subject 
 to the authority of the Legislature of this Pro\ince." 
 
 I hiiii 
 
Dominion and Provincial Railway Acts. 
 
 1^, 
 
 xxxix 
 
 aitcii 
 
 N. B., 1891, ch. 18, sue. 9 (5). !^^'"-' "^ ^"'•^''°' ^^''^^''"8 ^^°'''' 
 
 after" w.iter-course." „„r1..,l 1w c8 Vic cli. IV Same as 
 
 R. S. N. S.,ch. 53, sec. 7 (5), amended ;'y.5» /'<=., en. ij. 
 Ontario. Omitting (2), and incl.uling (A) and (/) Uom. Act. 
 
 Ih) Divert or alter, as well temporarily as permanently, 
 the course of any such river, stream, water-course or highway, 
 or raise or sink the level thereof, in order the more conveniently 
 to carry the same over, under or by the side of the railway. 
 
 (/) Make drains or conduits into, through or under any lands 
 adjoining the railway, for the purpose of conveying water from 
 or to tiio railway. 
 
 (/) Divert or alter the position of any water-pipe, gas-pipe, 
 scwcr or drain, or any telegraph, telephone or electricl.ght wire 
 
 or pole. 
 
 R. S. N. S., ch. 53. S.C. 7 (5). as amended by 58 Vic, ch. .3- Not apply 
 to cities . 
 
 (k) Make, complete, alter and keep in repair the railway, 
 with one or more sets of rails or tracks, to be worked by the 
 force and power of steam (or of electricity) (i) or of the atmo- 
 sphere, or of animals, or by mechanical power, or by any com- 
 bination of lliem. 
 
 R. S. O., ch. 170, sec. 9 (''') — ''') Omitted. 
 R S (), .\vt. 51^,2(6). .^ame asOnla.io. 
 r' '^^ M., cli. 130", sec. 12 {,■). Same as Onlano. 
 n" U., iSoI, ch. 18, sec. 9 (6). ^^""^ ^^s I)om.n.on. 
 R.' S. N. S., ch. 53, sec. 7 (6). Same as Ontario. 
 (/) Erect and maintain all necessary and convenient build 
 ings stations, depots, wharves and fixtures, (i) and (construct 
 (2) purchase and accpiire stationary or locomotive engines and 
 carriages waggons, floats and other machinery, necessary for 
 the accommodation and use of the passengers, freight and busi- 
 ness of the railway. 
 
 R. S O., ch. .70, sec. 9 (7). (» " ^"'^ f-"^ ^i'"^' '« ""^^^ '"^ alter,repair 
 or enlan;e the same," (2) omitted. 
 
 or waterway forlhe purpose of carrjin- fieii^lit 01 pa.sLnt,ei:= 
 with iheiraid railway." ,. . ■„ 
 
 N. M., 1891, ch. 18, sec. 9 (7). ^^'"-^ ^^^ "n ar.o. 
 
 R S. N. S., ch. 53, sec. 7 (7). Same as Ontario. 
 
 (,«) Construct or acquire electric telegraph and telephone 
 lines for the purpose of its undertaking. 
 
 'I'd diveit 
 streams, etc. 
 
 'I'o make 
 drains or 
 conduits. 
 
 I'o alter posi- 
 tion of i;as or 
 water pipe, 
 ttc. 
 
 'l"o make and 
 niainiain rail- 
 way. 
 
 I'o erect 
 buildings etc. 
 
 Telegraph 
 and telephone 
 
 lines. 
 
 u 
 
nil 
 
 i'\%k\ 
 
 u\ 
 
 ill 
 
 1 
 
 • 11: 
 
 'I'o make 
 branch rail- 
 ways. 
 
 To convey 
 peisons and 
 goods , 
 
 'l"o alter 
 works 
 
 To do all 
 things neces- 
 sary . 
 
 Powers may 
 be exerciseJ 
 in United 
 Stales. 
 
 xl The Railway Law ok Canada. 
 
 N. IJ., i8(ji,ch. iS, sec. 9(14). 
 
 k. S. Q , Alt. 5176. " kaiUvay companies sliall have the rit;iit to estal)- 
 li^h telegrajih lines along the whole extent uftlie railway, at snih places along 
 the line, anil «ith nflices at tnh places as shall be lUteiniinid by tlio ilirec- 
 tors, (t) and such telegraphs may be used by tlie |niblic generally, in confor- 
 mity with the ink's and regulations that the comiany may addjjt." 
 
 K. .S. N. S.jCli. 53, sec. 7 (20). Same as (Jiubec, excepting (I) "and 
 rates of tarill'tobe from time to time n|ii)ioved by the (iovernor in Council." 
 
 («) Make hraiK Ii fnilw.iy.s, if required and jirovided for by 
 (litis or) (1) the special Act, and iiiatiage the .same, and for that 
 purpose exercise all the powers, privileges and authorities 
 necessary therefor, in as full and ample a manner as for tlie rail- 
 way. 
 
 R. S. O., ch. 170, sec. 9 (8).— (1) Omitted. 
 
 R- S. Q., .\rt. 5(32 (8>.— •(!) Omitted. 
 
 R. S. M., ch. 130, sec. 12 (<).—(!) Omitted. 
 
 N. 1!., KS9I, ch. 18, sec. 9 (8). 
 
 R. S. N. S., ch 53, sec. 7 (8). Same as Ontario. 
 
 (0) Take, transijorl, carry and convey persons and goods (i) on 
 
 the railway, regulate the time and manner in whicii the same 
 
 shall he transported, and the tolls and compu-nsation to be paid 
 
 therefor, and receive such tolls and compensation. 
 
 R. S. O., ch. 170, sec. 9(10). 
 
 R. S. y., Art. 5132 (10).— (i) " of all kinds." 
 
 R. S. M., ch. 130, sec. 12 (^'). 
 
 N. 15., 1891, ch. iS, sec. 9 (to). 
 
 R. S. N. S., ch. 53, sec. 7 (10). 
 
 (/) From time to time alter, repair or discontinue the before 
 tnentioned works or any of them, and substitute others in their 
 stead. 
 
 (ty) Do all other acts necessary for making, maintaining, 
 altering o- repairing, and using the railway. 
 
 R. S. O. , ch. 170, sec. 9 (9). " To construct, erect and make .all other 
 matters and things necessary and convenient for the making, extending and 
 using of the railway, in jiursuance of and according to the meaning and intent 
 of this Act and of the special Act. 
 
 R. S. () , ,\rt. 5132 (9). Same as Ontario. 
 
 K. .S. M , ch. i,vj, sec. 12 (/). Sameas Ontario. 
 
 N. U., 1S91, ch- )S| sec. 9 (9). Same as Ontario. 
 
 R. S. N. S., ch 53, sec. 7 (10). 
 
 C'') (5.3 ^'V., (■//. 28, sec. I.) Any comi)any oi)crating a 
 railway from any i)oint in Canada to tiny point on the Inter- 
 national boundary line may exercise beyond such boundary the 
 l)Owers which it may exercise in Canada, in so 
 
 hich It may 
 permitted by the laws in force there. 
 
 as they are 
 
Dominion and Provini ial Railway Acts. 
 
 xli 
 
 (s) (55-56 Fic, ch. 27, icc. 3, amctidiH,:, 53 / tc, <//. -^^ -f"' ^^ ,,. j,^^.^.,^ 
 I ) Any company wliicli has obtained from the Crown, by way ^.j ,, ,es,>ect 
 of subsidy or otherwise, in respect of the conslruclic.n or opera- to l.uvN. 
 tion of its railway, a right to any land or to an interest m land. 
 lias, and from the time of obtaining such right has had, as m- 
 cidcnt to the exercise of its corporate poweis. authority to 
 acquire, sell or otherwise dispose of the same or any part or parts 
 thereof ; and such company may convey the same, or any part 
 or parts thereof, to any other company wliich has entered mto 
 any undertaking for the construction or operation, m whole or 
 in part of the railway in respect of which such land or uUerest 
 in land was given ; and thereafter such otiier company shall 
 have in respect of such land or interest in land, the same 
 authority as that of the company which has so conveyed it ; and 
 as to any lands given to the company by any cori.oration or 
 other party, as aid towards, or as consideration in wiiole or in 
 part for, the construction or operation of the company's railway, 
 either generally or with respect to the adoption of any particular 
 route, or on anv other account, the authority of the company 
 and of any other company to which it may convey Us right 111 
 any of the said lands shall be the same as if such lands iuid been 
 obtained by tlie company from the Crown as aforesaid. 
 
 91. The company shall restore as nearly as possible to its J-^'^;^!'^")' i« 
 former state any river, stream, water-course, highway, water- ,t,eara, etc , 
 pipe, gas-pipe, sewer or drain, or any telegraph, telephone or tojounev 
 electric light wire or pole which it diverts or alters, or it shall 
 put the same in such a state as not materially to impair its useful- 
 ness. 1 • 1 „ 
 
 R ^ O ch I70 sec q CO. " Hut the stream, water course, high wa> , 
 cana\o;?.\lw; S^oimc'rsS.l or touched, shall be. ren^ 
 pmw to its former state, or to such slate as not to uiipa.r Us usefulness. 
 
 K S O.Art. sn2(0. Sameas Onlano. , v« !■ , 
 
 R:s;M:,ch. f3o,sec.\2(/0. Same as Ontario, exceptmg (.)" subject 
 to the authority of the Legislature of this Province. 
 
 K H iS(,i ch iS sec qCsI. Same as Ontario. 
 
 \{.i;:l^:t)^^lC^^^%^ Vic.,ch.i3. Sameas 
 
 Ontario. 
 
 ^l The company shall, in the exercise of the ,)owers by O.n;pensa^on 
 this or the special Act granted, do as litUe damage as possible, ^i„„^_ 
 and shall make full compensation, in the manner herein and in 
 the special Act provided, to all parties interested for all damage 
 by them sustained by reason of the exercise of such powers. 
 
xlii 
 
 'I'HK Kaiiavay Law ok Canada. 
 
 Ill 
 
 f. 
 
 R. S. O., cli. 170, M'C. 6, " 1 111- power ^livL'n l)y llii- s|it.'cinl Act. to con- 
 struct llic r.iilway, ami to l.Tke mid use l.iinls fnr ilint iiiirpdsc, sliall l)o 
 exercised siil)jt'Ct Id the |iri)vi>ii)iis aiiil restrictions Coiit.iined in this Act.' 
 
 7. —(I) " I'nr the value of lands taken, and for all daina^;es to lands injuri- 
 ously allicted l)y the construction of the railway, in the exercise of tiie 
 powers by this or the special Act, or any Act incorporated therewith, vested 
 in the Company, compensation sh.ill he made to the owners and occu|)iers of, 
 and to all other |>ersons interested in, any lands so taken or injuriously 
 niTecled ;" 
 
 (2) '♦ I'idess otherwise specially provided liy this Act, or the special Act, 
 the amount of such compen-ntion shall be ascertrined and detcnnined in the 
 matnier provided by this Act.'' 
 
 K. S. M., ch, 130, i'CC. 6. .Same as Ontario. 
 
 K. .'^. M,,ch. 130, sec. 7. Same as Ontario. 
 
 k. .S. M, ch. 130, sec. S. " Uid ss otherwise specially jjrovided, the 
 clauses (jf " The Maniiob.-i I'Xpropri.iiion Act," respect in^; tl.u oiler of com- 
 pensation, the notice of intention to arbitrate, the surveyor's cerlillcale ac- 
 companying; such notice-, the appointuunl, (|ualilicatioiis, powers and duties 
 of arbitratois, the proceedini^s upon the arbitratn)n, the revocation of notice, 
 the award and its ellect, the costs of aibiiiatiofi, njipeals from awauls, the 
 payment into ( 'ourt of the amount of the award, the ptjwers of tin- Jud^;e and 
 oflhe Court of (Juien's liencli with refeience 10 the award and tothe com- 
 pensation and the disiiilmiion of the iumpensalion shall be deeiiicd to be 
 incorporated miiliitis iiin/tniiti' v.\\.\\ this Act and the special Act so far as 
 not inconsistent therewith ; and the amount of such compensation sha" be 
 asceriaiiuil and deteiniined in the manner ])iovided by " The Maint(>l)a K.\- 
 jiropiialion Act ; '' and the word '• conlpell^alion '' in such clauses shall bo 
 deemed to include " rent.'" wheie the same may I e j,iven as com|;en»a- 
 tion I and the worii " ( iovernment '' and "Minister" in said clauses 
 mean •' (.'onipany " for the i]urposes of ibis Act, save that the power of the 
 Con)|)aiiy to lake or interfere '.vith the projierty of others without the con- 
 sent oflhe owner is not to be beyond that (jiven by tl.is Act or the special 
 Act, and that this Act, unless otherwise provided l>y the sjiecial .\ct, deler- 
 mines ihe time of the veslin{» in the Company of e.\pro|)rialcd property." 
 
 N. H., iSgi, ch. to, sec. 7. .'^anie as Ontario, sec. 7(1). 
 
 .\. li., 1S9I, cli. 18, sec. 7(1) .Same as Ontario, sec, 7 (2). 
 
 I'OWK.R TO bORKOW MONEV, 
 
 Issue of 
 bonds, elc. 
 authorized. 
 
 OJJ. The clircctors of the company, under tlie autliority of llie 
 sliarcholdeis to them given at any special general niccling, 
 called for the purpose in the manner provided by section forty- 
 one of this Act, at which meeting shareholders representing at 
 least two-thirds in value of the subscribed stock oftiie company, 
 and wlio have paid all calls due thereon, are present in person 
 or represented by proxy, may, subject to the provisions in this 
 Act and liie special Act contained, issue bonds, debentures or 
 other securities signed by tlie president or other presiding officer, 
 and countersigned by the secretary, which counter-signature and 
 the signature to the coupons attached to the same may be en- 
 
 fe; 
 
Dominion and Proviniiai, Raiiwav Acts. 
 
 xliii 
 
 III- 
 re 
 
 II- 
 
 ■ 10 
 
 graved ; and sucli bonds, dtbciUurcs or olhcr securities may be 
 made payable at such times and in surli manner, and at sucli Wlicii tln-y 
 place or places in Canada or elsewhere, and may bear such ■'•i''-' I'!,!,?!,)!^."" "^ 
 of interest not exceeding six per cent, per annum, as the direc- 
 tors think proper. 
 
 2. The directors may issue and sell or pledge all or any of I •i'*|V)H.i! of 
 the said bonds, debentures, or other securities, at the best price """ ^' '■''*^- 
 and upon the best terms and conditions wliich at the time lliey 
 
 may be able to obtain, for the purpose of raising money for 
 prosecuting the said undertaking. 
 
 3. No such bond, debenture or other secuiity s'lail be for a Annnirt of 
 less sum tiian one hundred dollars. l"iii>i, cic. 
 
 4. (^As amended by 55-56 Vic., ch, 37, siw .\ ) 'I'lie power '-Mi-'iit of 
 of issuing bonds conferred upon the company hereiiy or under ''l^^"!!^"'"^ 
 the special Act siiall not be construed as iieing exhausted by 
 
 such issue ; but such power may be exenised, from time tolimr, 
 upon the bonds constituting sucii issue being witlidrawn or paid 
 off and duly cancelled, and the limit to tiie amount ofi)onds, 
 debentures or otlier securities fixed in the special Act shall not 
 be cx'ceeded. 
 
 R. .S. O., cli. 170, sec. 9 {l\ ), ly/i'd/e,/ /ly 53 / '/V, r//, 45, kv. I miJ 
 rt'^/iic:'(i l>y sec, 9, suliaw 20, 21, 22, 23, 24. .Sub sec. 20 same as sec, 93, 
 Dominion Act, cxceptir}; " eigiit )ier cent " for '• six," anil aiMilional. " Itiit 
 no bonds vliall be issued until 2 1 % of tlie costs has been actually expended 
 on the work.'' 
 
 R. S. (J, art. 5132 (l I) " To b irrow from time to time, either in (Canada) 
 ((() or elsewhere, such sums of money as may be expedienl for completing, 
 maintaining and wcrUing the railway (at a rate of interest iK.t excee(linj; tiie 
 Icf^al rate,) (Ji) and to m.nke tiie bonds, debentures, or other securities 
 fjranted for tlie sums so borrowid, payalile either m currency or >terlin(,', and 
 at such place or places witiiin (Canada), (<■; or witliout, as may be deemed 
 advisal)le, and to sell the san.e at such prices or ihscount as may l)e deemed 
 expedient, or be necessary, and to hypothecate, moilgage, or pledt;e tiie 
 lands, tolls, revenues and other propeity of the company fi r the ihie pay- 
 ment of the said sums and the inteiest thereon (but no debcn'.ure shall be for 
 a less sui>i than $100). " (1/) 
 
 K. .S. M., ch. 130, sec. 12 (//). .'^ame as (Quebec, excepliny (</) "this 
 Province"; (/') '• and at a rate of interest autl.oii/ed by the laws of CaiK la, 
 but not exceeding eight jier cent, per annum"'; {c) ■' tiiis province "; (d) 
 omitted. 
 
 N. !>., i89i,ch. 18, sec. 9 (ll). Same as .Manitoba, omitting ''authorized 
 by the laws of Canada, but," also (</) additional, " provided that the limit 
 to the amount cf bonds fixed in the siiecial Act (if any) shall not be ex- 
 ceeded.'' 
 
 k. S. N. .'^., ch. 53, sec. 7 (II). .Same as (Juebec, excepting (/') " eiizht 
 per cent, per annum " and additional " and in all resjiecls such delieniuies 
 
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 XllV 
 
 The Railway Law ok Canada. 
 
 <lt'e(i to scciiif 
 IjoDils. etc. 
 
 rcnaltiL-s nnd 
 woikiiif,' ex 
 peiulitiire h> 
 t)e a Inst 
 charge. 
 
 Powers wliicli 
 may be f^rant- 
 ed by deed. 
 
 Validity of 
 deed. 
 
 Deposit of 
 deed. 
 
 lionds, etc.. 
 to be .T jirefii- 
 enlial claim 
 on the untlcr- 
 taking. 
 
 Holder to 
 Vie a moil- 
 gagee. 
 
 shall be of sucli a character anl amount as shall be fixed by the Act of the 
 Legi.-lature. 
 
 04-. The company may secure such bonds, debentures, or 
 other securities, by a mortgage deed creating such mortgages, 
 cliargcs and incumbrances upon the whole of such property, 
 assets, rents and revenues of the company, j)resent or future, or 
 botli, as are described in the said deed ; but such rents and 
 revenues slvali be subject in tlie first instance to the i/ayment of 
 any pcr.alty imposed for non-compliance with the requirements of 
 this Act resjjecting returns to be made to the Minister, ^ :d next 
 to the payment of the working expenditure of the railway ; 
 
 2. By the said deed tlie compmy may grant to the Iiolders of 
 sucli bonds, debentures, or other securities, or the trustees 
 named in such deed, all and every the powers, riglits and reme- 
 dies granted l)y this Act in respect of the said bonds, deben- 
 tures, or other securities, and all other powers, lights and 
 remedies not inconsistent with this Act, or may restrict the said 
 holders in the exercise of any power, ])iivilege or remedy granted 
 by this Act, as the case may be ; and all the powers, rights and 
 remedies so provided for in such mortgage deed shall be valid 
 and binding, and available to the said holders in manner and 
 fjrm as therein provided ; 
 
 3. Every such mortgage deed shall be deposited in tlie o.'lice 
 of the (Secretary of State of Canada) (2) of which deposit notice 
 shall be given by the company in the {Canada Gazcftf). (3) 
 
 As to securing such bonds, etc., by mortgage deed, etc., in Provincial Acts, 
 see notes to sec. 93, supra. 
 
 Ontario, 53 Vic, ch. 45, sec. i, adding sub sec. 21 to sec. 9. K. .S. O., 
 ch. 170. Same as iJoininion, excepting (2) " office of the Provincial .Se- 
 cretary," (3) " Ontario Gazette." 
 
 05. The bonds, debentures, or other securities, hereby 
 authorized to be issued shall be taken and considered to be the 
 hist preferential claim and charge upon the company, and the 
 franchise, undertaking, tolls and income, rents and revenues, 
 and real and personal property thereof, at any time acquired, 
 save and except as provided for in the next preceding section ; 
 
 2. Each holder of the said bonds, debentures, or other secu- 
 rities shall be deemed to be a mortgagee or incumbrancer upon 
 the said securities pro rata with all the other holders ; and no 
 
 ■s* 
 
Dominion and Provincial Railway Acis. xlv 
 
 proceedings authorized by law or by this Act shall be taken to 
 enforce payment of the said bonds, debentures, or other secu- 
 rities, or of the interest thereon, except through the trustee or 
 trustees appointed by or under such mortgage deed. 
 
 Ontario, 53 Vic, ch. 45, sec. I, adding sub-sec. 22 to sec. 9. K. S. O., 
 ch. 170. Same as Dominion. 
 
 *)6. If the company makes default in paying the principal 01 ^^^j^ 
 or interest on any cf the bonds, debentures or other securities, ,,,,,£ of,,^,,. 
 hereby authorized, at the time when the same, by the terms of iK-vn.ont. 
 the bond, debenture, or other security, becomes due and payable, 
 then at the next annual general meeting of the company, and at all 
 subsequent meetings, all holdeis of bonds, debentures or other 
 securities, so being and remaining in default, shall, m respect 
 thereof, have and possess the same rights and privileges and 
 qualifications for being elected directors and for voting at general 
 meetings as would attacii to them as shareholders if they held 
 fully paid-up shares of the company to a corresponding amount ; 
 
 2 The lights given ])y this section shall not be exercised by ui^hts of 
 any" such holder, unless it is so provided by the mortgage deed, '-'jj^^^ ' - 
 nor unless the bond, debenture or other securUy, m respect ot 
 which he claims to e5.ercise such rights, has been registered in 
 his name, in the same manner as the shares of the company aie 
 registered, at least ten days before he attempts to exercise the 
 right of voting thereon; and the company shall be l;ound on K.-ist,:uion. 
 demand to register such bonds, debentures or other securities, 
 and thereafter any transfers thereof, in the same manner as 
 shares or transfers of shares ; 
 
 3. The exercise of the rights given by this section shall ^^^^^^^^^'^ 
 take awav, limit or restrain any other of the rights or remedies '" ' ' 
 to which the holders of the said bonds, debentures or other 
 secuiities are entitled under the provisions of such mortgage deed. 
 
 Ontario, 53 Vic , ch. 45. sec I, adding sub-sec. 23 to fee 9. R. S. O., 
 ch. 170. Same as Dominion. 
 
 t>7 AH bonds, debentures or other securities hereby au- -nan^fev of 
 thorized may be made payable to bearer, and shall in that case ''"'"'^^ ^"-"• 
 be transferable by delivery, until registration thereof as herein- 
 before provided, and while so registered they shall be transfer- 
 able by written transfers, registered in the same manner as in tiie 
 case of the transfer of shares. 
 
 h • 
 
 
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 xlvi 
 
 The Railway Law of Canada. 
 
 •fa 
 
 No sea 
 (luiied. 
 
 !''■ 
 
 Ontario, 53 Vic, ch. 45, sec. i, adding sub-sec. 24 to sec. 9. R. S. O., 
 ch. 170. Same as Dominion. 
 
 I'lomissory 98. The coinpoiiy may become party to promissory notes 
 
 notes niav be and bills of exchange for sums not less than one hundred dollars ; 
 and every such note or bill made, drawn, accepted or indorsed 
 by the president or vice-president of the company, or other 
 officer authorized by the by-laws of the company, and counter- 
 signed by the secretary, shall be binding on the company ; and 
 every such note or bill of exchange so made, drawn, accepted or 
 indorsed shall be presumed to have been made, drawn, accepted 
 or indorsed with proper authority until the contrary is shown ; 
 and in no case shall it be necessary to have the seal of the com- 
 pany affixed to such promissory note or bill of exciiange, nor 
 shall the president or vice-president or secretary or other officer 
 so authorized be individually responsible for the same, unless 
 such promissory note or bill has been issued without proper 
 Notes not to authority ] but nothing in this section shall be construed to 
 be payab e to authorize the company to issue any note or bill payable to 
 bearer, or intended to be circulated as money or as t''"* note or 
 bill of a bank. 
 
 POWtR TO TAKE OR USE LAND AND MATERIALS DEFINED AND 
 
 LIMITED. 
 
 As to lands »?0. No company (a) shall take possession of, use or occupy 
 vested in Her any lands (vested in Her Majesty) (i) without the consent 
 ^]eiy. of the (2) Governor in Council ; but with such consent, any 
 such company may (upon such terms as ihe Governor in 
 Council prescribes) (3) take and appropriate, for the use of 
 its railway and works, but not alienate, so much of the (4) 
 lands of the (Crown) (5) lying on the route of the railway as 
 have not been granted or sold, and as is necessary for such rail- 
 way, as also so much of the public beach, or of the land covered 
 with the waters of any lake, river, stream or canal, or of their 
 respective beds, as is necessary for making and comjjleting and 
 Lands vested using its said railway and M'orks (and whenever any such lands 
 
 m Her Majes- ,j^ ji^i Her Majesty for anv special purpose, or subject 
 
 ty lor special •' -^ . ' , . 
 
 puiposes. to any trust, the compensation money which the company pays 
 
 therefor shall be held or applied by the Governor in Council for 
 
 the like purpose or trust). (6) 
 
Dominion and Provincial Railway Acts. 
 
 xlvii 
 
 to occupy As to laiiils 
 reserved for 
 
 R. S. O., ch. 170, sec. 9 (3)— (1) belonging lo the Province," (2) 
 " Lieutenant," (3) omitteci, (4) '' wild,*' (5") " Province," (6) omitted. 
 
 R. S. Q.jArt. 5132 (3). With the constnt of the LieuteiiantGovernor 
 in Council, to take and aiiprcpriate, for the use of its railway and works, but 
 not alienate, so much of the wild lands of the Crown, lying on the route of 
 the radway, as have not been granted or sold, and as may he necessary for 
 such railway, as also so much of the public beach or of the land covered with 
 the waters of any lake, river, stream, canal, or of their respective beds, as is 
 necessary for making and completing and using their .'■aid railway and works, 
 subject, however, to the authority and control of the rarliament of Canada, 
 in so far as shipping and navigation are concerned. 
 
 R. S M.jCh. 130, sec, 10. Same as Ontaiio, e.\cep!ing (a) " lieretofoie or 
 hereafter authorized to construct a railway," and additional, •■ subject, how- 
 ever, to the exceptions contained in the following .•■ection." 
 
 N. IJ., 1891, ch. iS, sec. 9 (3). Same as Oniario. excepting (4) " unoccu- 
 pied and unreserved." 
 
 R. S. N. S., ch. 53, sec. 7 (■3), Same as Dominion, excepting (3)oniitie(l, (4) 
 " wild," (6) i-ubi-titute " i-ubject, however, tu the authority and control of the 
 Parliament of Canada as regards navigation and shipping." 
 
 100. Whenever it is necessary for such com|)any 
 any part of tlie lands belonging to Her Majesty reserved 'ormjiit^i,- . oi- 
 naval or military purposes, it siiall first apply for and obtain the naval \w. 
 license and consent of Her Majesty (under the hand and seal of P""^*"' 
 the Governor General), (i) and having obtained such license and 
 consent, it may, at any time or times, enter into and enjoy any 
 
 of the said lands for the purposes of the railway (but in the case Consent of 
 
 of any such naval or military reserves, no such license or consent P/"'.^^'.""" 
 
 shall be given except upon a report first made thereupon by the 
 
 naval or military authorities in which such lands are for the time 
 
 being vested, approving of such license and consent being so 
 
 given). (2) 
 
 K. S. M., ch. 130, fee, ir. (i) Substitute " through the proper ofTicers or 
 Department of the Ciown or of the Government of Canada," (2) omitted, 
 
 101. No company shall take possession of or occupy any As to Indian 
 portion of any Indian reserve or lands without tne consent of the l'"*"''^- 
 Governor in Council; and when, with such consent, any portion 
 
 of any such reserve or lands is taken possession of, used or occu- 
 pied by any company, or when tlie same is injuriously affected 
 by the construction of any railway, compensation shall be made 
 therefor, as in otiier cases. 
 
 102. A conipany may, for the purpose of obtaining a right As to lands of 
 of way over or through lands owned or occupied by any other o" '"=.'' ™"i 
 company, ar.d for obtaining the use of the tracks, stations or sta 
 
 panics, etc. 
 
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 xlviii 
 
 The Railway Law of Canada. 
 
 tioii grounds of anotlier company, or for the purpose of con- 
 structing and operating its railway, take possession of, use or 
 occupy any lands belonging to any other railway company, with 
 the a])proval of the Railway Committee, which approval such 
 committee may give on any application of which such other com- 
 pany has, in the opinion of the committee, had reasonable notice. 
 Oideis may On any such application, the Railway Committee may make 
 such^ca^e'" ^"^^^ orders and give r.uch directions as to it appeals just or in 
 Certain provi- the public interest ; ai d all the jjrovisions of the law at any time 
 *""^"^'°'''l'l^'y- applicable to the taking of lands and their valuation and the com- 
 pensation therefor, and appeals from awards thereon, shall apply 
 to such lands. 
 
 Extent of land 103. The lands which may be taken without the consent of 
 
 that may be the owner thereof shall not exceed (thirty-three) (i) yards in 
 
 breadth, but in places where the railway is raised more than five 
 
 feet higher or cut more than five feet deeper than the surface of 
 
 the line, or where (offsets) (a) are established, or where stations, 
 
 depots or fixtures are intended to be erected, or goods to be 
 
 delivered, the lands, which may betaken without the consent of 
 
 the (owner), (/') shall not be more than (six hundred and fifty 
 
 yards in length by one hundred yards in breadth), (2) (except 
 
 where more ample space for the accommodation of the public, or 
 
 of the traffic on the railway, or for protection against snow drifts 
 
 is required — in which cases such greater quantity of land or land 
 
 covered with water may be taken, as the Minister authorizes). (3) 
 
 R. S. O., ch. 170, sec. ir. — (i) "thirty," (2) "two hundred yards in 
 '.cngth by one hundred and fifty yards in breadth," (/') " person authorized 
 to convey sucii lands," (3) omitted. See also section 104, infra. 
 
 K. S. Q., Alt. 5164 (I) SameasDoniinion,excepting ((f) " a double track 
 is," (2) " t\vo hunditd and fifty yards in length by one hundred and fifty 
 yards in breadth," (3) omitted. See also section 104, ;/'/;•« . 
 
 S. M , ch. 130, stc. 22. Same as Ontario, See also section 104, iu/i\i, 
 1891, ch. 18, sec. II, Same as Ontario. See also sec, 104, infra. 
 
 Exctjition. 
 
 1^ 
 
 U 
 
 R. S. N. S., ch. 53, sec. 9 (i). Same as Dominion, excepting (2) 
 liundred and fifty yards in length by seventy live yards in breadth." 
 also sec. 104 infra. 
 
 ' two 
 
 See 
 
 Extra land to 104. The places at which such extra breadth is to be taken 
 l)e shown on e,]\;x\\ be shown on the map or plan (i) so far as the same are 
 then ascertained ; but the fact of their not being so shown shall 
 not prevent such extra breadth from being taken, if it is taken 
 upon the line shown, or within (one mile thereof, or within such 
 
 map or plan. 
 
 :lii ■ 
 
Dominion and Provincial Railway Acts. xlix 
 
 further distance from such line as is prescribed in the special 
 Act). (2) 
 
 R. S. 0., ch. 170, sec. Il.-(i) Acklitional "or plans or sections," (2) 
 substitute "the distance aforesaid from such line." 
 
 R. S. Q., Art. 5164 (I). Same as Ontario. 
 
 N. B., 189I, ch. 18, sec. 11. Same as Ontario 
 
 R. S. N. S., ch. S3, sec. 9 (i). Same as Ontario. 
 
 lOo. The extent of tlie public beach, or of the land covered Public beach, 
 with the waters of any river or lake in (Canada), (1) taken for 
 the railway, shall not exceed the quantity (hereinbefore limited). 
 
 (2) 
 
 R S. O., ch. 170, sec. I2.-(I) "the Province," (2) "limited in the 
 last precedint; clause." 
 
 R. S. Q., Alt. 5164 (2). Same as Ontario. 
 R. S. M., ch. 130, sec. 23. Same as Ontario. 
 N B , 1X91, ch. 18, sec. 12. .Same as Ontaiio._ 
 R. S. N. S., ch. S3, sec. 9 (2). Same as Dominion. 
 
 106. Whenever any company (i) requires, at any (2) P|'^ce Proce^edi^^s^ 
 on the line of its railway, more ample space for the convement^^j^^ land for 
 accommodation of the pul)lic or of the traffic on the railway (or certain pur- 
 for protection against snow drifts) (3) than it then possesses orP°^^^- 
 can take without the consent of the owners thereof, the company 
 may cause (a map or plan and book of reference) (4) to be 
 made of the additional lands required at such (5) place for the 
 purposes aforesaid. (6) 
 
 RSO ch 170, sec. 47.— (I) "incorporated by, or subject to the au. 
 thovitvofthe Le!,dslature of Ontario/' (2) " station or," (3) omitted, (4) 
 «'a plan " (s) "station or," (6) " not being in actual use for similar pur- 
 noses by anv other railway company ; " an<l see sees. 107, 108, t'lfnu 
 R s' O 'Alt. 5165. Same as Ontario, and see sees. 107, 108, "//ra. 
 K S*. N.' S., ch 53, sec. 10. Same as Ontario mutatis mutandis ; and see 
 sees. 107 and loS injra. 
 
 107. The company may transmit the map or plan ''^"^ the AppUcation^ 
 book of reference to the Minister with an application, on behalf ^^^^ 
 of the company, supported by affidavit, referring to such map or 
 plan and book of reference, and slating that certain lands shown 
 therein are necessary for such purposes, and that no other land 
 suitable for such purposes can be acquired at such place on 
 reasonable terms and with less injury to private rights, and re- 
 questing the Minister to authorize the taking thereof for such 
 purposes under this Act. 
 
 r S O ch 170, sec. 47, "(and for the purpose of making such plan 
 shall have "the powers granted to railway companies for making surveys by 
 
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 1 
 
 The Railway Law ok Canada. 
 
 Notice to 
 owner and 
 certificate to 
 be transmit- 
 ted to Minis- 
 ter. 
 
 Minister may 
 grant the ap- 
 plication after 
 inquiry. 
 
 Deposit of 
 copy of plan, 
 etc. 
 
 Powers of 
 company on 
 the granting 
 of certificate. 
 
 (section 9 of this Act) (j), and may iransniit the plan to the Commissioner 
 of I'liblic Worlvs, with an application (supiioitcd by affidavit) on buliaif of 
 llic Company, rcferrini; to the plan, and slaliiii; that certain ^Mound shown 
 thereon is necessary for the purposL's aforesaid, and that no other fjround 
 suitable for the jnirpose can be acquiied at sttch place on leasonable terms, 
 and witii less injury to private ritjlUs, and requestiiii; the commis-ioners to 
 authori/.e the takiiii,' theieuf for such purposes under this Act." 
 
 K. S. Q., Art. 5165. .Same as Ontario, excepting; (<;) "article 5132." 
 R. S. N. .S,,cli. 53, sec. 10. Same as Ontario, excepting,' (a) "seventh 
 : .'Ction of this chapter." 
 
 li>8. .'Vt least leu day.s' notice of sucii application shall be 
 
 given to the owner (or [jossessoi) (<?) of such property ; and 
 
 the correctness of the (map or phm and book of reference) (i) 
 
 and the truth of the allegations in such application shall be 
 
 certified by the president or om; of the directors of the coni- 
 
 ])any, and by its engineer, and such (map or plan and ijook of 
 
 reference) (2) and statfrnvnt shall be made and transmitted to 
 
 the Minister in duplicate. 
 
 R. S. 0.,ch. 170, sec. 47.— (I) " Plan,'' (2) "plan." 
 
 R. S. Q , Art. 5165. (,i) Omitted, (1) "plan," (2) ''plan." 
 
 R. .S. IS. S., ch. 53, sec. 10. Same as Ontario. 
 
 lot). 'I'he Minister (i) shall inquire into the correctness of 
 
 the (map or plan and boo^. of reference) (2) and the truth of 
 
 the allegations of such ai)plication, and, if he is satisfied thereof, 
 
 shall grant a certificate to that effect, and declaring it to be 
 
 necessary in the public interest that the land shown on such 
 
 (maj) or plan and book of reference) (3) or any less quantity, 
 
 should be acquired by the company ; and such certificate shall 
 
 be annexed to one of the duplicates of the said (map or plan 
 
 and book of reference) (4) and statement, and the other 
 
 dui)licate shall remain at the (department). (5) 
 
 R. S.O., ch. 170, sec. 48. — (1) ''Commissioner of Public Works," (2) 
 "plan," (3) "plan," (4) "plan," (5) "office of the Commissioner." (a) 
 R. S. Q., Art, 5166. Same as Ontario, excepting {a] "of Public Works." 
 R. S N. S., ch. 53, sec. 11. Same as Ontario. 
 
 110. A copy of the duplicate of such map or plan and book 
 of reference and statement and of such certificate shall be de- 
 posited in the oftice of the registrar of deeds for the county or 
 district in which the lands lie. 
 
 111. Upon the granting of such certificate, and by virtue 
 thereof, the company may, without the consent of the owners, 
 take the land shown on such (map or pian and book of refer- 
 
 ill :5 
 
Dominion and I'kovincial Railway Acts. U 
 
 ence) (i) as required for such purposes ; and tlic company, and 
 all persons who could not otherwise convey the same to the 
 company, shall have, with respect to any such land, all the 
 powers granted by (2) this Act to companies (3) and persons 
 who could not otherwise convey the same, with respect to lands 
 which may be taken without the consent of the owners thereof; 
 (and all the provisions of law at any time applicable to the 
 taking of land by the company and its valuation and the com- 
 pensation therefor shall apply to the lands mentioned in such 
 certificate). ( t) 
 
 R S O . ch. 170, sec. 49.— (I) "pl'^"'" (2) " sections 13 to 2 ) inclusivo 
 „f' (:) a.iaiiional, "corporations." (4) suhstituto '< and the cmictiw.'nts am 
 provisions of the i^aid sections, except such as refer to the map or plan ami 
 book of reference tlierein mentioned, or as hmit the extent of land to be 
 taken shall api.lv ami are hereby extended to the i,'roun.l mentioneil in the 
 certillcate of the 'Commissioner of Public Works, and to all the pr.Keedm^s 
 c.inr.ecte.l with or consequent upon the acquiring or taking of such )r,-ouivl or 
 any part thereof, with or without the consent of the proprietors ; and il at 
 "any time thereafter the company do not require the whole or any portion of 
 the' land aciuiird under this Act for railway puri.oses, then such land as is 
 not so recpiired shall be sold by auction after thirty days' notice thereof in 
 any (local) ('() newspaiicr." . , <- , ■ ., r 
 
 R. S. i)., Art. 5167. Same as Ontario, excepting (2) '• subsection 13 ot 
 
 thisseciiui,'' ('0 omitted. 
 
 U S N S ch. 53, sec. 12. SameasOntario,e.xcepting (2) "the sections 
 of this chapter' headed ' l.ands and their valuation.' " (a) neu'spiper pub- 
 lished neare>t to tlie lands " 
 
 \Vi The comi)any, either for the purpose of constructing or lji^js ^ay be 
 repairing us railway, or for the purpose of carrying out the re- acquir^^^^^^^^^ 
 nuiremcnls of the Railway Committee, or m the exercise of the j,^ ,.gpj^jring 
 powers conferred upon it by the Railway Committee, may enter railway, 
 upon any land which is not more than two hundred yards 
 distant from the centre of the located line of the railway, and 
 may occupy the said land as long as is necessary for the pur- 
 poses aforesaid ; and all the provisions of law at any time ap- 
 plicable to the taking of land by the company, and its valuation, 
 and the compensation therefor, shall apply to the case of any land 
 so required ; but before entering upon any land for the purposes Deposit in 
 aforesaid, the company shall, in case the consent of the owner ^"^^ case, 
 is not obtained, pay into the office of one of the superior courts 
 for the Province in wnich the land is situated, such sum, with 
 interest thereon for six months, as is, after two clear days' 
 notice to the owner of the land, or to the person empowered to 
 
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 Tower to take 
 materials for 
 construction. 
 
 Notice in'case 
 of arbitration. 
 
 Power to 
 make sidings, 
 conduits, etc. 
 
 Maintenance 
 and repair of 
 railway. 
 
 lii 'I'liK Railway Law ok Canada. 
 
 convey tlic same, or interested therein, fixed by a judge of any 
 one of such superior courts. 
 
 113. Whenever stone, gravel, earth, sand or water is re- 
 quired for the construction or maintenance of any railway or any 
 part thereof, tlic company may, if it cannot agree with the owner 
 of the land on which the same are situated, for tlic i)urchase 
 thereof, cause a land surveyor, duly licensed to act as such (in the 
 Province, district or county, or an engineer) (a) to malce a map 
 and description of tlie property so required, and it shall serve a 
 copy thereof, with its notice of arbitration as in the case of 
 acquiring the roadway ; and all the provisions of this Act (respect- 
 ing expropriation of lands) (i) shall apply to the subject matter 
 of this section, and to obtaining materials as aforesaid ; and 
 such proceedings may be had by the company, either for the 
 right to the fee simple in the land from which the material is 
 taken, or for the right to take material for any time it thinks 
 necessary, — and the notice of arbitration, if arbitration is re- 
 sorted to, shall state the interest and powers required. 
 
 R. S. Q., Art. 5164 (34). — (I) "as to the service of the said notice of 
 arbitralioii, compensation, deeds of sale, payment of money into Court, the 
 right to sell, and the right to convey, and the persons from whom lands may 
 1)L' lakcn, or who may sell." 
 
 R. S. N. S.. ch. S3, sec. 9 (33). Same as Ontario, excepting (a) omitted, 
 
 114. Wiienever any stone, gravel, earth, sand or water is so 
 taken at a distance from the line of the railway, the company 
 may lay down the u'xessary sidings, water pipes or conduits 
 and tracks, over or through any lands intervening between the 
 railway and the land on which such material or water is found, 
 whatever is the distance, and all the provisions of this Act, 
 except such as relate to the filing of ])lans and publication of 
 notice, shall apply, and the powers thereby granted may be used 
 and exercised to obtain the riglu of way from the railway to the 
 land on which such materials are situated ; and such right may 
 be acquiied for a term of years, or permanently, as the company 
 thinks proper ; and the powers in this and the next preceding 
 section contained may, at all times, be exercised and used in all 
 respects, after the railway is constructed, for the purpose of re- 
 pairing and maintaining the railway. 
 
 R. S. Q., Art. S164 (35). 
 
 R. S. N. S.,ch. 53, sec. 9 (34). 
 
 1' i 
 
 
Dominion and Pkovim i.m. Railway Acts 
 
 liii 
 
 115. Whenever, for the purpose of procuring sufficient land if the whole 
 for stations or gravel pits, or for constructing, maintaining '•"^l^'^^;,"!."!"^!-'^"'^ 
 using the railway, any land may be taken under the comi)uls()ry chased with 
 provisions of this Act, and by purchasing the whole of any lot or a'lvantage. 
 parcel of land over which the railway is to run, or of which any 
 part may be taken under the said provisions, the company can 
 obtain the same at a more reasonable |)rice or to greater advan- 
 tage than by purchasing the roadway line only, or only such part 
 as aforesaid, the company may purchase, hold, use or enjoy the 
 whole of such lot or parcel, and also the right of way thereto, if 
 the same is separated from its railway, and may sell and convey 
 the same, or any part thereof, from time to time, a, it deems ex- 
 pedient ; but the compulsory provisions of this Act shall not Compulsory 
 apply to' the taking of any portion of such lot or parcel not F"^^J^«^°^_« "<" 
 necessary for the purposes aforesaid. 
 
 R. S. Q., Art. 5164 (36). 
 
 R. S. N. S., ch. S3, sec. 9 (35). 
 
 116. Every company (i) may, on and after the first day of Erection of 
 
 1 1 J «,r u^^r snow Icnccs. 
 
 November, in each year, enter into and upon any lands ot Her 
 
 JNIajesty, or into and upon the lands of any (2) person whomso- 
 ever, lying along the route or line of its railway, and may erect 
 and maintain snow fences thereon, subject to the payment of such 
 land damages, if any, as are thereafter established, in the manner 
 provided by law with respect to suci railway, to have been ac- 
 tually suffered ; but every snow fence so erected shall be removed And removal 
 on or before the first day of April then next following. 
 
 R S N. S.,ch. 53, sec. 16 (7). Same as Quebec, excepting (2) a<idi- 
 tional " subject to the juiisdiction of the Parliament of Canada ' and substi- 
 tute "Government ol' Canada " for " Government of ihis Provmce." 
 
 R S Q Art. 5171 (7). (!) "heretofore incorporated, or which here- 
 after may be incorporated, as well as the Government of this Province, with 
 respect to all railways constructed by or being the property or under the con 
 trol of the Province," (2) 'corporation or." 
 
 POWERS RESPECTING LOCATION OK LINE, DEVIATIONS AND 
 CHANGES DEKINED AND LIMITED. 
 
 117. No lateral deviation of more than one mile shall be what devia- 
 made from the located line of the railway or from the places j|°^^J^^^l ^^ 
 assigned thereto in the map or plan and book of reference, or pro- 
 • files, except in such instances as are provided for in t^e special 
 Act. 
 
 M 
 
 lit 
 
As to error in 
 name entered 
 in book. 
 
 Mines to be 
 protected. 
 
 liv Tin; Railway Law of (Canada. 
 
 R. .S, O., cli. 170, .sec. 10 (II). "No deviation of more tlian one mile 
 from tlie line of tlie railway or from the places assigned tliereto in the said 
 map or jilan anil book of reference, or plans or sections, siinll be made into, 
 throU{;h, across, under or over any part of the lands not shown in such map 
 or plan and l)ook of reference, or idans or sections, or williin one mile of the 
 said line and place, save in such instances as are luovided for in the special 
 Act." 
 
 R. S. (J., Art. 5163 (II). Same as Ontario. 
 
 N. H., 1S91, ch. iS, sec. 10 (11). Same as Ontario. 
 
 K. S, N. S., ch. 53, sec. S (li). Same .is Ontario. 
 
 118. Tlie milw.iy may he (made) (i) carried (or placed) (2) 
 across or upon the lands of any person on the locilcd line, or 
 williin the distance from such line as aforesaid, although the 
 name of such ])erson has not been entered in the book of refer- 
 ence, through error or any other cause, or although some other 
 person is erroneously mentioned as the owner of or entitled to 
 convey, or is interested in such lands. 
 
 R. S. O., ch. 170, sec. 10 (12), sec. g (4). (1) Omilled, (2) omiUcd. 
 R. S. Q., Art. 5163 (12), .\rt. 5132 (4). Same as Ontario. 
 N. IJ., lS9i,cli. iS, sec. 10 (12), sec. 9 (4). Same as Ontario. 
 R. S. N, S,, cji. 53, sec, 8 (12). Same as Ontario. 
 
 111). No company shall, without the authority of the Railway 
 Committee, locate the line of its i)roposed railway, or of any 
 branch thereof, so as to obstruct or interfere with or injuriously 
 affect the working of, or the access or adit to any mine then 
 open, or for 0])ening which ]jreparations are, at the lime of such 
 location, being lawfully and openly made. 
 
 R. S. O., ch. 170, sec. 21. The company shall not be entitled to any 
 mines of iron, slate, or other minerals under .avi;- 'and purchased by them, ex- 
 cept only such ])arts ihcroof as shall be necessary to be dug or carried away, 
 or used in the construction of the works, unless the same shall have been ex- 
 pressly ))urchase(l ; and all such mines, exce]itinjj as aforesaid, shall be 
 deemed to be excepted out of the conveyance of such lands, unless they shall 
 have been expressly named tiiereln and conveyed thereby. 
 
 22. If the owner, lessee, or occupier of any mines or minerals lying under 
 the railway or any of the works connected therewith or within the prescribed 
 distance, or, where no distance shall be prescribed, forty yards therefrom, be 
 desirous of working the same, such owner, lessee or occupier shall give to the 
 company notice in writing of his intention so to do thirty days before the com- 
 mencement of working, and upon the recei[)t of the notice it shall be lawful 
 for the company to cause the mines to be inspected by any person appointed 
 by them for the purpose, and if the company shew to the satisfaction of the 
 Commissioner of I'ublic Works that the working of the mines or minerals is 
 likely to damage the works of the raihv.iy, and if the company be willing to 
 make compensation for the mines or any part thereof to the owner, lessee or 
 occupier thereof, then he shall not work or get the same ; and if the company 
 and the owner, lessee or occupier do not .agree as to the amount of the com- 
 pensation, the same shall be settled as in other cases of disputed compensation 
 under this Act. 
 
 (if ' 
 
 
 t-'J 
 
mile 
 
 said 
 
 into, 
 
 map 
 
 of the 
 
 lecial 
 
 (2) 
 
 or 
 
 the 
 •cfer- 
 )thcr 
 ■d to 
 
 Dominion and Provincial Railway Acts. Iv 
 
 23. If before tlic expiration 1 if sucli thirty ilays llie company do iiol state 
 their willinj^ness to treat with the owner, lessee or occup'er for the payment 
 of the Compensation, it shall he lawful for him to work tlie said mints or any 
 part thereof for which the ct)mpany shall not have agreed to pay compensa- 
 tion, so that the same liedoiie in a manner proper ami necessary f(jr the hene- 
 ficial workinj; thereof, and accordini,' to the usual manner of workin;; such 
 mines in the district where the same shall he situate; and if any damajje or 
 obstruclion he occasioned to the railway or works by improper working; of 
 the mines, the same shail be foithwith repaired or removed, as the case may 
 reciuire, and the damage maile yood by the owner, les'^ee or occupier of the 
 mines or mineral>, and at his own ex|)ense ; and if the repair or removal be 
 not forthwith done, or if the company shall so think lit without waiting' for 
 the same to be done by (li-; owner, les-.ee or occupier, it shall bj lawful for 
 the company to execute liie same and recover from the owner, leasee or oc- 
 cujiier the ex])ense occasioned thereby by action in any Court of competent 
 jurisdiction. 
 
 24. If the Winking' of such mines under the railway, or works, or within 
 the above mentioned distance therefrom, be jirevented as aforesaid by reason 
 of ajipreheniled injury to the railway, it shillbe lawful for the respective 
 owners, lessees and occupiers of such mines, and whose mines ^hall extend so 
 as to lie on both sides of the railway, to cut and make such and so many air- 
 ways, headways, fjateways, or water levels throuf^h the mines, measures, or 
 strata, the working; wdiereof shall be so prevented, as may be requisite to en- 
 able them to ventilate, drain, and work their said mines ; but no such airway, 
 headway, fjat^way, or water level shall be cut or made without lir ;t jirocu.- 
 ing the conseni in writint; of the Commissioner of Public Woiks of the Pro- 
 vince ; nor shall the same l>e cut or made upon any jiart of the railway or 
 works, or so as to injure the same, or to impede the passage thereon. 
 
 25. The company shall, from time to time, jiay to the owner, lessee, or 
 o"cupier of any such mines extending so as to lie on both sides of the railway 
 all such .addiliimal exjienses and losses as shall be incurred by the owner, 
 lessee or occupier, by leason of the severance of the lands lying over such 
 mines by the railway, or of the continuous working of such mines being in- 
 terrupted as aforesaid, or by reason of the ^ame being worked in such manner 
 and under such rotrictions as not to prejudice or injure the railway, and for 
 any minerals not purchased by the company which cannot be olitained by 
 reason of making and maintaining the railway ; and if any dispute or (jues- 
 tion shall arise between the company and sueli owner, lessee, or occupier as 
 aforesaid, touching the amount of such losses or expenses, the same shall be 
 settled by arbitration under this Act. 
 
 26. For better ascertaining whether any such mines are being worked, or 
 have been worked, so as to damage the r.ulway or works, it shall be lawful 
 for the company, after giving twenty-four hours' notice in writing, to enter 
 uj)on any lands ihr.ugh or near which the railway passes wherein any such 
 mines are being woiked, or are so supposed to be, and to enter into and re- 
 turn from an;- such mines or the works connected tlierewith ; an<l for that 
 purpose ■'. sliall l)e lawful for them to make use of any apparatus or machinery 
 belonging to the owner, lessee or occupier of such mines, and to use all 
 necessary means for discovering the distance from the railway to the parts of 
 such mines which are being worked, or about so to be. 
 
 27. If the owner, lessee or occupier of any such mine shall refuse to allow 
 rny person a|ipointed by the company for that purjiose to enter into and in- 
 s])ect any such mines or works in manner aforesaid, every ]ierson so offending 
 shall, fur every such refusal, forfeit to tlie company a um not exceeding 
 $100. 
 
 iJrMJ^ 
 
 -«. .1' 
 
 M 
 
Ivl 
 
 'I'liK Railway Law oi' Canada. 
 
 28. If it iippcnr that any siiili mines have been worked coiitinry in the 
 provisions iif the iireccdini; seven sections, the eonii-iiny may, if tiiey lliinic 
 tit, ^ive notice to the owner, lessee or occiijiicr thereof to construct such 
 works, and to adopt such means as may he necessary or proper for rnalNing 
 safctlie laiiway an 1 i)reventiii^,' injury thereto; and ifafler such notice sucli 
 owner, lessee or occupier (h) not forthwith proceed to constiuct the works 
 necessary for maUinj,' safe the radway, llie company may themselves construct 
 such works ami recover tlie expenses thereof from the owner, lessee or 
 occupier by action in any Court of competent jurisiliction. 
 
 Change in I'^O. Any company, (iz) wliich desires at any ti 
 
 hneof railway (|,g location ^f its lipc vi lailway in any pariiciil 
 may be made. . , . ,. 
 
 purpose of lessening a ctirve, reducing a gradier 
 
 lo change 
 rt, for liie 
 .therwise 
 
 IjcnelUing sucii line of railway, or for any other purpose of 
 public advunia.m-', may (with the approval of the Railway ("om- 
 mittee) (1) make such change; and all the provisions of this .Act 
 shall refer as fully to the part of^such line of railway so at any 
 time changed or proposed to be changed, as to the original line ; 
 No change of but no company shall extend its line of railway beyond the 
 termmus. termini mentiontd in the special Act. 
 
 K. S. O., ch. 170, sec. 9 (19).— (l) Omitted. 
 R. S. (,)., Art. 5132 (18). Same as Ontario. 
 
 K. S. M., ch. 130, sec. 14,— (1;) " Heretofore or hereafter incorporated," 
 (I) omitted. J(I 
 
 N. H., 1891, ch. 18, sec. 9 (18). Sanie^as Ontario. 
 K. S. N. S., ch. S3, sec. 7 (18). Same as Ontario. 
 
 POWER TO CONSTRUCT HRANCH LINES Dt.FlNKD AND LIMITED. 
 
 Power to con- 131- Any company may, for the purpose of connecting any 
 struct branch city, town, village, manufactory or mine, or any quarry of stone 
 certain pur- °'" slate, or any well or spring, with the main line of the railway 
 poses. of the company, or with any branch thereof, or with any railway 
 
 worked or leased by the company, or for the purpose of giving 
 increased fiicilitics to business, or for the purpose of transport- 
 ing the products of any sucii manufactory, mine, quarry, well or 
 spring, build, make and construct, and work and use, sidings, 
 .switches or branch lines of railway, not exceeding in any one 
 Notice to be case six miles in length ; but such company shall not proceed to 
 given. locate or build any branch line of more than one-quarter of a 
 
 mile in length, under this section, until public notice has been 
 given, for six weeks, in some newspaper published in the (county 
 or) (i) counties through or in which such branch line is to be 
 made, that it is the intention of the company to apply to the 
 (Railway Committee) (2) to sanction the building of such branch 
 
 i\ I!' 
 
Dt).\iiNioN AM) Pkovinciai. Railwav Acts. 
 
 Ivii 
 
 vu\ 
 
 the 
 ink 
 i:ch 
 iiig 
 ulIi 
 .Iks 
 net 
 
 or 
 
 ige 
 le 
 
 ise 
 of 
 
 line, and tlic appioprialiun uf tlic necessary lands for tint pur- 
 pose, under llie compulsory powers vested in sucli company 
 by this Act, or by any other Act in its behalf; nor unless the Map ur i''**"! 
 company has, prior to the first pid)lication of sucli notice, lie-^'^' 
 posited in the registry ofhce of any city, county or pari of a 
 county, in which liie line or any part thereof is to he constructed, 
 a map or plan and book if reference indicating the location of 
 the line ; nor until the company has submitted the same to, and Appnival of 
 such map or plan and book of reference have been approved of j^'^''^^'!?' 
 by the (Railway Committee), (3) after the expiration of the said 
 notice ; and the order of the (Railway Committee) (4) ai)prov- Limitation 
 ing such map or i)Ian and book of reference shall limit the time," ""''■ 
 which shall not exceed two years from the date of such order, 
 within which the company may construct such branch line. 
 
 R. .S. Q., Alt. 5132, sec. 17. (l) Omitteil, (2) " Lieutenant-Governor in 
 Council," (3) •'Lieutenant-Governor in Council," (4) "Lieutenant- 
 Governor in Council." 
 
 K. S. O., ch. 170, sec. 9 (iS). " Any company (1/) may construct ti liranch 
 or branches not exceetling (six) (/>) miles in lenf^tli. from any terminus or 
 station of ilie railway of such company, whenever a liy-law saiicti(jiiin^' the 
 same has been passed by the municipal council of the municipality within 
 the limits of which the projwi-ed branch is situate (and no such brancii 
 shall, as to the quality and coni-truction of the road, be subject to niiy of the 
 reslnctions contained in the special .Vet of incorporation of the company or 
 in this Act, nor shall anything in either of the sai<l Acts authorize any com- 
 p.any to take for such branch any lands lielonging to any party without the 
 consent of such party first obtained). " (c) 
 
 R. S. M., ch. 130, sec. 13. Same as Ontario, excepting (n) additioral 
 "heretofore or hereafter incorporated," (/') "ten," (r) substitute "and for 
 the purpose of buildiiifj; said branch the con pany shall have the same rights, 
 powers anil authorities as if the same were part of the main line.'' 
 
 N. 1!., 1891, ch. 18, sec, 9 (S). " To make brancji railways, if lequtrcd, and 
 provided by the special Act, and to manage the same, and for that piir[)ose 
 to exercise all the powers, privileges and authoiities necessaiy therefor, in 
 as full and ample a manner as for the railway." 
 
 R. S. N. S., ch 55, sec. 7 (17). Same as Dominion, excepting after (i) 
 additional "and if no newspaper is published in such county or counties, 
 then in the nearest newspaper " (2) (3) (4) " Governor in-Council." 
 
 13!3. Every such company may, for any such purpose, ex- Powers as to 
 
 ercisc all the powers given to it with respect to its main line ^y"^'* Ij'anch 
 
 under this and the special Act ; and each and every provision 
 
 of such Acts which is applicable to such extension shall extend 
 
 and apply to every such siding, switch or branch line of railway. 
 
 R. S. Q., Art. 5132 (17). 
 
 R. S. N. S., ch. S3, sec. 7 (17). 
 
;i 
 
 Iviii 
 
 \ll 
 
 ■ 
 
 1 
 
 i 
 : 
 
 I 
 
 1 
 
 :t 
 
 TiiF, Railway Law of Canada. 
 
 PLANS AND SURVEYS. 
 
 Surveys and 
 levels. 
 
 Map or i)lan 
 and l)Ook of 
 reference. 
 
 May be in 
 sections, and 
 to be deposit. 
 ed. 
 
 To be ex- 
 amined and 
 certified and 
 copies de])os- 
 ited. 
 
 iMii. (i) Si'.rveys and levels shall be made and taken of the 
 lands through which the railway is to i)ass, together with a map 
 or i)lan and profile thereof, and of its course and dircit'on, and 
 of the lands intended to be passed over and taken thereof, as far 
 as then ascertained ; and a hook of reference for the railway 
 shall also be made, in which shall be set forth : — 
 
 (a) A general description of the said lands ; 
 
 (I)) The names of the owners and occupiers thereof, as far as 
 they can be ascertained ; and — 
 
 (c) Isverything necessary for the right understanding of such 
 maj) or plan (and profile). (2) 
 
 R. .S. ()., cli. 170, .sec. 10 (i). — (i) Additional," I'lans and surveys .simll 
 be made and corrected as follows,"' (2) omitted. 
 
 R. S. (J., an. 5163 (I). 
 
 R. S. N. S.. ell. 53, sec. S ( 1). Same as Ontario, excepting (2) " as may 
 be required by the Govcrnor-in-Council." 
 
 1*^-4. The map or plan and book of reference and profile 
 may be made of sections of liie raibvay, and shall be deposited 
 at the department. 
 
 l!i5. The map or plan and book of reference and profile 
 shill be e.xamined and certified by the Mini,ter or by the deputy, 
 and a dajju'caie thereof so e.xamined and certified shall be de- 
 posited at the department, and the company shall (deposit) (1) 
 copies of such inaj) or plan and book of reference and profile, or 
 of such parts thereof as relate to each (district or) (2) county 
 through which the railway is to pass, in the oflices of the re- 
 gistrars of deeds for such (districts or) (2) counties respectively. 
 
 R. S. O., ch. 170, sec. 10 (2). " A map or plan an<l book of reference 
 shall be examined and certified by the (Commissioner of Crown Lands or his 
 Deputies), (<?) 7,'/,o shall deposit copies thereof, in the offices of the clerks of 
 the peace in tile (districts or) (*) counties through which the railway passes, 
 and also in the office rif the (Trovincial Secretary), (c) and sliall also deliver 
 one copy thereof to the company.'' 
 
 R. S. Q., Art. 5163 (2). Same as Dominion, excepting (l) '■ furnish,'' (2) 
 omitted. 
 
 N. U., T.S91, ch. iS, sec. lo (2). Same as Ontario, exc opting (,?) '-Chief 
 Commissionf'' jf Public Works," (/') omitted, (c) "• Chief Commissioner 
 of Public Works." 
 
 R. S. N. S., ch. 53, sec. 8 (2). Same as Dominion, excejiting '• Commis- 
 sioner of Public Worlis or his ,:eputy," also '• office of the clerk of the muni- 
 cipalities." 
 
 
Dominion and Provinciai, Rmlwav Acts. 
 
 lix 
 
 the 
 laj) 
 nd 
 far 
 ay 
 
 as 
 
 zh 
 ill 
 
 le 
 d 
 
 e 
 
 ) 
 r 
 
 r 
 
 ij Q M ell i-o sec. K. "The Company shall aeposit with the 
 aisUict\^uUfa;- .feach land tides district, 'through or in which Its ra.l- 
 va i' intci uled to be built, plans of the ughl of way and ^tat.on ,nmmls o 
 r-., ,n r tenant to the railuav. so far as the same may be .n such <h^inct, an 
 shoS he area taken from each quarter section, parish lot or c lier pa.cel 
 onrfwhicl. plans n.ust be certified as required by " Ihe Real l"ropert> 
 
 l^ii Any person may resort to such copies, and make "Access to 
 tracts therefrom or copies thereof, as occasion requires, paying 
 to the (registrar of deeds) (i) at the rate of ten cents for every 
 
 hundred words. (2) 
 
 t. < n rh i-o sec 10 f^). (I) "Provincial Secretary or Clerks of 
 
 tJnv;^"'' 2 '^ia^i;;na° ^'' Any person ^elin, a^^rU-e.! by tl,e p... 
 
 lip tin, of the line of railway mav, within (ten) {n ) days aftei the 
 
 L"^: i of " ni ' M- "lan and bool of reference aforesaid in the ofuce o 
 
 r ''e k o the' I'eace of the (.listrict or) (/-) county where he lands a e 
 
 ituued the location throu-h whi:h is complau>ed of, apply t.. the Lie - 
 
 Uu.itLc , ine . ob ections to the location of the 
 
 P ff^T.n,^.<e therefor exists, app<.int a disinterested enf;,neer, who shall 
 :"She.\" id W-a Lne.'ind after hearin, the P-ties. he shall con- 
 fmn a er the same us may be consistent with the just nghts of a 1 parties 
 .nlofUe lublic. The determination of the engu-.e.M- approved by t.ie 
 Leulen -Co ernor in Council shall, within (ten) (.) days after his ap- 
 nointnen be made and certified, ami such certificate shall be filed in 1 e 
 LrficcT.f the Clerk of the I'eace for the (district or) (,/) county where the 
 
 ^'r""mS engineer shall be entitled ,0 reasonable lees fbr eaelMhy 
 employed in connection with the said examination and -"' <vt"p- ''" -. ' 
 hU Tcinl expenses inu.red therein, and the amount shall in the lu>l m- 
 s we e paid by the person .applyin., for his appointment; InU ifthepro- 
 S loute is alfered or chan;,ed by Uie engineer, the railway company shall 
 refund to the ai)p!icant the amount so paid.' 
 
 ,, e n \,t riOi (T.,. Same as Idiiunion. 
 
 N l/'''.S9i: ch/ '8, sec. .u (3). Same as Ontario, exce ting (.) 
 « Thirty'" (!') omitted, {c) " Fou.teen," (./) omitted. 
 
 R S N. S., ch. 53. sec S (4). Same as Dominuui, exeeptmg ( I) " cleiks 
 of llie municipal' ties. 
 
 Vil. 
 
 Sucn map or plan and hook of reiercnce and Mrohle ^oCeM 
 
 cf rtified or a true copy thereof (or an extract therefrom, ( ' ) '■ci- ^J .,^,,^^^, 
 tified by' the (Minister or his deputy), (2) or by any registrar of 
 deeds, shall be evidence in any court of justice or elsewhere. 
 
 U S O ch 170, sec. 10(4). "Til'-' triplicates of the map or plan and 
 , V r, r'., cesoceitihed or a true copy thereof certified by ihe (I'lovm- 
 S S^LI^IXm -'-y '^ '^''-^-f ''- '^^-' ^''^^' '"^ goodevidenee in any 
 C.^,.t^.f^JustK:e - ^;-;--;,^ ^, „,„^,„i„„, ...epting (.) omitted. ,3) 
 
 " S:";dSw c;' '8;'s:cmM:;'' same as Ontario, excepting (.) " Chief 
 
 ''°K"sTs:"ch..3.sec.8(4). Same as Quebec, except >' cleiks of the 
 niMP.cipalities" instead of •' registrar of deeds " 
 
 ill 
 
 : H 
 
 i'i 
 
 fti 
 
 
 1 Kr '■ 
 
 ■\i 
 
ri:'i 
 
 Errors, liow 
 a-niediecl. 
 
 Certificate re- 
 lating there- 
 to. 
 
 Ix 'rni'. Raiiwav Law of Canada. 
 
 1^8. Any omission, mis-statenieiit or erroneous descriptiun 
 of such lands, or of the owners or occupiers thereof, in any map 
 or plan or l)ook of reference, may, after ten days' notice lias been 
 given to the owners (i) of such lands, (2) be corrected by two 
 justices, on application made to them for that purpose ; antl if il 
 appears to them that such omission, mis-statement or erroneous 
 descriptior arose from mistake, the justices shall certify the same 
 accordingly. 
 
 K. S. O., ch. 170, sec. 10 (5). 
 
 R.S. Q, Art. 516.U5). 
 
 N. 15 , 1891, ch. 18, sec. lo (5) 
 
 K. S. N. S., ch. 53, sec. 8 (5) as amended by 51 Vic, ch. 29. Same as 
 Dominion excepting (I) '' or persons named or represented on or in said plan, 
 map or book of reference as the owners," (2) "or after notice given by 
 publication in at least three successive issues in a newspaper published in the 
 county where such lands lie." 
 
 139. The certificate shall state the i)articulars of any such 
 omission, and the manner thereof, and shall be deposited with 
 the (registrars of deeds) (1) of the (districts or) (<?) counties, 
 respectively, in which sucii lands are situate, and shall be kept 
 by them together with the other documents to which it relates, 
 and thereupon such map or plan, or book of reference, shall be 
 deemed to be corrected according to such certificate ; and the 
 company may make the railway in accordance with tlie certifi- 
 cate. 
 
 K. S. O., ch. 170, >ec. 10 (6).— (I) " Clerks of the Peace." 
 U. S. Q., Art. 5163 (6\ —la) Omitted. 
 
 N. H., 1891, ch. 18, sec. 10 (6).— (1) "Clerks of the Peace," (,i) omitted. 
 K. S. N. S., ch. S3, sec. S (6) .Same as Dominion, excepting (i) '• clerks 
 of the municipality." 
 
 Alterations 130. If any alterations from the original plan or survey are 
 
 from ougma jp(g,-,(jpf] {„ |jg niade in the line or course of the railway, a Cmai) 
 or plan and profile) (i) of such alterations (2) on the same scale 
 and containing the same particulars ns the original (map or plan 
 and profile) (3) shall be deposited in the same manner as the 
 original map or plan (and i)rofile) (4), and copies of or (xtracts 
 from such (map or plan and profile) (5), so far as they relate to 
 the several districts or counties in or through whicli such altera- 
 tions are (intended) (6) to be made, shall be deposited with the 
 (registrars of deeds) (7) of such districts and counties. 
 
 U.S. 0.,ch. 170, sec. 10(7). — (1) Substitute "plan and section in tripli- 
 cate," (2) " as have been approved by the Legislature," (3) "' plan and sur- 
 
 survey. 
 
Dominion and Provincial Railway Acts. Ixi 
 
 vey," (4) omitted, (5) "plan or section," (6) " authorized," (7) " Clerks of 
 
 R. S. Q., Art. 5163 (7). Same as Ontario, excepting (I) omitting " Iripli- 
 
 ''%'. B , 1891, rh. 18, sec. 10 (7). S.imeas Ontario, excepting (2) '•• Gover- 
 
 "°r"s N."s.'ch. 53, sec. 8 (7). Same as Ontario, excepting (i) omitting 
 ' triplicate, (2) " Governor-in-Coimcil," (7) " clerks of the municipalities. 
 
 i:il. Untilsiichoiigin.il map or plan and book of reference WoifenoUo 
 (and profile) (i) or the (map; (2) or plan and profile of the ^;^.P'°;;^^f, ^ 
 alterations have been so deposited, the construction of .iie rail- map, etc are 
 way, or of the part thereof affected by the alterations, as the case 'leposite. . 
 may be, shall not be proceeded with. 
 
 R. S. 0., ch. 170, sec. 10 (8) —(I) Omitted, (2) omitted. 
 
 R. S. Q , Art. 5163 (8). Same as Ontario. 
 
 N. B., 189I, ch. 18, sec. 10 (8). 
 
 R. S. N. S., ch. 53, sec. 8 (8). Same as Ontario. 
 
 1»3. The (registrars of deeds) (1) shall iLceive and retain Custody of 
 ti-.e copies of the original (maps or plans and books of 'cference ^°|j'^'^'J.y ^^ 
 ;nid profiles) (2) and copies of the (maps) (3) or plans and pro- deeds, 
 files of alterations, and extracts thereof respectively, and shall 
 permit all persons interested to inspect any of tlie documents 
 aforesaid, and to make copies of and extracts from the same ; 
 and every registrar of deeds who refuses so 10 do is liable, on 
 summary conviction, for each offence to a penalty of four 
 dollars. 
 
 R. S.O.,ch. 170, sec. 10 (9) .-(1) "Clerks of the Peace," (2) "plans and 
 
 ''"r%\ Q?,*An!"5"63 (9). Same as Dominion Act, excepting (2) and (3) 
 
 ''"x'! B.,^Srch. 18, sec. 10 (9). Same as Ontario, excelling penalty, 
 
 "''r.''s'iV S., ch. S3, sec. 8 (9). Same as Ontario, excepting (I) " clerks 
 of the municipality." 
 
 1:5:} The copies of the m:\ps or plans and books of reference Copies cer- 
 (and profiles) (i) or of any alterations or corrections thereof ortined Ivy ^^ 
 extracts therefrom, certified by the (registrar of deeds) (2) shall ,,g g^i^gn^.^. 
 be received in all courts of justice and elsewhere as evidence of 
 tlie contents thereof, and the (registrar of deeds) n) s'l'i". ^^''len 
 required so to do, give such certificate to any per.^<Ki mterested. 
 
 (4) 
 
 H. S. C, ch. 170, sec. 10 (lo).-(i) OmiUed, (2) " Clerk of tl.c Peace," (3) 
 '•- Clerk of the Peace," (4) " when required." 
 
 iil 
 
IXll 
 
 The Railway Law ok Canada. 
 
 Map of the 
 completed 
 railway to be 
 filed at the 
 department. 
 
 Penalty for 
 neglect. 
 
 Scale and 
 paper. 
 
 Conveyance 
 to the com- 
 pany. 
 
 R. S. Q , Art. 5163 (10). Same as Dominion, excepting (I) omitted, (4) 
 " when required.'' 
 
 N. li., 1891, ch. 18, sec. 10 (to). Same as Ontario. 
 
 K. S. N. S., ch. S3, sec. 8 (10). Same as Ontario, excepting (2) (3) 
 " clerk of the municipality." 
 
 i;i4. A map (or plan) (i) and profile of tlie coni])leted rail- 
 way and of the land taken or obtained for tlie use tliereof, shall, 
 witliin (six months) (2) after completion of tlie imdertaking, be 
 made and filed at the (department), (3) and maps or plans of the 
 parts tliereof, located in different (districts and) (4) comities 
 shall be filed in the registry offices for the (districts and comi- 
 ties) (5) in which such parts are resi)ectively situate (and every 
 comi)any which fails or neglects to file such maps or ])lans and 
 profiles at the department, or to file such maps or plans in sucli 
 registry offices within the said period, sliail incur a penally of 
 two hundred dollars, and a Hke penalty for each and every 
 month during which such failure or neglect continues). (6) 
 
 R. S. O., ch. 170, sec. 10 (13). — (1) Omitted, (2) " a reasonable time," (3) 
 " office of tlie Commissioner of Public Works," (4) omitted, (5) "registry 
 divisions," (6) no provision for jienalty. 
 
 R. S. ()., An. 5163 (13).— (I) Omitled, (3) " Department of Public Woiks,'' 
 
 (4) omitted. 
 
 N.15., iSgi, ch. iS, sec. 10 (13). Same as Ontario, excepting (4) omitted, 
 
 (5) " counties." 
 
 R. S,N. S.,ch. 53, sec. 8 (13). Same as Dominion, excepting (3) 
 " office of the Commissioner of Public Works. 
 
 135. Every map (or plan and profile) (i) shall be drawn on 
 such a scale and on such paper as are, from time to time, desig- 
 nated for that purpose by the (Minister), (2) and shall be certified 
 and signed by the president or engineer of the company. 
 
 R. S. O., ch. 170, sec. 10 (14). — (i) Omitted, (2) " Commissioner of Public 
 Woiks." 
 
 R. S. Q., Art. 5163 (14). Same as Ontario. 
 
 N. 15., 1891, ch. 18, sec. 10 (14). Same as Ontario. 
 
 R. S. N. S., ch. 53, sec. 8 (14). Same as Ontario. 
 
 LANDS AND THEIR VALUATION. 
 
 13G. AH (i) tenants in tail or for life (i^rer'is dc substitution'), 
 (2) guardians (curators), (3) executors, administrators (trustees, 
 and all persons whomsoever), (4) not only for and on behalf of 
 themselves, their heirs and successors, but also for and on behalf 
 of those whom they represent, whether infants, issue unborn, 
 lunatics, x^xoXs, feincs-c overt , or other persons, seized, possessed 
 
 IS 
 
 5^) 
 
Dominion and Provincial Railway Acts. Ixiii 
 
 of, or interested in any lanis, may contract and sell and convey 
 to the company all or any part thereof. 
 
 K S 0,ch. 170, sen. 13 (i).-(i) Add " corpo.alions and persons what- 
 soever •• (2) omitted, (3) oniitted, (4) " and all other trustees whatsoever. 
 
 R S () Art. S164 (3). Same as Ontario, substitutiiit' '• usufruciianes 
 lnsti\iUes''Vor " tenants in tail or for life," and "tutors" for "t;uardians, 
 also adding "curators." . 
 
 N H., f60i,ch. 18, sec. 13. Same as Ontario, omitting '» t"''; 
 
 R. S. M , ch. 130, sec. 17. Same as Ontario, with the addition of 
 
 ' ' cuvn.tor*^. '' n 
 
 R. S. N. S., ch. 53, sec. 9 (3). Sameas N. H., a<ldinK " cuiat.,rs. 
 
 1'SI In all cases in which such persons have no light in law On 
 . . ,. ._. ^f.i.„ „„:,i i.,.,,i c-,,,.), ''*-''l 
 
 [)f judge 
 
 i:V<. inaiicasesm wniL... .u... 1-'— ' ■ "--^ , required in 
 
 to sell or convey the rights of properly of the said land, ^^^^^^^^am ax^es. 
 persons shall obtain from a judge, (i) after due notice to the 
 persons interested, the right to sell the said land ; and the s.ud 
 judge shall give suli orders as are necessary to secure the n- 
 vesunent of the purchase money in such a manner as he deems 
 necessary, in accordance "vith the law of the Province, to secure 
 the interests 0. the owner of tlie said land. 
 
 R S O ch. 170, sec. 18, " Where more persons than one are proprie- 
 tors of anv land' as joint tenants or tenants in common, any cntract or agree- 
 ment made in good faitl, wiih any person being proprietor or witii any person 
 Sogetber proprietors of one-lhird or more of such lan.l, as to the amount 
 o ompen ation for the same, or for any damages thereto, shall be binding as 
 between the remaining proiuietor or proprieto, s as joint tenants or ten. ts .1 
 comnion ; and the proprietor or proprietors who have so agreed may de hve. 
 possession of such land, or empower the entry upon the same, as tbee.ase may 
 
 ^^'^R. S. Q., Ar:. 5iC)4 (3). Sameas Dominion, excepting (i)"oflbe 
 
 Superior Court." 
 
 R S M-. ch. 130, tec. 20. Same as Ontario. 
 
 R.'s.'n. S., ch S3, sec. 9 (3). Same as Dominion, excepting com- 
 petent " before " Judge." 
 
 1*58 The powers (herein) (i) conferred upon rectors in pos Limitation of 
 .ession'of glebe lands (ui the Province of Ontario), (2) ecclesias- l-wej^^i.> cei- 
 tical and other corporations, trustees of land for church or school 
 purposes. (3) executors appointed by wills under which they are 
 not invested with any power over the real property of the testa- 
 tor administrators of persons dying intestate, but at their death 
 ceized of real properly, shall only extend and be exercised with 
 respect to any of such lands actually required for the use and 
 occupation of a company. 
 
 R.S.O.,ch. 170, sec. 13 (2).-(i) "by the preceding section," (2) 
 
 °t"s.'(S^Art°.'' sit '(4). S^-e as Ontario, omitting " Rectors in posses- 
 sicn of glebe lands." 
 
 t.» 
 
 II 
 
Ixiv 
 
 The Railway Law ok Canada. 
 
 !::i 
 
 'J' 
 
 ill 
 
 1' ■ 
 
 ill! 
 
 ; •'', 
 
 ill 
 
 Respoiisal)ili' 
 ty as to pur- 
 chase money. 
 
 K S.M.,cli. ijo, sec. 17. Same as Dominion, excepting (2) omitted, 
 (3) " 01 tiihcr.'' 
 
 N. r... 1S91, oil. 18, sec. 13 {2). Same as Ontario. 
 K. S. N- S., ch. S3, sec. 9 (4). Same as Ontario. 
 
 Effect of sale IJJl). .Any contract, agreement, sale, conveyance and as- 
 under preced- gj|,.^„j.^> j.q ,^,3^]^. liereuntler shall he valid and effecttial in law, 
 mg sections. , , ,, . , 
 
 to 111! intents and i)ur])oses wnatsoever, and shall vest n\ the 
 
 company receiving the same, the fee simple in the lands in such 
 
 deed desciihed, freed and discharged from all trusts, restrictions 
 
 Seller indem-and limitations whatsoever; and the ])erson (i) so conveying is 
 
 Iiereby indemnified for what he (2) does by virtue of or in 
 
 pursuance of this Act. 
 
 R. S. O., cli. 170, sec. 14. — (I)" or corporation," (2) " or it." 
 R. S. Q., Art. 5164 (5). Same as Ontario. 
 R. S. M., cli. 130, sec. 18. Same as Ontario. 
 N. U., 1891, ch. 18, sec. 14. Same as Ontario. 
 R. S. N. S., cli. 53, sec. 9 (5). Same as Ontario. 
 
 140. The company shall not be responsible for the disposi- 
 tion of any purchase money for lands taken by it for its pur- 
 poses, if paid to the owner of the land or into court for his 
 benefit, (i) 
 
 R. S. O., ch. 170, sec. 15. — (l) " as liereinafter provided." 
 K. S. Q., Art. 5164 (6). Same as Ontario. 
 
 R. S. M., cl). 130, sec. 18. Same as Dominion, excepting (i) "aspro- 
 vided by tiie Manitoba Expropriation Act." 
 
 N. 15. , 1891, cli. 18, sec. 15. Same as Ontario. 
 R. S. N, .S., ch. 53, sec. 9 (6). Same as Ontario. 
 
 Effect of con- 141. Any contract or agreement made by any person 
 befoi-e'denosit '^nihorized by this Act to convey lands, and made before the 
 of map, etc. deposit of the map or plan and book of reference, and before 
 the setting out and ascertaining of the lands required for the 
 railway, shall be binding at the price agreed upon for the same 
 lands, if they are afterwards so set out and ascertained with- 
 in one year from the date of the contract or agreement, and 
 although such land has, in the meantiiue, become the property 
 of a third, person ; and possession of the land may be taken and 
 the agreement and price may be dealt with as if such price had 
 been fixed by an award of arbitrators, as hereinafter provided, 
 and the agreement shall be in the place of an award. 
 
 R. S. O., ch. 170, sec. 16. 
 R. S. Q., Art. 5164 (7). 
 N. 15., 1891, ch. 18, sec. 16. 
 R. S. K. S., ch. 53, .sec. 9(7). 
 
 m 
 
Dominion and Provincial Railway Acrs. Ixv 
 
 143. All (i) persons who cannot, in common course of law, ;;;^y^'[^^;';^^^^j 
 sell or alienate any lands so set out and ascertained, shall agree ^,0^ i„ cer- 
 upon a fixed annual rent as an equivalent, and not upon a tain cases. 
 principal sum, to be paid for the lands ; and if the amount of 
 the rent is not fixed by voluntary agreement or compromise, it 
 shall be fixed, and all proceedings sliall be regulated in the 
 manner herein prescribed. (2) 
 
 R S.O.,ch. i7o,sec. 17.— (I) "coipoialionsor." 
 R ^ O Alt. 'S164 (8). Same as Ontario. ,,,.,., 
 
 R ?• M ch. I'so.tec/icj. Same as Ontario, excepting (2) add " by the 
 Manitoba Expropriation: Act, ^ fov dcteimininR the compensation to l>e 
 allowed for land expropriated." 
 
 N 15. , 1891, ch. 18, sec. 17. Same as Ontario. 
 K. S. N. S.,ch. 53, sec. 9 (8). Same as Ontario. 
 
 143. For the payment of such annual rent and every other ^°^^'' 
 annual rent agreed upon or ascertained, and to be paid for the the,,,„f. 
 mirchascofany lands, or for any pait of the purchase money 
 of any lands, which the vendor agrees to leave unpaid, the rail 
 way and the tolls thereon shall be liable and chargeable m pre 
 ference to all other claims and demands thereon whatsoever 
 (except as to the charges created by section ninety-four of this 
 Act) (i) upon the deed creating such charge and (liability) (2) 
 being duly registered in the registry office of the proper district, 
 county or registration division. 
 
 V S O ch i-o sec 17. — (i) Omitted. 
 
 K S Q.', Art. 5i64 (9). Same as Ontario, excepting (2) " mortgage. 
 
 r' S.M^.lch. 130, sec. ly. Same as Ontario. 
 
 N. 1! ,1891. ch. 18, sec. '7- ^ ^ ^ . 
 
 R. S.N. S., ch. S3, sec. 9 (9)- Same as Ontario. 
 
 144. After the expiration of (ten days) (0 f™m die deposit Aft^^r ten Jys 
 of the map or plan and book of reference (in the oftice of the ^j,pii,^tion to 
 registrar of deeds), (a) and after notice thereof has been given owner, 
 intat least one newspaper, if there is any, published in each of 
 tiie (districts and) (2) counties through which the railway is 
 intended to pass, (3) application may be made to the owners of 
 lands or to persons empowered to convey lands, or interested 
 in lands which may suffer damage from the taking of materials or 
 the exercise of any of the powers granted for the railway ; and, 
 thereupon, agreements and contracts may be made with such 
 persons, touching the said lands or the compensation to be paid 
 for the same, or for the damages or as to the mode in which 
 
 i :* 
 
t 
 
 :;/ 
 
 1 i' 
 
 ji',!: 
 
 I If 
 
 111 
 
 1 i 
 
 Ixvi 
 
 The Railway Law ok Canada. 
 
 Arbitration 
 in default of 
 agreenicnl. 
 
 Deposit to 1)0 
 
 general 
 
 notice. 
 
 Notice to the 
 party and 
 what it nhall 
 contain. 
 
 Certificate of 
 surveyor and 
 what it shall 
 state. 
 
 sucli ( ompensalion shall be ascertained, as seems expedient to 
 both ])arliis ; and in case of disagreement between them, or any 
 uf thorn, all questions wiiich may arise between them shall be 
 nettled as (4) hereinafter provided. 
 
 K. S. O , cli. 170, sec. ig. — (i) " one month," Oi) oniitt<'d. 
 
 K. S. (.)., All. 5164 (II).— (1) " one month, " (2) omitted, (a) oniiltt'il. 
 
 R. .S. M., ch. 131J, sfc. 21. Snnic as I)()minion from (3) to (4), all 
 prior to (;^) omitted. After (4) siibstilute " in the' Manitoha lOxpropriation 
 Act ' mentioned." 
 
 X. U., iSgijCh. iS, sec. 18. Same as Quebec. 
 
 U. S. N. S., ch. 5.^, scr, 9 (10). Same as Dominion, excepting (i) " one 
 nioiith," (11) omitted. 
 
 1-45. The deposit of a map or plan and book of reference, 
 and the notice of such deposit, shall be deemed a general notice 
 to all the parties, (i) of the lands which will be required for 
 the railway and works (and the date of such deposit shall be 
 the date with reference to wliich such (-ompensation or damages 
 shall be ascertained). (2) 
 
 U. S. O., ch. 170, .'icc. 19 (2). — (i) " aforesaid," (2) omitted. 
 
 K. S. (,)., Art. 5164 (12).— (2) Omitted. 
 
 N. \i., 1S91, ch. iS, sec, 19. Same as Dominion, excepting O) " afore- 
 said." 
 
 K. S. N. S.. cii. 53, sec. 9 (11). Same as Ontario, excepting " aforesaid '' 
 omitted. 
 
 14:(}. The notice served upon the party shall contain : — 
 
 ((/) A description of ilie lands to be taken, or of the powers 
 intended to be exercised with regard to any lands, and describ- 
 ing the lands ; 
 
 (/') A declaration of readiness to pay some certain sum or 
 rent, as the case may be, as compensation for such lands or for 
 such damages ; 
 
 (c) The name of a person to be appointed as the arbitrator 
 
 of the company, if its offer is not accepted. 
 
 R. S. O., ch. 170, sec. 20 (i) 
 R. S.Q., Art. 5164(13). 
 N. IJ., 1891, ch. 18, sec. 20. 
 R. S. N.S.,ch. S3, sec. 9(12). 
 
 147. Such notice shall be accompanied by the certificate of 
 a sworn surveyor (for the Province in which the lands are 
 situated or an engineer) (i) who is a disinterested person, and is 
 not the arbitrator named in the notice, which certificate shall 
 
 stale : — 
 
 ! nis; 
 
Dominion and Pkovinciai, Railway A(:T^ 
 
 Ixvii 
 
 {,r) That the land, it the notice relates to the taking oi" land, 
 shown on the said map or plan, is required for the railway, or is 
 within the limits of deviation hereby allowed ; 
 
 {l>) That he knov/s the land, or the amount of damage likely 
 to arise from the exercise of the powers ; and — 
 
 ((•) That the sum so offered is, in his opinion, a fair comi)en- 
 
 sati;.>n for the land and damage aforesaid. 
 
 K. S. 0.,ch. 170, sec. 20 (2). 
 
 R, .S. ()., Alt. 5164 (13), subsec. 3.— (0 OniiUcd. 
 
 N. I!., 1891, stc. 20(2;. Snnicas (.Quebec. 
 
 K. S. N. S., ch. 53, sec. 9 (12).— (I) uiuiUin- •' or an engineer." 
 
 148. If the oi)po.-,ite jjarly is absent from the district or Applicaiiun 
 county in which the lands lie, or is unknown, an api)licatioii for IijJ"^,g^:[i Jf ^^ 
 service by advertisement may be made to a judge. mcnt. 
 
 K..S. O., cli. 170, sec. 20 (3). If llie opposite party is absent from the 
 (district 01") (I) countv in which the hands lie, or is unknown, then upon 
 Tipplicatiun to .1 judi^e of (the County Court) (2) accompanied liy such 
 certificate as aforesaid, and by an affidavit of some officer of the company 
 that the opposiie party is so absent, or that afier diUgent enquiry the party 
 on whom such notice ought to be served cannot be ascertained, tlie judge 
 sliall order a notice as aforesaid, but without a certificate, to be inserted three 
 times in the course of one month in some newspaper, if there is any published 
 in the said (district or) county. (3). 
 
 K. S. Q., Art. 5104(14). .Same as Ontario, excepting (2) "Superior 
 Court residing in the district, or to any judge of the said Court exercising his 
 functions therein," (3) " and if there be no newspaper published^ therein, 
 then in a newspaper published in some adjacent district or county." 
 
 N 15., 1S91, ch. 18, sec. 20 (3). Same as Ontario, excepting (i) omitted. 
 
 R.' S. N. S., ch. 53, sec. 9 (13). Same as Ontario, excepting (2) -'Supreme 
 Court," (3) same as (Quebec." 
 
 IdtO. The application for service by adveitisement shall be certificate 
 
 :.ccompanied by such certificate as aforesaid, and by an ^''"''d^^vit ^"d^affidavit^^ 
 
 of some officer of the company, that the opposite party is so aj,piij,,^ion, 
 
 absent, or that, after diligent inquiry, the person on whom the 
 
 notice ought to be served cannot be ascertained ; and the 
 
 judge shall order a notice as aforesaid, but without such certi- Notice. 
 
 ficate, to be inserted three times in the course of one month, 
 
 in a newspaper published in the district or county, or if there is 
 
 no newspaper published therein, then in a newspaper published 
 
 in some adjacent district or county. 
 
 R. S. O.. ch. 170, sec. 20 (3). ) , » c 
 
 R. S. (,)„ Art. 5164 (14). [See notes to iJom. Act,si.c. 148. 
 
 N. b.', 1891, ch. iS, sec. 20 (3). J 
 R. S. N. S.,ch. 53, sec. 9(13). . 
 
TT 
 
 IS, 
 
 IXVIII 
 
 The Railway Law ok Canada. 
 
 ' i' 
 
 I I" 
 
 '1 
 
 
 I'aily not ac- 
 ccjiting offer 
 ami not ap- 
 pioinlinj; arbi- 
 tiator. 
 
 Appoiiitnunt 
 of arbitrator 
 by party and 
 of third arbi- 
 trator, 
 
 K. S. I)., (Ii. 170, stc. 20 (4). •• Wlierea fiidfjc of a County (or <lisirict) 
 
 (1) Court is inteu'stcd in lands taken or rciiuircd within the Cfjunly in wiiicli 
 he is judge, l)y any company, for railway iiiirposes, a Judge of the (High) 
 
 (2) Court shall, on applicalion of the conipnny, exercise in sucii case all llie 
 powers t;iven to a Judge of a County Couit by the i)ro\isions of liiis section 
 in cases in wliicli lie, such judge of a County Court, is not interested." 
 
 N. li., iSgtiCh, iM, sec. 20 (4J. Same as Ontaiio, excepting (i) omitted, 
 (2) *' Supreme." 
 
 K. S. ()., Alt. 5I('4 (I5>. '■ Whenever any such judge is interested in 
 any lands re(|uired by the company witiiin the disti'et in wliich he resides, or 
 in which he exercises his functions, or whenever there is no judge in such 
 district, any ju<lgi' of tiie Superior Court, residing or exercising his functions 
 in any adjoining district, who is not interested shall, on the apjilication of tlie 
 company, or of the ojiposite pniiy, exercise in sucli cases all the jiowers 
 given by this article to the lesident judge, or to any judge exercising hi 
 functions in the ilistrict in whicli llie required land.i are siiualed. ' 
 
 loO. If, within ten clays after llic service of sti. h notice, ur 
 within one inonlh after the Inst piiljlicalion thereof, (i) the 
 opposite party docs not give notice to liie company tiiat he 
 accepts the stun offered by it, or does not ^ive notice to it of the 
 name of a person whom he ai)i)oinls as arbitrator, the judge siiall, 
 on the application of the company, appoint a (jjcrson; (2) to be 
 sole aibitrator for determining the compensation to be jiaid as 
 aforesaid. 
 
 R.S. 0.,ci). 170, sec. 2i) (5). (I) "as aforesaid," (2) '• swijin sur- 
 veyor for Ontario." 
 
 R. S, (^) , i\rt. 5164 (16). Same as Dominion, excepting (2) '-sworn 
 provincial land surveyor." 
 
 N. 1)., iSyi, ch. 18, sec. 20 (5). Same as Ontario, excepting (2) " sworn 
 surveyor." 
 
 R. S. N. S., ch. 5 J, sec. 9 (14). Same as IJominion, excepting (2) "a 
 competent person, as the case may be" 
 
 151. If the opposite party, within tlie time aforesaid, gives 
 notice to the company of the name of his arbitrator, then tlie 
 two arbitrators shall jointly appoint a third, or if they cannot 
 agree upon a third, the judge (a) shall, on the application of the 
 party or the company, after notice of at least (six) (1) clear days 
 having been given to the other party, appoint a third abitrator. 
 
 R. S. O., ch. 170, sec. 20 (6). (i) " one." 
 
 R. S. (,)., Art. 5164 (17). {<!) " of the Superior Court," (i) " two." 
 
 N. 15., 1891, ch. IS, sec. 20 (6). (l) " two days." 
 
 R. S. N. S., ch. 53, sec. 9 (15), as amended by 58 Vic. ch. 12. Same as 
 Dominion, excepting («), "Commissioner of Public Works," (i) "two" 
 also additional. Ch. 37 of 52 Vic. (<;) " But in case the moneys p.ayable for 
 lands, for track and station pu;poses shall by any law, or under any by-law 
 of any municipality, be directed to be assessed upon the county in which the- 
 said lands lie, the said moneys so payable shall in the first instance be ascer- 
 
r 
 
 Dominion anp Provincial Railway Acts. 
 
 Ixix 
 
 ch 
 
 l>) 
 he 
 on 
 
 taiiiL'd, : lid tlio (laiu;i(;cs for sucli laiiil so takt'ii a|>]Maisc(l, in all caso^ liy llircc 
 nihilialcis, onu to lie appoiiilod by liie County Council of llic iminiciiiality in 
 wliicli the said laiuls lie, another hy the |ir(i|iiietor of the lands so taken, 
 anil the third hy the two arliitrators so chosen, or if they cnnncf a^jret' iijion a 
 third, then the Commissioner of I'uldic Works shall on llir aii]ilication of the 
 l)r<)|iiietor or council, or of the company, appoint an arbitrator to he a third 
 arbitrator ; and in case of the proprietor or County Council from any cause 
 whatever iieylectin;,' for six months from the taking; of such lands, or from the 
 ))assing of this Act, whichever shall last happm, to appoint an arbitiator in 
 writini,', and to lile such ap] oiiitnient with the Clerk of the municipality in 
 which the said lands lie, then the Commissioner of Public Works shall on the 
 application of the party, or of the County Council, appoint one aibilrator to 
 be side arbitr.Hor,'' (A) "When the said moneys and damat;es shall be so 
 ascertained and apjiraised, and shall have been assessed upon the County, the 
 same shall, after the time for colleelion of the said as-essment shall hu'.e 
 elapi^ed, be jiaid by the county treasurer directly to the jiarties entitled," (r) 
 " The cost (if such appraisement shall be borne in eijual pioportions by the 
 county and the jiroprictors." 
 
 l/i'i. '1 lie arbitrators, (i) or the sole arbitrator, as ihc case Arbitr.^tors to 
 may be, shall be sworn before a justice of the peace for the dis- ^'*^^°™" 
 trict or coiiiUy in wiiicli the lands lie, faithfully and iiiipariially 
 to perform the duties of their or his oftice, and shall proceed to'^'heir duties, 
 ascertain such compensation in such way as they or he, or a 
 majority of them, deem best (and the award of such arbitra- 
 tois, or of any two of them, or of the sole arbitrator, shall be 
 final and conclusive except as hereinafter i)rovided) ; (2) but no 
 such award shall be made, nor any official act be done by such 
 maiority, except at a meeting held al a time and ])lace of which 
 the other arbitrator has had at least (two) (3) clear days' notice, 
 or to which some meeting at which the third arbitrator was ])re- 
 sent had been adjourned ; and no notice to either of the parties 
 shall be necessary, hut each parly shall be held sufiiciently noti- 
 fied through the arbitrator appointed by him, or whose appoint- 
 ment he retjuired. 
 
 K. S. O., ch. 170, ^ee. 20 (7).— (1) " or any two of them," (2) omitted, 
 (3) •' one." 
 
 U.S. Q., Art. 5164 (18).— (i)''or two ol tliem," (2) omit "except 
 as hereinafter proviiled." 
 
 N. 1)., 1S91, eh. IS, sec. 20 (7). .Same as Ontario, omitting " ilislriot " 
 before "county." 
 
 K. S. N. S., ch. 5.5, sec. 9 (16). Same as (^^uebec. 
 
 153. The arbitiators, in deciding on such value or compen- Increased 
 sation (shall) (1) lake into consideration the increased value t'l'it malnliitr '^ 
 will be given to any lands (2) through or over which the railway lands to be 
 will pas?, by reason of the passage of the railway through or '^""*'^^'"^^'' 
 
w 
 
 w 
 
 it 
 
 
 1 
 
 i; 
 
 ■ 
 
 
 ixx 
 
 I'liK Railway I, aw ok ("anaha. 
 
 Costs, liy 
 whom pay- 
 Mv. 
 
 Wilnessei. 
 
 Evidence to 
 be taken down 
 in writing. 
 
 Transmission 
 of record. 
 
 over tlic same, or by icason of ilic coiiMlruclion of tlic railway, 
 anil sliall set off the increased value tlial will attach to the said 
 lands or grounds against ihe inconvenience, loss or damage thai 
 might be suffered or susiaiiied by reason (»f liie company taking 
 possession of or using the said lands as aforesaid. 
 
 K.S. O.cli. 170, sec. 20 (y I.— (1) " .lie nulliori/i'ii anil rcqiiiri'd to,"' 
 (2) " ur ^jroiiiids." 
 
 K. S, (J., Alt. 516.1 (l(j). S;ime as Oiitaiio. 
 
 N. H,, l>S(ji, til. iS, K'c. 20 (9). SaiiiL- as linininion, omiltint; " liy rtaf-un 
 of llic iias!-a;;e of the lailwav lliroiiyli or over the same.'' 
 
 H. S. N. S., ell. ^3. >ci\ ij (17). Slime as Oiitaiii). 
 
 liil. if (by an award of aibitr.itors made under this Act) 
 (i) the sum awarded exceeds the sum offered by liie company, 
 the costs of tlie arbitration shall be borne by tlic company; but 
 if otherwise, ihey shall be borne by the o]ii)ositc paity, and be 
 deducted fiom the comiJensalion ; and in either case the amount 
 of such costs, if not agreed upon, may I»e taxed by the judge. 
 
 (-') 
 
 K. .S. O., ch, 170, sec. 20 C8). — (i) " in any case wlieii' tliiee arbitrators 
 have hem appointed," (2) " aforesaid."' 
 
 R. S. <J., Art. 5164 (20). .Same as Ontario, t.sceptinfj (2) " upon a peti- 
 tion to that ct'fcct duly served upon the .i<lverse I'arty, at lea'-t two d.iys 
 beforehand, with a copy of the bill of costs in detail.'' 
 
 N. ]{., iSgr, ch. 18, sec. 20(8). .Same as Ontari >. 
 
 K. .'^. N. S. , cli. 53, sec. 9 (iS). S;i le as Ontar 
 
 155. The arbitrators, or a majoril .aem, or ilv ile 
 
 arbitrator (shall) (i) examine on oath i Icmn arfiimatiijn the 
 parties, or such witnesses as ajjpear bcl(<ie tht.i or iiim, and 
 shall auminister such oath or affirmation. 
 
 2. 1 he arbitrators shall take down the depositions of witnesses 
 in wriiii-g, and after making their award shall forthwith deliver 
 or transmit by registered letter, at the request of either party in 
 writing, the depositions, together with the exhibits referred to 
 therein, and all papers connected with the reference, except the 
 award (to the clerk of a su|)erior court in the province in which 
 the lands are situated, to be filed with the records of the said 
 court). (2) 
 
 K. S.O.,ch. 170, sec. 20 (10), (13). (I) "may," (2) substitute " to the 
 Clerk of Records and Writs of the t'hancery Division of the High Court, with 
 appropriate stamps, to be filed by the clerk with the records of the Couit." 
 
 R. S. Q., Art. 5164 (21). Same as Dominion, 1st part only, excepting 
 (I) " may in their discretion." 
 
 ■■^ijAiagiM»^lh>JltM 
 
Dominion anh I'koviM iai. Railway Ai:r<. Ixxi 
 
 N. IJ., I.S9,. cli. IS. .cc. 20 (lo). f 13) -(II " >"ay," li) "Clerk ..f Iht- 
 Cminty ( •0111 1 for llie C ouiily in wliicli the l.m.ls he, witli Uio usii,\l lt.■l•^, l<> 
 111' filed with the rccouls of the l''nnt." 
 
 K. S. N, S,, ch. 53, -eo. 9 (19). Same as <,Hiel.(e. excei-lmi; (I) ■ may. 
 
 l4l(>. (A majoiily of the atbitrulors. at il 
 
 ^ ' -^ .. 1 H X / \ i- I which .iwan 
 
 their appoimim-nl. 01 iIk' sole aihitr itoi-, ^liiH) (1) tix a da\ cm 
 
 rii>t meeting after lime within 
 which .iward 
 i^ to lie madoi 
 
 ,,!■ before which the award shall he made ; and if the same is not 
 made on or Inforo such day or some other day to which the 
 time for makin.i; it has been i.toloiiged, either by the consent of 
 the iKirties or i)y (resolution of the arbitrators) (j) then the sum 
 offered by the company, as aforesaid, shall be the compensation 
 to be pai<l by the com|'any. 
 
 U. S ().,eh. 170. sec. 20 (i4).-(l)SubstiliUe^"Tiie.|iul^;cby uliom a 
 third a.biliat..r or s.do avhitralor is apiK.intcd shall, at the same tune, (2) 
 •'the Older of the Indue (as it may be for reasonable cause shewn, on the- 
 application of Hich sole arbitrator, or of one of the arbitratois, after one clear 
 day's notice to the ( tliers)," 
 
 K. S. (J., Art. 5164 (22). Same as Dominion. 
 
 N.l!.,''f^<J'.';''- IS, bt;i:. 20 (l.O' Sameas Ontaiio. 
 
 K. S, .v. S , ch. 53, sec. 9 (2o)- Same as Dominion. 
 
 157. If the (sole) (1 ) aibitrator (,/) appointed I'y the judge, Vacancy in 
 or any (arl'il>'Vtor) lA) appointed by the (two arbitrators) (O J;;^;,;';;^^;"^ 
 dies before the award has' been made, or is dis(iualitied, or ,,^„, ,|iied. 
 refuses or fails to act within a reasonable time, then, in the case 
 of the sole arbitrator, {c) the judge, upon the application ot 
 either parly, (</) and upon being satisfied by ailidavii or other- 
 wise of s;ucii death, disqualification, refusal or failure, may ap- 
 point another arbitrator in the place of such (sole) (3) arbitrator ; 
 and (in the case of any arbitrator api)ointed by [one of] (,■) tiie 
 l)arties), (4) the company and party respectively may each 
 appoint an arbitrator in the place of (its or) (5) Iiis arbitrator so 
 deceased or not acting (and in the case of the third arbitrator 
 appointed by the two arbitrators, the provisions of section one 
 hundred and fifty-one shall apply), (6) but no lecommcnccment No recom- 
 or repetition of the pievious proceedings shall be required in™--^^"' 
 
 any case. 
 
 K. S.O.,ch. 170, tec. 2o(i5).-(i)OmHtcd, (2) •' p-irlics," (3) omitted, 
 (4) omitted, (5) omitted, (6) omitted. • , . ,< .1 „ • 1 
 
 K S Art C164 (23). Sameas D(.mini(m,e.vcei>lmt:((J) "or thethud 
 aibitrato.-' (>') '''arbitrators," (2) " pa, ties, or the third arbitrator ai-pomted 
 bv the two arbitratois," (<) " or in the case of the thud aibitrator appointed 
 hv the indue " ('/) "Pluvious notice of at least two clear days havmi; l)een t;iven 
 to the other party," 3) omitted, (-•) omitted, (6) substitute " and if Ihecom- 
 
 It 
 
m 
 
 "1 
 
 i 
 
 I 
 
 Ixxii 
 
 TiiK. Railway Law oi' Canada. 
 
 I i< 
 
 i 
 
 i 
 
 • \i I. 
 
 f 
 
 'lis 
 
 
 pany or the party refuse or neglect to appoint sucli arbitrator, on application 
 by the coni])any orthe ]iariy,:is the case maybe, previous nntice of atleastlwo 
 clear (lays having been ijiven to the other party, tlie judge being satisfied by 
 afTulavil or otherwise of sucli deatli, disqualilication, refusal or failure, or of 
 the neglect to replace such arbitrator, so deceased or not acting, shall apjioint 
 another arliitiator in his jilace, and in the case of a third arbitrator appointed 
 by the two arbitrators, the provisions of the seventeenth paragraph of this 
 article shall apply." 
 
 licle .shall apply." 
 
 N. 15., 1891, ch. 18, sec. 20 (15). Same as Ont.aria. 
 
 U, S. N. S.,ch. 53, sec. 9(21). Same as Dominion, 
 
 Comiiany 
 may desist on 
 payment of 
 costs, 
 
 New notice 
 may be given. 
 
 Valuator or 
 arbitrator not 
 disqualified 
 unless person- 
 ally interest- 
 ed. 
 
 , . ._, ,,.--, - .excepting (I) "the 
 
 official arbitrator." (2) " Commissioner of Pu'ilic Works, or any arbitrator 
 appointed by the jiarties, orthe third arbitrator ajipointed by the two arbitra- 
 tors." ((/) '• And in the case of the official arbitrator, the Commissioner of 
 Public \V(jrks, upon a like application, the judge or commissioner being 
 satisfied", etc. (1') omitted. (5) omitted. ■»(6) " the provisions of the sixteenth 
 subsection shall apply."' 
 
 158. In any case wliere the nofj|6c given improperly describes 
 the land or material intended lo'jBe taken, or if tlie conipany 
 decides not to take the land or mJBl-ial mentioned in the notice, 
 it may abandon the nmice and ;JB])roceedings tliereimder, btit 
 sliall l)c liable to llie person nolilMl for all damages or costs in- 
 curred by iiitn in consequence ot^.icit notice and abandonment 
 — such costs to be taxed in tlie same manner as costs after an 
 award ; and tiie comi)a;iy may give to the same or any other 
 ])erson notice for other land or material or for land or material 
 otherwise described, notwithstanding the abandonment of the 
 former notice. 
 
 R. S. O., ch. 170, sec. 20(16), Any notice for lands as aforesaid may be 
 desisted from, and new notice given with rei'anl to the same or other lands to 
 the same or any other party ; liut in such cise tlie liability to the parly first 
 notified for all damages and costs by him incurred in conseiiuence c)f sucli 
 notice and desistment shall rubsist (provideil, however, that the right of de- 
 sisting be not e.Nerci.sed more than once). (1) 
 
 K. S. Q., Art. 5164. (24). Same as Ontario, excepting ^ ■) omitted. 
 
 N. B., 1891, ch. iS. sec. 20 (16). 
 
 K. S. N. S., ch. S3, sec. 9 (22). Same as Ontario, 
 
 151). The (i) perso.i offered or appointed as valuator; or as 
 (sole) (2) arbitrator, shall not be disqualified because he is pro- 
 fessionally employed by either party, or has previously expressed 
 an opinion as to the amount of compensation, or because he is 
 related or of kin to any (shareholder) (3) of the company, if he 
 is not iiimself personally interested in the amount of the com- 
 jjcnsation ; and no cause of disquaiific;ui(;ii shall be urged 
 against any ar!)itrator appointed by the judge alter his appoint- 
 nieiit, but the objection shall be ma le before the appointment, 
 
 if 
 
Dominion and Provinciai. Raiuvay Acts 
 
 Ixxiii 
 
 and iis validily or invalidity shall he summarily determined hy 
 
 the judge. . 
 
 K. S. O.. d,. 170. sec. 20 (,7).-(i)".v..veyo, or other," (2)cnuUcl, (3) 
 
 "r's'o' Alt 5164 (25). Same as Ontririo, excepting (2) " sole. 
 
 160. No cause of disqualification shall be urged against any ^-^.^^ 
 arbitrator appointed by the company or l)y the opposite party ,,^^,^^ ,,^. 
 after the appointment of a third arbitrator; and the validity or urged, 
 invalidity of any cause of disqualification urged against any such 
 arbitrator, before the appointment of a third arbitrator, shall be 
 summarily determined by the judge, on the application ot eithe. 
 party, after (two) (.) clear days' notice to the other, and 1 the 
 cause is determined to be valid, the api-oinlmcnt shall be null and 
 void, and the i^artv offering the i)erson so adjudged to be dis- 
 qualified shall be held not to have aj.pointed an arbitrator. 
 
 K S. 0.,cli. ijo.sec. 20(iS).— (i)"one." 
 
 K S Art. 5164, sec. 2O. Same as Dominion. 
 
 ^■i'.'.,^S9i, cl..i8,sec. 2o(i8).-(i)"ten." _ 
 
 K. S. N. S„ cli. 53, sec. 9 (24). Same as Dominion. 
 
 ICU. No aw.rd (i) shall be invalidated by reason -^ -^V^^^r 
 want of form or other technical objection, if the requirements ol ^^„^^^^ ^^^^,,„^_ 
 this Act have been substantially complied with, and if the award 
 stales clearlv the sum awarded, and the lands or other property, 
 right or thing for which such sum is to be compensation ; and 
 the person to whom the sum is to he paid need not be named m 
 
 the award. 
 
 R.S.O.,cl,. 170, sec. 20 (,9).-(i)"madoasaforesaul." 
 
 S:H.?.H^':c^-t:2'2o(>9).-(0*'-^'--^--'-' 
 
 R. S N. S., cli. 5,^, sec. 9 (25). 
 
 . (Whenever the award exceeds four hundred ^l^Hars) ( . ) Appeal/° ^ 
 a. V party to the aibitraiion may, within one month after receiv- ^^^^,.^ 
 in-'r a wriuen notice from any one of the arbitrators (or the sole 
 arbitrator, as the case may be) (2) of the making ot the award, 
 api)eal therefrom upon any question of law or fact to a (Superior 
 Court (.f the Province in which sucli lands are situate) ; (3) and 
 upon the hearing of the appeal the court shall, if the same is a 
 question of fact, decide the same upon the evidence (taken be- 
 fore the arbitrators), (4) as in a case of criymal ju.isdiction. 
 
 * ,: 
 
. : 
 
 XXIV 
 
 The Railway Law of Canada. 
 
 Practice ami 
 pir,cee(linj;s 
 in such case- 
 
 Other reme- 
 dies not 
 affected. 
 
 Upon pay- 
 ment or ten- 
 der of sum 
 awarded pos- 
 session may 
 be taken. 
 
 Warrant of 
 possession. 
 
 K. .S. O., cli. 170, sec. 20 (20V — (i| Omitted, (2) omitted, (3) " Juilf,^' of 
 the llii^li Couit," (4) omitted. 
 
 N. li., i89l,ch. 18, sec. 2a (20).— (I) Omitted, (2) omitted, (3) " Judge 
 u{ tlie Supreme Court," (4) same as Dominion. 
 
 3. U|)on sucii apju'al tlu practice and proceedings shall be as 
 I'.carly as may ho the .--.imL' as upon an appeal from the decision 
 of (an inferior conn to the said conn) (i) subject to any general 
 rules or orders from time to tini.' made by the judges of tlie said 
 (superior court in res]iect to such appeals, which orders may. 
 amongst other thing?, provide tliat any such appeal m.iy be 
 heard and determined by a single ju Ige). {2) 
 
 R. S. O., ch. ryo, sec. 20 (21). — (I) " Tlic judge of the County Court 
 under T/ie Coiin/y Ccur/s Act." (2) " llisjli Court, in the same manner as 
 they are authorized to make other General Rules and Orders respectinij prac- 
 tice and piocednre, altering and regulating such practice and proceedings." 
 
 N. 15., iSijt, ch. 18, sec. 20 (21). •■ Upon such an appeal the practice and 
 proceedings shall be, as nearly as may be. ihc same as upon an ajipeal from 
 the decision of a Supreme Court jvulge." 
 
 4. The right of appeal hereby givc;i shall not afleci the e.\ist- 
 
 in.f' law or ])raciice (in any Province) (i)as to selling aside 
 
 awarvl-.. 
 
 1<. S. 0.,ch. 170, sec. 20 (22).— (1) Omiitcd. 
 
 N. IJ., 1891, ch. 18, sec. 20 (22). .Same as Ontario. 
 
 1(><?. Ujjon payment or legal tender of the conipuisalion or 
 annual rent, so awarded or agreed upon, (,)■) to the person en- 
 titled to receive liiesame, or upon the (payment into court) ol the 
 amount of such compensation, in the manner (hereinafter men- 
 tioned; (/') the award or agreement shall vest in the coni|,'any the 
 power forthwith Ui take possession of the lands, or to e.vercise 
 ,he right, or to do the thing for which su"h comjiensalion or an- 
 nual retit has been awarded or agreed upon ; and if any resist- 
 ance or forcii)le opposition is made by any person io its so doing, 
 the judge may, on proi)f to his satisfaction of such award or 
 agreement, issue his warrant to the (sheiiff of tiie district or 
 county, or to a bailiff), (t) as he deems most suitable, to pui:down 
 such resistance or opjiosition, and to ptit the company in posses- 
 sion; and th neriffor bailiff shall lake wilh him sufficient assis- 
 tance for sucn ,)tirpose, and shall put down such resistance or 
 opposition, and put the company in possession. 
 
 R. S. 0.,ch. 170, sec. 20 (23).— (1) "deposit." 
 R. S. (^., .\it. 5164 (28). 
 
Dominion and Provincial Railway Acts. Ixxv 
 
 R. S. M., ch. 130, Ecc. 24.— ((I) " as jnovided by the Manitoba Ex[<ropria- 
 tion Act." (I) "deposit, in Her Majesty's Court of Queen's Bench for Mani- 
 toba." (l>)'' mm\\or\e<.\ \nX\\e Maiiitolia Expropriotioi Act:' (<r) ''Snentt 
 of the judicial district or to the bailifl' of the County Court of the Judicial 
 Division in either of which the lands are situated." 
 
 N. IJ., 1891, ch. 18, 'ec. 20 (23). bame as Ontario, omitting -'or to a 
 
 bailifl as he deems most suitable." 
 
 R. S. N. S ,ch. S3, sec. 9 (26). Same as Dominion, excepting •' con- 
 ■^table" for -'bailiff." 
 
 163. Such warrant may also be granted by ^l^e Judge, wiilv \\Vr^^^^^^^ 
 
 out such award or agreement, on affidavit to his satisfacliou that f,,,.^ award. 
 
 the immediate possession of the lands, or of the power to do the 
 
 thing mentioned in the notice, is necessary to car.-y on some 
 
 part of the railway with which the company is ready forthwith 10 
 
 proceed. 
 
 \i. S. O., ch. 170, sL-c. 20 (^24). 
 R.S.Q., Alt. 5164(29). 
 R. S. M., ch. 130, sec. 25. 
 N. 15., 1891, ch. iS, sec. 20 (24). 
 R.S. N. S., ch. 53, sec. 9 (27.) 
 
 164:. The judge shall not grant any warrant inider the next On what con 
 preceding section unless ten days' previous notice of the ^im^'*J_^'°.",','"^^^ 
 and place when and where the application for such warrants is be granted, 
 to be made has been served upon the owner of the land or the 
 person empowered to convey the land, or interested in the land 
 sought to be taken, or which may suffer damage from the taking 
 of materials sought to be taken, or the exercise of the powers 
 sought 10 be exercised, or the doing of the thing sought to be 
 done, bv tlie company ; and unless ihj company gives security Security to be 
 to his satisfaction, by deposit in a chartered bank, designated by t 
 hiin, to the credit of the company and such person or i^arty 
 jointly, of a sum larger than his estimate of the probable com- 
 pensation, an J not less than (fifty per cent, above) (i) the amount 
 mentioned in the notice served under (section one liundred and 
 forty-six). (2) 
 
 R. S. O., ch. 170, sec. 10 (24,. .\iul upon the Con>p:iny giving secuiity 
 to his satisfaction, and ,n a sum which slinll not he less than double the 
 amount n.entijned in the notice, V> pay or .lepo.lt the campensation to he 
 awarded within one month after the making of tlie a^vard. will: mterest from 
 the time at which possession is given, and with such ca,ts as ma> be lawfully 
 payab/: by the Company, (a) 
 
 R.S. M., ch. 130, sec. 25. Same as Ontario. ;,< 1 ,1 -wc^ 
 
 R. S. (>., .\it. Sl64(2y)- Same as Dominion, e.\c>-iiling (1) iloubic. (2; 
 "paragraph 1 3 of this .\rticle." 
 
 
iiil; 
 
 i I 
 
 :«' 
 
 
 Ixxvi 
 
 'I'liii Railway Law of Canada. 
 
 Costs. 
 
 Paymtiit on 
 judfje's order 
 only. 
 
 C'onipensatinn 
 to stand in tlic 
 place of the 
 land . 
 
 I'ayment of 
 compensation 
 into Court in 
 certain cases. 
 
 N. 11., 1891, ch. iS, sec. 20 (24). Same as Ontaiio, excepting ((7) addi- 
 tional, "but in granting sucli warrant, tliejudL;e shall impose suciiotlier terms 
 for the purpose of expediting tiic fixing of compensation as lie sliall think 
 just." 
 
 i\. S. N. S., ch.53, sec. 9 (27). (/') — Same as Dominion, excepting (i) 
 '• diiidde" (2) " suh-section or of this section," 
 
 ](»5. 'J'lic costs of any such npijlication to, and of any such 
 liearing before the judge, shall be borne by the company, unless 
 the compensation awarded is not more than the company had 
 onV:td to pay (i) and no i)art of such dc])Osil or of any interest 
 thereon sliall be repaid, or paid to such company, or paid to such 
 owner or parly, without an order from the judge, which he may 
 make in accordance with the terms of the award. (2) 
 
 K. S. Q., Art. 5164 (29). — (I) insert : " 'I'iie jictition, writ of jioss^ssion, 
 certificate of deposit above mentioned, ;\nd all other documents connected 
 with such incidental prdceedinps, sliall remain of record in the arcliives of the 
 Sii]ieri(ir Court of the distiict in whicii such ])roceedings were held, and a 
 special register of such proceedings shall be kept by the ]irolhonot-.uy.'' (2) 
 additional, " Provided always that, wjien such owner or person is absent from 
 llie district, without having a known agent upon whom such service can be 
 made, or when such owner is unknown, application for a warrant may be 
 made, at any time after the exjiiration of the month's notice mentioned in 
 paragraph fouiteen of this article, without any other or further notice.'' 
 
 " Every ])ropiietor who shall not be ))aid in full, in capital, interest and 
 cost, the amount lo him awarded by the arbitrators, within two months after 
 such awart', may then exercise his recourse against tlie conii)any to recover 
 the propeity in and possession <jf the land, by ordinary civil action, in wiiich 
 he may demand the damages to whicli he may be entitled." 
 
 R. .S. N. S., ch. 53, stc. 9 (27). (/)) — Same as Dominion 
 
 1<»0, 'i'he compen.-ation for any lands whicli may be taken 
 without lliG consent of the ],roprietor shall stand in the stead of 
 such lands ; and any claim to or incumbrance upon the said 
 lands, or any portion thereof, shall, as against the company, be 
 converted into a claim to the compensation or to a like i)ropor- 
 tion thereof; and the company shall be responsible accordingly, 
 whenever it hat paid such compensation, or any part thereof, to 
 a jjerson not entitled to receive the same, saving always its re- 
 course against such person. 
 
 R. S. O., ch. 170, sec. 20 (25). 
 R.S. Q., Art. 5164(30). 
 X. H., l89i,ch. 18, sec. 20 (25). 
 R. S. N. S., ch 53, sec. 9 (28). 
 
 KIT. If the company has reason to fear any claims orincum- 
 brances, or if any person to whom the compensation or annual 
 rent, or any part thereof is payable, refuses to execute the proper 
 
Dominion and Provincial Railway Acts. 
 
 Ixxvii 
 
 conveyance and guarantee, or if the person entitled lo claim the 
 same cannot be fonnd, or is unknown to the oompany, or if, for 
 any other reason, the company deems it advisable, the .:omp,iny 
 may (if the lands are situated elsewhere thw in the Province ot 
 Quebec) (i) pay such compensation into the oltiee of the (clerk 
 orprothonotaryofUK>court),(2) with the interest thereon lor 
 six months, and may deliver to such (clerk or prolhonouuy) (3) 
 un authentic copy of the conveyance, or of the award or agree- 
 ment, if there is no conveyance ; and such award or n^reement 
 shall thereafter be deemed to be the title of the company to tlie 
 land therein mentioned. 
 
 R S 0,cb. .70, sec. 20 (26).-(.)on,iltc,l. (2) ••• Account.nl of . ho 
 
 io. Omt^-^KtiicS^n which the bn.U ... s.uiat.a.- (3. " ,-th,„.o 
 
 '"']^'"n .Hyl.ch. 18, ^cc,20 (,6).-(i,n,uiUca. (2r'(-krk.f,hcPleas, 
 
 ''V. s't 'SXs^i- 9 (39) . San,c as Ou.l.cc, ..cepti,,, '< Su 
 Courl" for ■' Supciior Court." 
 
 jpicmi; 
 
 KJS. A notice in such form, and fur such time as the ( . ) Notjcc^to be 
 court appoints, shall be inserted in a newspaper if there is an>, 1 
 published in the county in which the lands are situated (or ,1 
 there is no newspaper published in the county, then m the olti- 
 ciaW;<r../A.' of the Province, if any, and also in a newspaper 
 published in the nearest county thereto in wl.ich a newspaper is 
 published), (2) which shall state that the title ot the company- 
 that is. the conveyance, agreement or award-ts under this Ac,, 
 wl shall call upon all persons entitled to the lands, or to any 
 part thereof, or representing or being the husbands of any per- 
 Ls so entided, to hie their claims to the compensation, '^-y ^^^^^ 
 put thereof; and all such claims shall be received and adjuoi-, 
 cated upon by the court, and the said i.roceedmgs shall torever 
 bar all claims to the lands or any part , lereot, nu ludmg d .ac,, 
 (a) as well as all mortgages or incumbrances upon the same ; and l^j^^^^- 
 he court shall make such order for the distribution, payment or of^^-M-e 
 investment of the compensation, and for the securing ol the 
 rights of all persons interested, as to right and justice (3) and to 
 law appertains, (p) 
 
 K S O ch .70, sec. 2o(27).-(.) " Hi^'' " , ^f > '^ ^u.l in the Uly of 
 
 upon. 
 
 
m 
 
 n\ 
 
 IX.Wlll 
 
 llIK R.MI.WAV I. AW OK CaNADA. 
 
 
 j 
 
 i 
 
 t; 
 
 i 
 
 1 i 
 
 
 i ! 
 
 4 
 
 liifi 
 
 h 1 
 
 1 1 , 
 
 
 i' • 
 
 \'\ 
 ti 1 
 r 
 
 
 
 ( 
 
 P' 
 
 U. S. (,),, A It. 5 164 (31) ( ;2). "andpiocectlingssliall betaken to obtain the 
 confiniiaiiun of the company's title, except that, in addition to the usual con- 
 tents of tlie notice, llie protlinnolary shall stale that the comjiany's title (that 
 is to say, the conveyance or the award) is under this section," and shall call 
 upon, etc., etc. Kemainder same as Dominion Act, excepting (i;) " not yet 
 ojjen,"' (/') '■■ and the provisions of this section and of tlie charter and o( the 
 law require." 
 
 N. I!., 1891, ch. iS, sec. 20 {2j). (r) " Supreme." (2) omit, "if any, 
 and also in a newsjiaper puMishod in the nearest County thereto in which a 
 news])nper is pulilished." l\est same as Ontario. 
 
 U. S. X. S., ell. 53, see. 9 (3<>), as amended by 55 Vic, ch. 35. Same as 
 Dominion, exceptini; (->) "and at the seat of Government of the Province." 
 (3) Same as Ontario. 
 
 Costs. ICJl). The costs of llic i)rocccdiiigs, in whole or in part (in- 
 
 cludini; the inojier allowance to witnesses) (i) shall be paid by 
 
 Inteie.-t. ihe company, Of by any other ])erson, as the court orders ; and 
 
 if (such order of disiribiition) (2) is obtained in less tlian six 
 months troni the iiaymenl of the compensation (into court) (3) 
 tlie court siiall direct a proportionate part of tiic interest to be 
 returned to tlie company, and if, from any error, fitull or neglect 
 of the company, it is not obtained until after the six montiis have 
 expiree!, the court sliall order the company to pay lo the (proper 
 claimants) (4) the interest for such further jjeriod as is right. 
 
 R. S. O., ch. 170, sec. 20 (28) (29). — (l) omitted. 
 
 U. S. (.) , Art. 5104 {33).— (I) Omitted. (2) "judgment of confumalion." 
 (3) "to tile prothonotary." (4) " prothonotary ." 
 
 N. IJ., 1S91. ch. iS, sec. 20 (28) (29) Same as Ontario. 
 
 R. S. iV. S.. ch. 53, sec. 9 (31) (32). Same as Dominion, exceptint; (I) 
 omitted. 
 
 Proceedings 170. Ifthe lands SO taken are situated in tiic Province of 
 in a lil<e ca.'-e Quebec, and if the comi)any has reason to fear any claim, mort- 
 
 in the Pro- / , . > • • 1 -r .1 1 
 
 vince of One- s''g*^i iiypothci, c or incumbrance, or if any person to wiiom the 
 
 bee. compensatic or annual rent, or any part thereof, is payable, 
 
 refuses to execute the proper conveyance and guarantee, or ifthe 
 person entitled to claim the compensation or rent cannot be 
 found, or is unknown to the comp ly, or if, for any other reason, 
 the company deems it advisable, the company may pay such 
 compensation into the hands of the prothonotary of the Superior 
 ■ Court for the district in wliich the lands are situate, with the 
 interest thereon for six months, and may deliver to the said pro- 
 thonotary an authentic copy of the conveyance, or of the award 
 if there is no conveyance ; and such award shall thereafter be 
 
 Confirmation deemed to be the title of the company to the lands therein men- 
 of title. 
 
 :1S 
 
 I \ 
 
Dominion and Pkovinciai, Railway Acts. Ixxix 
 
 tioned. and proceedings shall thereupon be had for the confiinv 
 .tionof the tide of the company, m like manner as "^ °^^;^'- .,^, ^^^.^^ 
 cases of confirmation of tide,— except diat, m addition to the -\ ^^^^^^ ^^^^ 
 usual contents of the notice, the prothonotary sha;l state that the 
 title of the company (that is, the conveyance or award) is under 
 this Act, and shall call upon all i)ersons entitled to the lands, or 
 any part thereof, or rei-rescnling or being the husband ot any 
 person so entitled, to file their claims to the compensation or 
 any part thereof; and all such claim« shad be received and adju- 
 dicated ui)on by the court. 
 
 1 11 f,>..,,,,,..- Km- nil l^^fleCl of con- 
 
 ni. Such judgment of conhrmalion sh.all foieve. bai all |._^^_^^.^^^^^ 
 claims to the land, or any part thereof, including dower not yet 
 o,>en. as well as any mortgage, AyJ>o//u./.c or incmnbrance upon 
 the same ; and the court shall make such order for the cbstnbu- ^>.^t.|but-_ 
 tion, pavment or investment of the compensation, and for the ,i„„, 
 security of the rights of all persons interested, as to right and 
 justice and to law appertains. 
 
 1-73 'I'lie costs of the proceedings, in whole or in part, shall t-'ost.. 
 be paid by the company, or Ly any other person, as 'he court 
 orders, and if judgment of confir.^iation is obtained in less than 
 six months from the payment of the compensation to the ,)ro- b,te,c-t. 
 thonotary. the court shall direct a proportionate part of the in- 
 terest to be returned to the company; and if, from any error, 
 rault or neglect of the comp.^ny, it is not obtained until alter the 
 siv months have expired, the court shall order the company to 
 pay the prothonotary the interest for such further period as is 
 right. 
 
 RAILWAY Cl^OSSIXGS AND JUNCllONS. 
 
 17». (As amended by 56 Vic, ck. 27, .... i.) The lailway c^ssu^ub- 
 of any company shall not be crossed, intersected, joined or united {,^^i,„.,';i,,,y 
 bv or with any other railway, nor shall any railway be inter- Committee, 
 sected or crossed by any street railway, electric railway or tram- 
 way whether constructed under Dominion or provincial or 
 municipal authority or otherwise, unless the place and mode of 
 die proposed crossing, intersection, or junction or union are 
 fir<=t approved by the Railway Committee, on application there- 
 for -of which application ten clear days' notice in writing shall Nouce. 
 
 I 
 
 1% ■ 
 
 \ 
 
I 
 
 
 
 Crossings 
 street rail- 
 way--, etc. 
 
 by 
 
 I XXX 
 
 Railway 
 Commiitee 
 may make 
 regulations. 
 
 Necessary ap- 
 paratus may 
 be ordered to 
 be adopted. 
 
 TiiK Railway Law o'- Canada. 
 
 be given by the parly or company dt siring the approval, such 
 notice to be sent hy mail addressed to the president, general 
 manager, managing director, secretary, or superintendent of the 
 company whose railway is to be so crossed, intersected, joined 
 or united ; and in tlie case of crossing by street railways, electric 
 railways or tramways respectively, tiie Railway Committee shall 
 h ve tiie same powers in all respects as to tlie protection of such 
 c: jssiiig and otherwise as are given the Railway Committee by 
 this Act in regard to one railway crossing another, 
 
 R. S, O., cli. 170, sec. 9 (16). Tlie C()m|)piiy shall not a\ail itself of any of 
 the powers contained in tlv; Inst subsection (uniting with and crossing otiier 
 railways) without application to the (Coniniissioner of rublic WoiUs) (l) of 
 wiiicli application notice in willing shall 1 e given to any otiier railway affected, 
 by sending the same by irail, or otherwise, to the address of the president, 
 superintendent , niann^ing director, or secretary of any such company, for 
 approval of the mode of Ci;i..sing, union, or intersection proposed ; and when 
 such approval has been obtaintd, it shall be lawful for either lailway, in case 
 of disagieemeiit as to the aincunt to be ])aid for compensation, to proceed for 
 such compensation as jirovided in tlie (last sub-section). (2) 
 
 R. S. i),. Art. 5132 (15), Same as Ontario. e.xceptii)g (i) " Railway Com- 
 mittee constituted under Art. 5182 for approval of the mode of junction, 
 crossing, or intersection proposed." (2) "preceding jjaragraph 14'' 
 
 R. S. M , cii. 130, sec. 26, " IS'o railway company, wlietlier incorpoiated 
 by the rarliamcnt of Canada or otherwise, shall cro>s, inter.scct, join or unite 
 its railway with any railway subject to llie legislative authority of th.e Legis- 
 lature of Manitoba, without liist obtaining the app-'oval of the Kailw.ry Com- 
 mittee of the Executive Council of the I'lovince of Manitoba, as to the pi.iee 
 and mode of crossing, intersection, junction or union proposed. Ten ihiys' 
 notice in writing tf tlie application to such committee shall be given by llie 
 company to any such company affected, by sending the same by mail or 
 otherwise to the address of tlie president, superintendent, general manager, 
 managing director, or secietary of such company.'' 
 
 N. ];., i89i,ch. iS, sec. 9 (16). !iame as Ontario, adding the woid 
 '• chief" before " commissioner of public works."' 
 
 R. .S. N. S , ch. 53, sec. 7 (i.S)- Same as Ontario, excepting (I) " Gov- 
 ernor in Council for the approval of the moile of cros-ing, union or inter- 
 section i)roposed." 
 
 174. The Railway Committee may make such orders and 
 give such directions respecting the proposed crossing, intersec- 
 tion, junction or union, an 1 the works to be executed and the 
 measures to be taken by the respective companies, as to it 
 appear neces.sary or expedient to secure the pui)lic safety. 
 
 R. S. M.jch. ]3o,sec. 27. 
 
 175. The Railway Committee may, on the application of any 
 company (i) whose railway, at rail- level, crosses or is crossed 
 by the railway of any other company, direct such companies to 
 
"^ 
 
 Dominion and Provincial, Railway Acts. 
 
 Ixxxi 
 
 ich 
 
 ■ral 
 
 lie 
 
 ■d 
 
 adopt and put in use at sucli crossing, within a reasonable time, 
 
 to be fixed by such committee, such an interlocking switch and 
 
 signal system or device, as, in the o])inion of sucli committee. 
 
 renders it safe to permit engines and trains to pass over such 
 
 crossing without being brought to a stop. 
 
 R. S. M., ch. 130, sec. 28. (i) " subject to tlie Ici,'islative authority af 
 the J.egi-Ialure of Manitoba." 
 
 176 . The companies may agree witii each other as to the I'lopoition of 
 compensation to be paid by one to the other in respect of ''i^v p'^Pj'|,\*""'^,!j°i^'^ 
 crossing, intersection, junction or union, or tiie proportion to iicccimpany. 
 borne by each of the costs of executing any work or taking any 
 measure, or the carrying out of any order of the Railway Com- 
 mittee ; but if they fail so to agree, the amount of such compen 
 sation, or the proportion of sucli costs so to be borne by each 
 shall be determined by the Railway Committee. 
 
 R. S. O., ch. 170, sec. 9 (15). " and the owners of both railways may 
 unite in forniinf; such intersection and yiant the facilities therefor ; and in case 
 of disagreement u|i(iii the amount of compensation to be made therefor, or 
 upon the point or maniiei of such crossing and connection, the same shall be 
 determined by ailiitrators to be appointed by a judge of the dligh 
 Court.") 00 
 
 R. S. Q., Art. 5132 (14). Same as Ontario, excepting (./) "Superior 
 Court." 
 
 R. S. M., cli. 130, sec. 29. Same as Dominion. 
 
 N. B., 1891, ch. 18, sec. y (15). Same as Ontario, excepting (c) " Su- 
 preme Court." 
 
 R. S. N. S., ch S3, sec. 7 (14). Same as New Brunswick. 
 
 177. Every railway company, incorporated by any Act of Intersection 
 
 the Legislature of any Province which crosses, intersects, joins °,'*'''y'*. 
 ° ■' . ' ■' under provin- 
 
 or unites with any railway within the legislative authority of cial charters, 
 the Parliament of Canada, or which is crossed, or intersected by. 
 or joined or united wi*h, any such railway, shall, in respect of 
 such crossing, intersection, junction and union, and all matters 
 preliminary or incident thereto, be deemed to be, and be, with- 
 in the legislative authority of the Parliament of Canada, and 
 subject in respect thereof to the provisions of this Act. 
 
 R. S. O. ch. 170, sec. 9 (7). The provisions ofthe last precedin<; sub- 
 section, and the provisions for the ascertainment of compensation contained 
 in subsection 15 of this section, shall not extend or apply to any railway 
 incorporated under any Act of tlie Legislature (of Ontario) (i) in any casein 
 which it is proposed that such railway shall cross, intersect, join or unite 
 with, or be crossed, intersected, joined or united with a railway under the 
 legislative control of Canada. 
 
 N. B., 1891, ch. 18, sec. 9 (17). Same as Ontario, omitting (i). 
 
 If 
 
 I 
 
 Ul 
 
Ixxxii 
 
 The Railway Law ok Canada. 
 
 It 
 
 I 
 
 Navigation 
 nol to l)e im- 
 peded. 
 
 bridges over 
 liavij;able 
 livers, etc. 
 
 Hiidges to be 
 floored. 
 
 Plans of 
 bridges, etc., 
 to be ap- 
 proved. 
 
 NAVIGABLE WATERS. 
 
 178. No company shall cause any obstruction in or impede 
 
 the free navigation of any river, stream or canal, to or across or 
 
 along which its railway is carried. 
 
 K. S. O., cli. 170, sec 9 (5), (91). 
 
 K.S. Q., Art. 5144. 
 
 K. S. M., cli. 130, sec, 12 (/'). 
 
 N. H., i89i,ch/iS, sec. 9 (5), (71). 
 
 K. .S. N. S., ch. 53, sec. 64. 
 
 17?). Whenever the railway is carried across any navigable 
 river or canal, the company shall leave openings between the 
 abutments or piers of its bridge or viaduct over tlie same, and 
 shall make such bridge or viaduct of such clear height 
 above tlic surface of the water, or shall construct such draw- 
 bridge or swing-bridge over llie channel of the river, or over the 
 whole width of the canal, and shall be subject to such regula- 
 tions as lo the opening of such swing-bridge or draw-bridge as 
 the (i) Governor in Council, from time to time, directs or 
 makes. 
 
 R. .S. O., cli. 170, sec. 92. — (I) " Lieutenant." 
 R. .S. (^)., Art. 5145. .Same as Ontario. 
 N. 1?., 1891, cli. 18, sec. 72. Same as Ontario. 
 R. S. N. S., ch. 53, sec. 65. Same as Dominion. 
 
 180. No company shall run its trains over any canal, or over 
 the navigable channel of any river, without having first laid such 
 proper flooring under and on both sides of its railway track 
 over such canal or channel, as is deemed by the Minister suffi- 
 cient to prevent anything falling from the railway into such 
 canal or river, or upon the boats or vessels, or craft, or persons 
 who navigate such canal or river. 
 
 181. No company shall construct any wharf, bridge, pier or 
 
 other work upon or over any navigable river, lake or canal, or 
 
 upon the beach or bed or lands covered with the waters thereof, 
 
 until it has first submitted the plan and proposed site of such 
 
 work to the (Railway Committee), (i) and the same has been 
 
 approved ; and no deviation from such approved site or plan 
 
 shall be made witiiout (the consent of the committee). (2) 
 
 R. S. O., ch. 170, sec. 93. — (i) " Lieutenant-Governor in Council." (2) 
 " his consent." 
 
 R. S. Q., Art. 5146. Same as Dominion. 
 
 . 
 
 $ 
 
Dominion and Provinciat, Railway Acts. Ixxxiil 
 
 N, B,, i89i,ch, iS, sec. 7.^ Sanjc as Ontario. 
 
 R. S. N, S., ch. S'?, sec. 66. Same as Dominion, excepting (i) (2) 
 " Governor in Council." 
 
 18'4, Tiic (loveriior in Council may, upon the report of tlie Substitution 
 
 ,,, •, ,^^ v. ^ / > .1 • • . of one form iif 
 
 (Railway Committee; (2) authorize or require any comi)any to ,^|.[^, c^,, 
 
 construct fixed and permanent bridges (or swing, draw or mova- anoiliLT. 
 
 ble bridges) (a) or to substitute any of sucli bridges for (existing 
 
 bridges) (t,) on the line of its railway, within such time as the (4) 
 
 Ciovtrnor in Council directs ; and for every day after the period I'enaliy for 
 
 ,. , , . 1 • I .1 /• -1 ^ 1 •.! .1 non-compli- 
 
 so hxcd during which the company fails to comply with thCj,^j,g_ ' 
 
 directions of the Governor in Council, it shall forfeit and pay to 
 Her Majesty the sum of two hundred dollars ; and no company No swing 
 shall substitute any swing, draw or movable bridge for any <"''-"<^lsubsiiiiit!;(l' 
 or pcimanent bridge already built and constructed without the witliout per- 
 previous consent of the (Railway Committee). (5) 
 
 K. .S. O., ch. 170, sue, 65.— (2) " Conimissionci- of I'lihlic Works." (3) 
 " swinjj, draw or moveable bri(l{;cs." (4) " Lieutenant." (5) '•Lieutenant 
 Governor in Council." (u) omitted. 
 
 R. S. Q., Art. 5194. (3) " swing, draw or moveable bridges." (11) omitted. 
 
 N. H., 1891, ch. iS, sec. 52. — (2) " Chief Commissioner of Public Works." 
 (a) omitted. (3) " swing, draw or moveable bridges." (5) " Lieutenant 
 Governor in Council." 
 
 mission. 
 
 HIGHWAY CROSSINGS. 
 
 18J5. The railway shall not be carried along an existing high- 
 way, but shall merely cross the same in the line of the railway, un- 
 less leave therefor has been obtained from the (Railway Com- 
 mittee), (i) and no obstruction of such highway with the works 
 shall be made without turning the highway so as to leave an open 
 and good passage for carriages, and, on completion of the works, 
 replacing the highway; and every company which violates the pro- 
 visions of this section shall incur a penalty of not less than forty 
 dollars for each such violation ; but, in either case, the rail itself, 
 if it does not, when the works are completed, rise above or sink 
 below the surface of the road more than one inch, shall not be 
 deemed an obstruction. 
 
 R. S. 0.,ch. 170, sec. 29(1). — (i) " proper municipal authority." 
 R. S. Q., Art. 5170 (I). — (I) " proper municipal or local authority." 
 R. S. M., ch. 130, sec. 31 (a). Same as Ontario. 
 N. B., 1891, ch. 18, sec. 21 (i). Same as Ontaiio. 
 R. S. N. S., ch. 53, sec. 15 (i). Same as Quebec. 
 
 R.iilw.iy not 
 to be carried 
 along high- 
 way without 
 permission of 
 proper au- 
 thority. 
 
 Penalty for 
 contravention. 
 
 ■I'li 
 
j 
 
 M( 
 
 IXXXIV 
 
 Till". Railway Law ok Canada. 
 
 If 
 
 1. 1' 
 
 Variation 184. Wliencver any railway crosses any liigliway, without 
 
 *„ J^jjg*^[°ygl"^ being carried over it by a bridge, or under it by a tunnel or 
 bridge, whether the level of the highway remains undisturbed or 
 is raised o\ lowered to conform to the grade of the railway, the 
 top of the rails shall not, when the crossing is completed, rise 
 above or sink below the level of the highway more than one inch. 
 
 K, S, O., cli. 170, sec. 29 (2). " No part of the railway which crosses a 
 highway, without l)cin|.; carried over l)y a l)ri(lf;e or umler by a tunnel, shall 
 rise above or sink below the level of the highway move than one inch, and 
 the railway may be carried across or above a hijjhway within the limits afore- 
 said." 
 
 R. S. Q., Art, 5170 (2). As amended by 52 \'ic. ((Jue.) th. 44. ."^ame 
 as iJoniinion. 
 
 K, S. M., ch. 130, sec. 31 (/'). Same as Ontario. 
 
 N. h,, 1891, ch. 18, sec. 21 (2). .Same as Ontario. 
 
 K. S. N. S., ch. 53, sec. 15 (2). 
 
 Dimensions of 1JS5. Tlie span of the arch of every bridge erected for carry- 
 hiehw^ays*and'"8 ^^^ railway over or across any highway shall, at all times, be 
 inclination, and be continued of the open and clear breadth and space, under 
 such arch, of not less than twenty feet, and of a height, from the 
 surface of such highway to the centre of such arch, of not less 
 tlian twelve feet; and the descent of the highway passing under 
 any such bridge shall not exceed one foot in twenty feet. 
 
 R. S. M.,ch. 130, sec. 31 {c). 
 
 R. S. Q., Art. 5170 (3). 
 
 R. S. O., ch. 170, .sec. 29 (5). '' Overhead bridj^es, and other erections or 
 structures over a railway, shall be constructed and maintained in conformity 
 with sections 4 and 5 of 7'/ii' Railway Accidents Ac/.'" 
 
 R. S. N. S., ch. 53, sec. 15 (3). Same as Dominion. 
 
 Inclination of 
 highway at 
 crossings. 
 
 180. The inclination of the ascent or descent, as the case 
 may be, of any approach by which any roadway is carried over 
 or under any railway or across it at rail level shall not be greater 
 than one foot of rise or fall for every twenty feet of the horizontal 
 length of such approach, unless the Railway Committee directs 
 otherwise ; and a good and sufficient fence shall be made on each 
 side of such approach, and of the bridge or pas.sage connected 
 with it, — which fence shall be at least four feet in height from the 
 Cost thereof surface of the approach, bridge or passage; and, in respect to 
 railways which, on the nineteentii day of April, one thousand 
 eight hundred and eighty-four, were under construction or already 
 constructed, the Railway Committee shall determine the propor- 
 tion in which the cost of providing such fencing for such ap- 
 
 Fciices. 
 
 in certain 
 cases 
 
Dominion and Provincial Raii.wav A. ts. Ixxxv 
 
 l)roachsli;ill he borne l)y ihc company or municipality or person 
 interested. 
 
 K. S. O., cl>. 170, sec. 2q (.<!. ' ' The ascent of all l.^a^;cs..n.■l..l to c.uTy 
 al.ii;l.wayove.arail\v:«ysli.ill not be move tl.an one foot '" '^;.;." .> .['V ' V; 
 crease over the natural a'cent of the hij^hway an.l .a goo,! an.l ^"'l''^;^^''f '-•"';« 
 shall he n.ade on each si.le of every Uulge, which shall not he less tl.an four 
 feet above the sinf.tce of the liri(l^;e." 
 
 W, S. ()., Art. 5170 (4) Same as Onlnrio. 
 
 K. S. M., ch. \]n, sec. ',1 ((/). Same as Ontario. 
 
 N. li., i8(|i, ch'. iS, sec. 29 (.^|. Same as Ontario. 
 
 R. S. N.'S.. ch. 53, sec. 15 (41. 
 
 1S1. Wl.enever any portion of a railway is constni.ied, ""• J;^'),;',',,^-'^^- 
 ■lutiiori/.cd or i)roposed to be t:onstructed ui)on or along or across ^^,^y ^^^ j,^^ 
 any street or other pnblic l.iglnvay at rail level or otherwise, tl-e level tojje 
 compmv, before constrncting or using the same, or, m the case 
 of railways already constructed, within such time as the Railway 
 Commhtee directs, shall submit a plan and profile ol such l""'; 
 lion of railway for the approval of the Railway CommUtee ; and i^o.^^^^ 
 the Railway Committee, if it appears to it expedient or neces- Commhtee ^n 
 sary for the j.ublic safety, may, from time to time, with the such case, 
 san. tion of the Governor in Council, authorize or reqiure the 
 comi)any to which such railway belongs, within such time as the 
 said commiitee directs, to protect such street or highway by a 
 watchman or bv a watchman and gates, or other rroicct.on,--or 
 to carry such s'treet or highway either over or under the said rail- 
 wav by means of a bridge or arch, instead of crossing the same 
 at 'rail level,-or to divert such street or highway either tempor- 
 arily or permanently,_or to execute such other works and take 
 such other measures as under the: circumstances of the case ap- 
 pear to the Railway Committee" best adapted for removing or 
 diminishing the danger arising from the then! position of the 
 railway and all the provisions of law at any such time appli- As to laJd re- 
 clble to the taking of land by such company, and to its valua-H"'rec. 
 lion and conveyance to the company, and to the compensation 
 therefor, shall apply to the case of any land required for the pro- 
 per carrying out of the requirements of the Railway Committee 
 
 under this section. 
 
 R S O ch i-o,fec.66. In any case where a railway (commenced after the 
 ,, h Mav''i887V( 1 is constructed across a (2) road street, or o her pr.bhc 
 
 Et^t Govrnor7n Su^.^a-u^f^l^a require the Company to whom 
 
Wr 
 
 '■1' ^ 
 
 11 
 
 : ;( 
 
 Ixxxvi 
 
 Thk Railway Law of Canada. 
 
 tlie railway belongs, within such time as the (Chief Commissioner) (4) directs, 
 to cany the road, street or highway by means of a bridge or arcli, eitlier over 
 or under the railway, instead of crossing tlie same on the level, or to execute 
 such other work as under the circumstances of the case ap]iear to (liim) (5) 
 the best adapted for removing or diminishing the damage arising from such 
 level crossing ; and all the provisions of law at such time applicable to the 
 taldng of land by Railway Companies, and its valuation and conveyance to 
 them, and to ihe compensation therefor, shall apply to the case of land re- 
 quired for the construction of any works for effecting the altera; ion of such 
 level crossing. 
 
 R. S. Q., Alt. 5195. Same as Ontaiio, excepting (i) omitted, (2) •• tuni- 
 I'ike road," (3) "Railway Committee," {4) " said Committee," (5) "the 
 ^aid Committee." 
 
 N. U., 1891, ch. iS, sec. 53. Same as Ontaiio, excepting (i > omitted. 
 ■ R. S. N. S., ch. 53, see sec. 75. 
 
 188. Tlic Railway Committee may make such on, ' , and 
 give such directions respecting sucli works and the cxc .ion 
 thereof, and the apportionment of the costs thereof and of any 
 such measures of protection, between the said company and any 
 person interested therein, as appear to liie Raihvay Committee 
 just and reasonable. 
 
 189. Every company shall incur a penalty of fifty dollars for 
 each and every day after the expiration of the date fixed by the 
 Railway Committee for the execution of any such works during 
 which such works remain uncompleted, and for each and cvf.'ry 
 day after the date lixcd hy the Railway Comm'ttec for the tak- 
 ing of any measure for tlie protection of any such street or higl> 
 way, or for removing or diminishing such danger as aforesaid, 
 
 lime may be qj-j lyhich the conii^anv fails io take snch measure : Provided, 
 extended. . 
 
 however, that tlic Railway Committee may extend the time for 
 
 the completion of the said work uijon proper cause shown. 
 
 R. S. M., ch. i,;o, sec. 31 {/]. "for eveiy neglect to comply witli the 
 requirements of clause 31, a penalty iiut exceeding forty dollars shall be 
 incurred." 
 
 Signboards IJX). Signboards at every highway crossed at rail level by 
 
 over railway any railway shall be erected and keiit up at each crossing, and 
 
 crossings. 1 n 1 ,1 1 w -i ■ >. • . 1 1 • 1 
 
 " shall have tiie words " railway crossing painted on each side 
 
 of the signboard, in letters at least six inches in lengtii, and in 
 
 the Province of (Quebec such words shall be painted in both the 
 
 English and the French languages ; and every company which 
 
 neglects to comply with the rerpiiremcius of this section shall 
 
 incur a penalty not exceeding forty dollars. 
 
 Railway 
 Committee 
 may make 
 
 regulalions. 
 
 Penalty for 
 non compli 
 ance. 
 
 -^ 
 
 ^ja^ ^jaM^iA- ■ , 
 
Dominion and Provincial Railway Acts. Ixxxvii 
 
 R. S O , ch. 170, sec. 29 (4). " Signboards stretching over (i) the highway 
 crossed at a level by a lailuay shall be erected and kept up at each cross- 
 ma, at such height as to leave si.xteen feet from the highway to the lower edg( 
 of the signboard, andhavini; the words «' A\,l/'i>av Crossui^:'] v^mted on ercl 
 
 e 
 ch 
 
 side of t'he signboard, and in letters not less than six inches in length, and lor 
 
 every neglect to comply wilii the requirement of this clause, a penalty not 
 
 exceeding forty dollars shall be incurred." _ „,•„ r 
 
 R. S. Q., Art. S170 (6). Same as Ontario, excepting U) •• or projecting 
 
 across 
 
 N. H.,i89i,ch. 18, sec. 21 (4). San.e as Ontario. 
 R. S. N. S., ch. S3, sec. 15 (6). Same as Quebec. 
 
 FARM CROSSINGS. 
 
 191, Every company sliall make crossings for pei.cns across Fam cross- 
 whose lands the railway is carried, convenient and proper for the 
 crossing of the raihvay by farmers' implements, carts and other 
 
 vehicles. 
 
 R S O \rt SI7I (2) '•- Farm crossings shall be made and maintained 
 by tiie Company,' upon the application of any proprietor of land present or 
 future, on each such land." 
 
 liRIDCES — TUNNELS. 
 
 ISYi Every bridge or otlier erection or stnictttre or ttumel As^to Ight 
 over or through or imder which any raihvay passes, and every v„ijges_ 
 tunnel through which any railway passes, shall, at all times, be so 
 maintained as to admit of an open and clear headway of at least 
 seven feet between the lop of the highest freight cars used on the 
 railway and the bottom of the lower beams, members or portions 
 o'f that part of such bridge, erection, structure or tur.nel which is 
 over the raihvay ; 
 
 .. The company, before using higher freight cars than those No l^Rher^cars 
 "'hich acimit of such open and clear headway of at least seven 1,,.;^^^ ,„ 
 feet, shall, after having first obtained the consent of the mumci- raised, 
 polity or of the owner of such bridge or other erection, structure 
 or tunnel, raise every such bridge or other erection, structure or 
 tunnel, and the approaches thereto, if necessary, so as to admit 
 of such open and clear headway of at least seven feet ; 
 
 p ^ O ch i-o ^ec 20 (=,1. " Overhe.rd 1)1 idges, and other erections and 
 stitlu^es over" a 'railway, shall be constructed and maintained in conformity 
 with SL'Ctions ,1 and ; of J'/te Railway Aai<kiii.< .Ut" 
 
 N f .So., Ch. IS, sec. 21 (,). Wlienever a bridge or any otne,- erect.o. 
 or structure (o tunnel) (.) shafl be constructs (2) over or on a rai.wav, c 
 whenever it shall become necessary to reconstruct any highway bridge, o 
 otteea'c ion, or structure (or tunnel) (;,, already Innlt (and un.ler or through 
 
 ae IS 
 
Ixxxviu 
 
 The Railway Law or Canada. 
 
 ] 
 
 
 
 
 u 
 
 
 1 i-i 
 
 i 
 
 I ''5' 
 1^ 1 
 
 
 Hiidge, etc., 
 to be raisol 
 when recon- 
 striicteJ. 
 
 And cleai' 
 headway 
 mnintaincd 
 tlitreafter. 
 
 which it is proposed to construct a railway) {4), or to make larj-e 1 pairs to the 
 same (siidi biid^'es or erfcllons, structures or tunnels, and the approaches 
 tlicreto, if necessary) (5) shall be con>tructcd or reconstniciud (by and) (6) at 
 the cost of the Railway Company or (7) oilier owner of bridge erections, or 
 structures (or tunnels), (S) as the case may be. nnd shall be so conslrncti>d, 
 and at all limes be mainlained at a sufTitient height frcfUi the surface of the 
 rail- (if the railway to admit of nn open and clear headway of not less than 
 seven feet between the top of the highest freiLjht cars then running; on the rail- 
 way and the lowest beams, memlier-; or poi linns of such bridtre, or olher 
 erection (ortunnell, (q) and thereafter any Railway Company, before usint' 
 higher freight cars than tho^e runninjr on llieir railways at the time o' the 
 construction or reconstruction of or large repairs to such liridge, or . iher 
 erection, or structure (or tunnel) (10) sliall, after having fust obtained iii>; 
 consent of the nuinici|)ality or of the owners of such highway bridge, or other 
 erection, or sliuclure(or tunneh raise the said bridge, or other erection, or 
 structure (orlunnel), (11) and the approaches thereto, if neces-ary, at the 
 cost and charges of the Railway Comjiany, so as to admit as aforesaid an 
 open and clear headway of not less than seven feet over the highest freight 
 ;ar then about to be used on the railway. 
 
 R. S. Q., Art. 5170 (5). Same as New lirunswick, excepting (I) omitted, 
 (2) "for tlie passage of a highway," (3,8,9, 10, II) omitted, (4) omilled, (5) 
 "the lower beams or member.-, of the superstructuie (>1 any such bridge, or 
 of any other structure and the approaches thereto,'' (6) omitted, (7) '"or of 
 the i.unicipality."' 
 
 R. S. Q., ch. 212, sec. 4. .Same as Quebec. (.\s to reconstruction of 
 bridges existing on the 4th March, 1S81. .See 44 \'ic , ch. 22, sec. 4, Ont.) 
 
 R.S. N. S., ch. 53, sec. 15 (5)(/'). 
 
 ,:5. Wlienevcr any bridge, erection, strucliire or tunnel is con- 
 structed over or on the line of a railway, or whenever it becomes 
 necessary to reconstruct any bridge, erection, siruciure or tun- 
 nel already built over or on the line of a railway, or to iviake 
 large repairs to the same, such bridge, erection, structure or 
 tunnel, and the a|)proaches thereto, if neces.^ary, shall he oon- 
 SwUCted, reconstructed or repaired at the cost of the company, 
 or of the municipality or other owner of the bridge, erection, 
 structure or tunnel, as the case may be, and shall be so con- 
 structed and at all times maintained as to admit of an open and 
 clear headway of at least seven feet between the top of the high- 
 est freight cars then used on the railway and the bottom of the 
 lower beams, members or portions of that part of such bridge^ 
 erection, structure or tunnel which is over the railway ; 
 See notes to sec, 192 (I) (2) Dominion Act. 
 
 4. Such company shall thereafter, before using higher freight 
 cars than those used on its railway at the time of the construc- 
 tion or reconstruction of, or large repairs to, such bridge, erection, 
 structure or tunnel, after having first obtained the consent of the 
 
 \ 
 
Dominion and Provinci.u, Railway Act>. Ixxxix 
 
 municipalily, or of ihc owner of such bridge, erection, structure 
 or tunnel, raise the said bridge or other creciion, structure or 
 tunnel, and the approaches thereto, if necessary, so as to admit, 
 as aforesaid, of an open and clear headway of at least seven feet 
 over the top of the highest freight car then aliout to be u^ed on 
 the railway ; 
 
 See notes to sec. 192 (i) (2) Dominion Act. 
 
 5 The Governor in Council may exempt from the operation Except.on. 
 of this section .ny bridge, erection, structure or tunnel which is 
 
 upon any por ion of any line of railwny on all the cars of the 
 liains running, upon which air-brakes are used or of jrwise , 
 
 6 Every company shall incur a penalty not exceerling Tiftv PenaUy^kn 
 dollars per day for every day of wilful neglect, omission or,„,e. 
 refusal to obey the provisions of this section. 
 
 19:5. No company shall run its trains on any l^idge unless When only ^^^ 
 such bridge is constructed and maintained with safeguai ds ,,,„„,,, ^ 
 approved by the Minister. This section shall not apply to any bndge. 
 bridge already constructed, until six months after the passing ol 
 this Act. 
 
 FKNCES ANli CAXrLE-GUARDS. 
 194. When a municipal corporation for any township ^as Fences, caule 
 been organized, and the whole or any portion of such township ^^ ,,^ ^.,.^^.j^j 
 has been surveved and subdivided into lots for settleman. fences andjna.n- 
 shall be erected and maintained on each side of the railway 
 through such township, of the height and strength of an ordinary 
 division fence, with openings or gates or bars or sliding or hur- 
 dle <ates of sutiicient width f.r the purposes thereof, with proper 
 fastenings at farm crossings ot the railway, and also cUtle-guards 
 at all highway crossings suitable and sufficient ^^, P--"^ J^" ^ ^, ,, ,,,. 
 and other animals from getting on the railway: I'rovided always a ^^ ^^^^ 
 that in New Brunswick, Nova Scotia and Prince Edward Island, p.^ i. 
 wherever a county municipality has not been subdivided mto 
 local municipalities, each improved or occupied lot of land shall 
 be protected by fences, gates and cai.le-guards, as m this sec- 
 tion provided ; 
 
 ,. A hurdle gate has proper fastenings if it is .•fteen -ches FJ^ening^nt 
 longer than tnc opening and is supported at each end by two up- 
 right p -"sts ; 
 
lilt ' 
 
 ii'Si 
 
 I ^ 
 
 II! ■ 
 
 
 H I 
 
 i::; 
 
 xc 
 
 The Railway I,aw of Canada. 
 
 Omission or 
 neglect to 
 make A/iices, 
 
 R. S. O., cl). 170, sec. 30 (1). " Fences blmll be erected and maintained 
 On each side oftlie laihvay, of the height and strength of an oidinaiy division 
 fence, with openings or gates, or bars tlierein at farm crossings of the road, for 
 ti.e use oftlie pro|>iietors oftlie lands adjoining the railway ; and abo cattle- 
 guards at all road crossings, suitable and sufficient to prevent cattle and ani- 
 mals from getting on the railway." 
 
 R. S. C, cli. 170, sec. 30 (2), (Tlie said words "openings, gates or 
 bars '■ -liall be lield to mean, and shall in all cases imply, sliding gatts, com- 
 monly called hurdle gates, with proper fastenings), (l) but this shall not he 
 interpreted to the piofit of those jiroprietors and tenants of landi cro.-sed by 
 railways who had received compensation from the railway companies, fur 
 having omitted the erection of such gates before the loth June, 1847, nor 
 shall it in any way affect or apply to any rail\\ay constructed or in part con- 
 structed, on the lotii June, 1847 ; but the same shall apply only to railways 
 constructed or commenceil after that day. 
 
 R. S. Q., Art. 5171 (i). " Within siv months after any lands have been 
 taken for the use of the railway, tl'.e company shall, if thereunto required by 
 the proprietors of the adjoining lands, at its own costs and cliarges, erect and 
 maintain, on each side of the railway, fences oftlie height and stiength of an 
 ordinary division fence (with sliding gates, commonly called hurdle-gates), 
 with proper fastenings and farm cros.-,in>^s on the road for the use of the pro- 
 jirietors of the lands adjoining the railway ; and also cattle guards at all (2) 
 road crossings, suitable and sufficient to prevent cattle and other animals from 
 getting on the railway. 
 
 R. S. N. .S., ch. 53, sec. 16 (I). Same as (2uebec, excepting; (i) '• .Suit- 
 able gates." (2) '• public." 
 
 R. S. ^T.,ch. 130, sec. 32. .Same as sec. 30(1). Ontaiio. 
 R. .S. M., ch. 130, sec. 33. Same as sec. 30 (2). Onlaiio part (i). 
 N. 1!., 1891, ch. 18, sec. 22(1). " Sufficient fences oftlie lawful height 
 of four feet six inches shall be erected with gates, as hereinafter mentioned, 
 by the Company on each side of the railway as their rails are laid in con- 
 struction, and thereafter such fences shall be maintained by the Company at 
 their own cost and chaiges, with gates thereon at farm cios^ings oftliero.ad 
 for the use of the proprietors of the lands adjoining the railway, and also 
 cattle yards, at all road crossings, suitable and sufficient to prevent cattle anil 
 animals from getting on the railway." 
 
 N. 15., 1S91, ch. iS, sec. 22 (7). "During construction and until per- 
 manent fences have been erected as requireel by this section, it shall be the 
 duty of the Company to replace and ))ut up any line fences dividing adjoin- 
 ing occupiers which they may have taken down, removed or interfered with 
 in connection with the work. The fences shall be of such construction as 
 will keep out swine, sheep and cattle ; and if made of wire, the wires shall 
 not be more tli.an eight inches apart." Sec. 22 (2). " The ..'.\pression ' gates ' 
 shall be held to mean and shall in all cases imply swinging gales with 
 projier fa>tenings.'' 
 
 3. (^s amciidcl by 53 Vic.., ch. 28, icc. 2.) '"' If the company 
 omits to erect and complete us aforesaid any fence or cattle 
 guard, or if, after it i.s comiileled, tbe conipany neglects to main- 
 tain the same as aforesaid, and if, in con.-,eqi!ence K^i such omis- 
 sion or neglect, any animal gets upon tlie railway from an adjoin- 
 ing place where, under the circumstances, it might properly be, 
 then thv. company sliall be liable to the owner of every such 
 
 "■■•mt^an^ 
 
Dominion and Provincial Railway Acts. xci 
 
 animal for all damages in respect of it caused by any of the com- 
 pany's trains or engines ; and no animal allowed by law to run [J«j;°;;^itnlity 
 at large shall be held to be improperly on a place adjoinmg the .^„i„;.^is_ 
 railway, merely for the reason that the owner or occupant of such 
 place has not permitted it to be there." 
 
 K ."^ 0.,cli. 170, sec.30 (3). « Until nich fences and caUle i;uaids are 
 duly niade, the company shall be liable for all damages which may be done 
 by their trains or engines to cattle, horses or other animals on the railway. 
 
 R. S. Q., Art. 5171 (3). >Same as Ontario. 
 
 R. S. M., ch. 130, sec. 34. Same as Ontario. 
 
 N. B., 1891, ch. 18, sec. 2? (3). Same as Ontario. 
 
 R. S. N. S., ch. S3, sec. 16 (2). Same as Ontario. 
 
 195. If the land through or by Which the railway P'-^^ses is nme for con- 
 occupied at the time of theconstiuction of the railway opposite i^,,,| j^ qc- 
 thereto, the company shall make such fences, gates and cattle- cupied. 
 guards as they lay their rails. 
 
 N. B., 1S91, ch. 18, sec. 22 (7), See notes to sec. 194, Dominion Act 
 
 196. After such fences (gates) (i) and gtiards l^ave been When ^co;;^ 
 duly made and completed, and while they are duly maintained, e„,pted f,om. 
 no suchliabiUty shall accrue for any such damages, unless (the liability. 
 same are caused wilfully or negligently by the company or by its 
 employees). (2) 
 
 R. S. O., di. 170, sec. 30 (4).-(i) omitted, (2) '< unless negligently or 
 wilfully done." 
 
 R. S. Q., Art. S171 (4)- Same as Ontario. 
 
 R. S. M.,ch. 130, sec. 35. Same as Ontario. ■ -'i, <,„.,„. " 
 
 N B., 1S91, ch"! 18, sec. 22 (4)- ^ame as Ontario, excepting (I) "gates. 
 
 R. S. N. S., ch. 53, fee. 16 (3). Same as Ontario. 
 
 197. (M .v.rnch./ h' SS-h^ Vu.,c/u 27, sec. 6.) At every ^;«;•-i;;g^t 
 public road crossing at lail level of the railway, the knee on 
 
 both sides of the crossing and on both sides of the track shall be 
 turned in to llie cattle guards, so as to allow of the safe passage 
 
 of trains.'' 
 
 R S O ch 170, stc. 106. " At every road and farm crossing on thr 
 cn-adeof the naiUvkys in this Province, the crossings .hall be sulucuntly 
 fenced on both sides of such points, so as to allow the safe passage of 
 
 "IS. Q.?Art. 5159. Same ^s Ontario, excepting (i; a.kUiional, " without 
 danger to animals." 
 
 198. The persons for whose use farm crossings are ^^''''^'''^ "^^^ 
 shall keep the gates at eacn side of the railway closed when ,^. '^^^^^ 
 
 closed. 
 
' i' 
 
 'ii ' 
 
 I'M 
 
 I: '; 
 I' \i 
 
 1 i 
 
 xcu 
 
 The Railway Law ok Canada. 
 
 Penalty for 
 leaving gate 
 open. 
 
 not ill use ; and no person, any of wliose cattle are killed by 
 any train owing to the non-observance of this section, sliall have 
 any riglit of action against any company in respect to the same 
 being so killed. 
 
 lt)l), Kvery person who wilfully leaves any such gate open 
 without some ])erson being at or near it to prevent animals 
 from ])assing through it on to the railway, or whi takes down 
 any part of a railway fence, or turns any horse, cattle or other 
 animal u|)on or within the enclosure of such railway, is liable, 
 on summary convicii m, to a penalty of twenty dollars for each 
 offence, and is aUo liable to the railway company for any 
 damage to the projjerty of the company or for which tlie com- 
 pany is responsiI)le, by reason of such gate being so left open, 
 or by reason of such fence being so taken down, or by the turn- 
 ing upon or within the enclosure of such railway of any horse. 
 
 Company not ^^■^l[\^ q^ otlier animal ; and no i)erson, any of whose cattle are 
 
 liable in such ,.,,,, . . , ' , ■' ... 
 
 case. Killed by any tram owmg to tiie non-observance of tins section, 
 
 shall have any right of action against any company in respect to 
 
 the same being so killea. 
 
 INSPKITIOX OF RAILWAY BEFOkE Ol'ENINC. 
 
 Noiic<' to ^00. No railway, or portion of any railway, shall be opened 
 
 Railway ,. , , .■ r ■, , r 
 
 Comiuittee lor the public conveyance of passengers, until one month after 
 
 befi re railway notice in writing of tlie intention to open the same is given to the 
 
 is openeil. 
 
 Penalty for 
 non-com i>l i • 
 a nee. 
 
 (Minister) (i) by the company to which the railway belongs, 
 and until ten days after notice in writing is given to the 
 (Minister) (2) by the company, of the time when the railway or 
 l)ortion of railway will be, in the opinion of the company, 
 sufficiently completed for the safe conveyan >• of passengers, and 
 ready for inspection. 
 
 R. S. O., ch. 170, sec. k,2. — (1) " Commissioner of Public Works," (2) 
 " Commissioner." 
 
 R. S.Q., Art. 5184.— (I) (2) " A Railway Conmiitte' " 
 
 N. I!,, i89i,ch. 18, sec. 39. Same as Ontario, adding "Chief" l;efore 
 •' Commissioner." 
 
 R. S. N. .S., ch. 53, sec. 34. — (i) " Governor-in-Coiincil. (2) " Cover - 
 nor-in-Councll." 
 
 JiOl. If any railway or portion of a railway is opened with- 
 out such notices, the company to which such railway belongs 
 
 
^ 
 
 by 
 
 ave 
 imc 
 
 ten 
 lals 
 un 
 Iier 
 >Ic, 
 ich 
 my 
 )ni- 
 
 
 Dominion and Provincial Railway Acts. xciii 
 
 shall forfeit to Her Majesty the sum of two hundred dollars for 
 
 every day during which the same continues open, until the said 
 
 notices have been duly given and have expired. 
 
 K . S . O . , ch. 1 70, sec. 5 3. 
 K. .S. Q., Art. 5185. 
 N. 15., 1891, cli. 18, sec. 40. 
 R. S. N. S., ch. 53, sec. 35. 
 
 IiiO!3. The (Minister), (i) upon receiving such notification, Railway to be 
 
 shall direct one or more engineers (2) to examine tl;e railway '"^1'^*^' 
 
 proposed to be opened, and all bridges, culverts, tunnels, road 
 
 crossings and other works and appliances connected therewith, 
 
 and also all engines and other rolling stock intended to be used 
 
 thereon ; and if the inspecting engineer reports in v.'riting to the Postponement 
 
 CMinister) (?) tiiat, in his opinion, the opening ofthesame" ''f".'"^ 
 \ ' \''-' '_ ' ' . , report is un- 
 
 would be attended with danger to the public using the same, by favorable, 
 reason of the incompleteness of the works or permanent way or 
 of the insufficiency of the establishment for working such rail- 
 way, together with the ground of such opinion, the (Minister), 
 (4) with the sanction of the Governor in Council, — and so, from 
 time to time, as often as such engineer, after further inspection 
 thereof, reports to the like effect, — may order and direct the 
 company to which the railway belongs, to postpone such open- 
 ing for anytime not exceeding one month at any one time, until 
 it appears to the (Minister) (5) that such opening may take 
 place without danger to the public. 
 
 R. S. O., ch. 170, sec. 51. '' The Lieutenant Governor in Council may 
 appoint and aulluMi/<' iin> proper ))erson, or persons, not exceeding three in 
 nut l>ii, whose duty it s.hall be from time to time to inspect all railways 
 constructed or in couisc of constriction. ,ind es jry person so authorized may 
 at all reasonable times, nion jirodumig l:is authority, if required, enter upon 
 and examr <■ the r,iil\N,iy and the stations, fences or gates, read crossings, 
 cattle guaids, works, and buildings, and the engines, cars and carriages 
 l)elongivg thereto." 
 
 K. S. O. , ch. 170, sec. 54. " Ifth'- iiil«»v inspectors, after inspection of a 
 railway, repoii in writing to the Commissioner of Public \York3 that, in their 
 opinion, the opening ot the same would be attended with danger to the public 
 using tlu Name by reason of the incompleteness; of the works or permanent 
 way, orilu msittficiency of the establishment for working the railway, together 
 with the [;ic'unds of such opinion, tfie Commissioner of Pai)lic Works, with 
 thcMnction of tin 1 IcMen.nit tlovernor in Council, and so from time to time 
 as ot"ten as the ' n^pectots, after further inspection thereof, .so report, may 
 onier and direct ihe Company to which the r.Tilw.iv belongs to postpone the 
 (l|)ei>ing lor a period not exceeding one moiuh .u any one time, until it appears 
 to the Chief Commissioner of Public Works that such opening may take 
 place without tlniger to the public." 
 
.ii! 
 
 XCIV 
 
 The Railway Law of Canada. 
 
 R. S. Q., " Art. 5186. Samcas Dominion, excepting (i) ' Railw.-iy Com- 
 luiltee,' (2) ".ittaclied to the I )eparlment of Public Works," (3) (4) (S) 
 " Railway Committee." 
 
 N. 15., i89i,cli. 18, sees. (38), (41). Same as sees. (51), (54), Ontario, 
 adding word " Chief " before " Commissioner." 
 
 Tcnaliy for *iOli. If any railway or any portion thereof is opened contrary 
 
 ojiening con- to suci) order or direction of the (Minister), the company to 
 whom the raihvay belongs shall forfeit to Her Majesty the sum 
 of two hundred dollars for every day during which the same con- 
 tinues open contrary to such order or direction. 
 
 R. S. O., ch. 170, sec. 55. — (1) " Commissioner." 
 
 R. S. (J., Art. 5187.— (I) " Kailw.iy Committee." 
 
 N, n., i89i,ch. 18, sec. 42. — (i) '• Chief Commissioner of Public Works." 
 
 U. S. N. .S , ch. 55, sec. 37. — (1) "Governor in Council." 
 
 Order not 'i04. No such order shall be binding upon the company 
 
 b nding with unless a copy of the reijorl of the (in-ipecting engineer) (i) on 
 
 repori. which the order is founded is delivered to the company with 
 
 such order. 
 
 R. S. O., ch. 170, sec. 56. — (I) Inspectors. 
 R. .S, ()., Art. 5188. .Same as Dominion. 
 N. 1!., 1891, ch. 18, sec. 43. — (i) "inspectors." 
 R. S. N. .S., ch, 53, sec. 38. Same as Dominion. 
 
 INSPECTION Ol" RAILWAY OUT OF REPAIR — REPAIRS. 
 
 Proceedings J*05. Whenever the (Minister) (i) receives information to the 
 
 if part of rail- effect that any bridge, culvert, viaduct, tunnel or any other por- 
 way is out of . ^ '., . . , r 
 
 repair ^'°'^ *-"' ''^'^J' ''^luway, or any engnie, car or carriage used or for 
 
 use on any raihvay, is dangerous to the public using the same, 
 from want of repair, insufficient or erroneous construction, or 
 from any other cause, or whenever circumstances arise which, in 
 his opinion, render it expedient, he may direct one or more en- 
 gineers to examine and inspect the railway or any ])ortion thereof, 
 or of tlie works connected therewith, or the engines and other 
 rolling stock in use thereon, or any portion thereof, and, ui)on 
 the report of the inspecting engineer, may condemn the railway 
 or any portion thereof, or any of the rolling stock or other ap- 
 pliances used t'.iereon, and, with the approval of the (2) Governor 
 in Council, miy require any change or alteration therein or in 
 any part thereof, or the substitution of any new bridge, culvert, 
 Defects to be viaduct or tunnel, or of any material for the said railway ; and 
 made good, thereupon the company to which such raihvay belongs, or the 
 
 

 Dominion and Provincial Railway Acts. xcv 
 
 company using, running or controlling tlie same, shall, after 
 notice tliereof in writing, (3) proceed to make good or remedy 
 the defects in the said portions of the railway, or in the locomo- 
 tive, car or carriage which lias been so condemned, or make such 
 change, alteration or substitution as has been required by tiic 
 (Minister). (4) 
 
 N. li., iSgr, ch. 18, sec. 44., " When abridge, culvert, viaduct, tunnel, fcnce> 
 cittle guard, road crossing, or any ijortion of a railway construclcd or in 
 course of construction, or a locomotive, car or carriage used or for use on a 
 railway, lias been conclemned, on the report of an inspector, by the ( hief 
 Commissioner of Pul)lic Works, with the approval of the Lieutenant Gover- 
 nor in Council, the Com|)nny to which tlie railway l)elongs, or the Company 
 using, running, or conlrolhng the s-anie, shall, after such notice in wrilipf; 
 signed by the Chief Commissioner of l'ul>lic Works, proceid to make gc 'l 
 or remedy the defects in the said ])ortion of the railway, or in the locomotive 
 or carriage, which shall have been so condemned, and when any change or 
 any alteration in any railway, or any ]5art thereof, or the substitution of a new 
 bridge, culvert, viaduct, or tunnel, or of any material for the said railway has 
 been r^>quired liy the Cliief Commissioner of I'ubiic Works, as aforesaid, the 
 Company to which the railway belongs, or the Company using, running, or 
 controlling the same, shall make such change, alteration or substitution liere- 
 inljefore referred to, as has been required in the manner aforesaid by the Chief 
 Commissioner.'' 
 
 R. S. O., eh. 170, sec. 57. Same as New ISrunswick. 
 
 U. S. Q , Art. 5189. Same as Dominion, excepting (i) '' Railway Com- 
 mittee," (2) " Lieutenant," (3) " signed l)y the Chairman of the Committee, 
 and countersigned by the Secretary thcieof," (4) " Committee." 
 
 R. S. N. S., ch. S3, sec. 39 — d) " Governor in Council.'' (2) Signed by 
 the Commissioner ofl'uhlic Works and Mines." (4) " Go\e'-nor in Council." 
 
 20G. Whenever ihat portion of any railway which crosses or If railway is 
 is constructed upon or along any turnpike road, street o>" other °['^"|,J^^P|^^'' 
 public highway at rail level is out of repair, the chief officer of notice to be 
 the municipality, or other local division, having jurisdiction overS'^'*-""' 
 such highway, may serve a notice upon the company, in the usual 
 manner, requiring the repair to be forthwith made; and, if the 
 company does not forthwith make the same, such officer may 
 transmit a copy of the notice so served to the Minister ; and there- 
 upon the Minister shall, with all possible dispatch, appoint a day 
 for an examination into the matter ; and shall, by mail, give Pior°edings 
 notice to such chief officer and to the company of the day so 
 fi.ved. 
 
 R. S. O., ch. 170, sec. 67 (I). Where a level crossing or a railway is out of 
 repair, the (mayor, wardsin, reeve, or other chief oflicer) ((/) of the AEunici- 
 cipality (l) within whose jurisdiction the crossing is situate may serve a 
 notice upon the Company in the i >ual manner, requiring the repair to be forth- 
 with made, and if the Company does noi forthwith make the same, such 
 
 thereafter. 
 
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 XCVl 
 
 The Railway I, aw of Canada. 
 
 If 
 
 olTicer ma;' transmit a copy of the notice so served to ilie (Inspector of Rail- 
 way-). (2) anilt!:ereupon it shall he the duty of the (Inspector), (/') \\ ith all pos- 
 sible disjiatch, to appoint a (liiy when he will examine into the mailer, and (he) 
 
 (3) shall by mail give notice to tiie (mayor, warden, or proper officer), (4) and 
 to the Company, of the day lie so fixes, and upon the day named (he shall exam- 
 ine the crossinj,'), (5) and a certifiraie under his hand shall be final upon the 
 subject so in(li!-i)Ute between the parties, and if the Inspector determines that 
 any repairs are recjuired, he shall specify the nature thereof in his certificite, 
 and direct the Company to make the same, and the Company shall thereupon, 
 with all pos>il)le dispatch, comply with the requirements of tlic certificate, 
 and in case of default, the munici])ality (6) within whose jurisdiction the said 
 crossing is situate may make the repairs and may recover all costs, expenses 
 and outlays in the premises by action against the Company in any Court of 
 compelf nt jurisdiction as money i)aid to the Comjiany's use, 
 
 (2) Neither this section, nor any proceeding liad thereunder, shall at all 
 affect any liability oihetwise attaching to the Company in the premises. 
 
 K. S. Q., Art. 5196. Same as Ontario, excepting (I) "or other local 
 division," (2) '■ Secretary of the Railway Committee," (3) '• the Committee," 
 
 (4) " chief otiicer," (5) ''such crossing shall be examined by an engineer 
 appointed by the Radway Committee," (6) '• or other local division," (a) 
 " chief officer." 
 
 N. H., 1891, ch. 18, sec. 54. Same as Ontario. 
 
 1\. S. N. S., ch. 53, sec. 46. Same as Quebec, excepting (2) '' Commis- 
 sioner of Public Works." {b) Governor in Council," 
 
 Inspection !307. Upon ihe day so named the said portion of the railway 
 
 and proceed- g]j^|i jjg examined by the engineer directed by the Minister to 
 mgs there- . . . . 
 
 make such examination, and any certificate under his hand shall 
 
 be final on the subject so in dispute between the parties; and, if 
 
 the inspecting engineer determines that any repairs are required, 
 
 he shall specify the nature thereof in his certificate, and direct the 
 
 company to make the same ; and the company shall thereupon, 
 
 with all possible despatch, comply with the requirements of such 
 
 certificate. 
 
 upon. 
 
 R. S. 0.,ch. 170, sec. 67 (I). 
 R. S. Q., Art. 5196. 
 N. B., 1891, ch. 18, sec. 54. 
 R. S. N. S.jCh. 53, sec. 46. 
 
 }- See under sec. 206 of Dominion Act. 
 
 I'rovis'on if !i08. In case of default, the proper authority in the munici- 
 the company pality or Other local division, within whose jurisdiction the said 
 makes de- portion of the railway is situate, may make such repairs, and may 
 recover all costs, expenses and outlays in the premises, by action 
 against the company in any court of competent jurisdiction, as 
 money paid to tuc company's use ; but neither this section nor 
 any proceeding had thereunder shall at all affect any liability 
 otherwise attaching to such company in the premises. 
 
 in 
 
Dominion anij 1'uovinliai- Railway Acts. 
 
 xcvii 
 
 '. S.-P 
 
 R. S. O , ch. 170, sec. 67 (I). 
 
 K. S. (X.Alt. S106. I e 1 - £ ri, ■ • A . 
 
 M II .u . ,1 .u „ , ;■ See iiiuler sec. 206 of Dominion Act. 
 N. H., i,Sgl,ch. IS, sec, 54. i 
 
 k. S. N. .S., ell. 53. sec. 46. ) 
 
 ^09. The (Minister or any inspecting engineer), (i) may (2) Uegulation of 
 limit tiie number (uf times) (3) or rate of speed of rii'Tiiog oftrahis^etc. 
 trains or vehicle:^, upon any railway or portion of railway, until 
 such alterations or repairs as lie thinks sufficient liave been made 
 (or until such time as he thinks prudent) ; (<?) and thecomi)any 
 owning, running or using such railway shall forthwith coni|)ly 
 with any such older of the (Minister or an inspecting engineer), 
 (4) upon notice tliereof as aforesaid ; and for every act of non- Penalty. 
 compliance therewith, such company sliall forfeit to Her Majesty 
 the sum of two thousand dollars. 
 
 R. .S. O., ell. 170, sec. 6(1. — (i) " Commissioner of Public Works," (2) 
 •' witli the sanction of tlie Lieutenant Governor in Council," (3) "or times," 
 (4) " Inspector or of tlie Commissioner." 
 
 R. S. Q., Art. 5197. — (i) " Railway Committee or the inspecting engi- 
 neer," (4) " Railway Committee or inspecting engineer." 
 
 N. H., i89l,cli. 18, sec, 47. Same as Ontario, excepting (rt) omitted. 
 
 R. S. N. S., ch. 53, sec. 47. — (i), (2) " Governor in Council or inspecting 
 engineer or enginee.s. 
 
 ^10. If, in the opinion of any (inspecting engineer), (1) it is Running of 
 
 dangerous for trains or vehicles to i)ass over any railway, or"''"!'?, ""^y. 
 ° .... prohibited in 
 
 any portion thereof, until alterations, substitutions or repairs are case of dan- 
 made thereon, or that any particular car, carriage or iocomo-B^'- 
 tive should be run or used, the said (engineer) (2) may forth- 
 with forbid the running of any train or vehicle over such railway 
 or portion of railway, or the running or u>ing of any such car, 
 carriage or locomotive, by delivering or causing to be delivered 
 to the president, managing director or secretary or superin- 
 tendent of the com])any owning, running or using such railway, 
 or to any officer haxing the management or the control of the 
 running of trains on such railway, a notice in writing to that 
 effect, with his reasons tiierefor, in wliich he shall distinctly 
 point out the defects or the nature of the danger to be appre. 
 hcnded (and for every act of non-compliance tlierewith such Penalty, 
 company shall forfeit to Her Majesty the sum of two thousand 
 dollars). (3) 
 
 R. S. O., ch. 170, sec. 58. — (i) " Railway Inspectors," (2) " Inspector," 
 (3) omitted. 
 
 R. S. Q., Art. 5190. San 1^ s Dominion, excepting (3) omitted. 
 N. 15, iSgijch. IS, sec. 45. 
 
 R. S. N. S.,ch. 53, sec. 40. — (i) " .Such engineer," (3) omitted. 
 
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XCVllI 
 
 The Railway Law of Canada. 
 
 Report and liill. The (inspecting engineer) (i) shall forthwith report 
 action tliercon. j|,g g^^^ ^^ ^j^^ (Minister), (a) who, with the sanction of the 
 
 Governor in Council, may either confirm, modify or disallow the 
 actor Older of the inspecting engineer ; and notice of such con- 
 firmation, modification or disallowance shall be duly given to the 
 company affected thereby. 
 
 R. S. O., ch. 170, sec. 59.— (1) " Inspector," (2) " Commissioner of 
 Public Works." 
 
 R. S. Q., Art. 5191.— (2) " Railway Committee." 
 
 N. IJ., iSgijCh. 18, sec. 46. Same as Ontario. 
 
 R. S. N. S., ch. 53. sec. 41 — (2), '« Governor in Council." 
 
 m '• 
 
 PROOF OF PROCF.F.DINGS AT MEETINGS — NOTICES. 
 
 Copies of 311i. Copies of the minutes of proceedings and resolutions 
 
 c'videncV" °^ ^''^ shareholders of the company, at any (annual) (a) or 
 special meeting, and of the minutes of proceedings and resolu- 
 tions of the directors, at their meetings, extracted from the minute 
 books kept by the secretary of the company, and by him certified 
 to be true copies extracted from such minute books, shall be (i) 
 evidence of such proceedings and resolutions in any court. (1) 
 
 R. S. O,, cli. 170, SIC. 40(3). (I) " Prima facie,''' (2) " of civil juris- 
 diction," (rt) " general."' 
 
 R. .S. Q., Art. 5139 (31. — .Same asjUominion, excepting (a) " general." 
 R. S. M.,ch. 130, sec. loo. Same as Ontario. 
 N. H., 1891, ch. 18, sec. 31 (3). Same as Ontario. 
 R. S. N. S., ch. 53, sec. 24 (3).— (i) " General." 
 
 Notice by sec- 313. All notices given by the secretary of the company, by 
 
 retary valid, p^der of the directors, shall be deemed notices by the directors 
 
 and the company. 
 
 R. S. O., ch. 170, sec. 40 (4). 
 R. S.g., Art. 5139 (4). 
 R. S. M., ch. 130, sec. loi. 
 N. 1!., 1891, cli. 18, sec. 31 (4). 
 R. S. N. S.,ch. 53, sec. 24 (4). 
 
 nv-LAWS, RULES AND REGULATIONS. 
 
 Company may 314. The cotiijiany may, subject to the jirovisions and 
 make ^y-'aws jj.jj,jjq„5; j„ )i,js ^nd in the special Act contained, make by- 
 for certain 1 • x- 1 r n • . • 
 
 purposes. laws, rules or regulations for the following purposes, that is to 
 
 say : — 
 Speed, etc. (a) For regulating the mode by which, and the speed at 
 
 which carriages using the railway are to be moved or propelled ; 
 
 5!* 
 
Dominion and Provincial Railway Acts 
 
 xcix 
 
 ort 
 the 
 the 
 ;on- 
 the 
 
 {b) For regulating the hours of the arrival and departure of Time, 
 any sucli carriages ; 
 
 (<•) For regulating the loading or unloading of such carriages, Loads, 
 and the weights wiiich they are respectively to carry ; 
 
 . (</) For regulating the receipt and delivery of goods and Goals, 
 other things wiiich are to Ije conveyed ujion such carriages ; 
 
 (<f) For preventing the smoking of tobacco, and tlie com- Nuisances, 
 mission of any other nuisance in or upon such carriages, or in 
 any of the stations or premises occupied by the company ; 
 
 (/■) For regulating the travelling upon, or the using or work- Useofrai' 
 ing of, the railway : ^^^^ 
 
 (g) For regulating the conduct of the officers, servants and Conduct of 
 employees of the company ; and — oicei^, etc. 
 
 (^) I''or providing for the due management of the affairs of Management, 
 the company in all respects wliatsoever. 
 
 R. .S, O., cli. 170, sec. 87. Kvcry Railway Connwny shall make such 
 by-laws, rules and regulations, to be observed by the conductors, enj;ine 
 drivers, and other ofTicers and servants of the Company, and by all other 
 Companiesand persons using the railway of such Company, and such regula- 
 tions in regard to the Construction of the carriages and other vehicles to be 
 used in the trains on the railway of the Company, as are requisite for ensur- 
 ing the perfect carrying into elfect of the provisions of this part of this Act, 
 and the orders and regulations of the (l.ii'Uienant (jovernor in Council), (i) 
 
 R. S. Q. Art. 5140 (I). Same as Ontario. 
 
 N. 1!., 1891, ch. 18, sec. 6S. Same as Ontario. 
 
 R. S. N. S., oil. 53, sec. 60 (l). Same as Ontario. 
 
 215. The company may, for better enforcing the observ- Penalty for 
 ante of any such by-law, rule or regulation, thereby prescribe ajj'y.i^*^'" " 
 ])enalty not exceeding fi)rty dollars for any violation thereof, 
 
 R. S. O., ch. 170, sec. 88. " .\ny Railway Company may, by a by-law^ 
 impose upon :.ny officer, person or servant, who, Iwfore the contravention of 
 such bylaw, has had notice iherei f, and is employed by the company, a 
 forfeiture to the company df not less than thirty days' pay of such officer or 
 servant, for any contravention of such by-laws, and may -.etain such forfeiture 
 out of tile salary or wages of theoflem'.. r." 
 
 K. S. <J., Art. 5141. Same as sec. 88 of Ontario. 
 
 R.S. (^), Art. 5140 (4). " .Any of the conductors, engine-drivers, and 
 other officeiSnnd servants of the conijiany or other railway companies iisint; 
 any railway otiending against any such by-law, shall forfeit, for every such 
 otTence. a sum not exceeding $40 ; such forfeiture to be imjiosed by the com- 
 pany in such by-law, as a penalty for every such offiince." 
 
 R. S. (J., Art. 5140 (5). " If the infraction or non-observance of any such 
 by-law, by any of the classes in the next preceding paragraph mentioned, be 
 attended with danger or annoyance to the public, or hindiance to the com- 
 pany in the lawful use of the railway, it shall b- lawful for the company 
 
 i-, 
 ■I 
 
The Railway Law of Canada. 
 
 Form of by- 
 laws. 
 
 Sanction. 
 
 Publicntion. 
 
 » I 
 
 summarily to interfere, using no violence or unnecessary force, to obviate or 
 remove sucli danger, annoyance or hindrance, and that without Drejudice to 
 any penalty incuired by the infraction of any such by-law.'' 
 
 K. S. N. S., ch. 53, sec. 60 (4). Same as (^ueUc. Sees. 5/40 (4>. 5140 
 (5). 
 
 till*. All hy-laws, rules and regulations of the company shall 
 be reduced to writing, be signed by the chairman or persoii 
 presiding at the meeting at wliic h they are adopted (have afti.\e(l 
 thereto the common seal of the company), (i) and be kept in the 
 ofticeofthe company. 
 
 R. S. O., ch. 170, fee. 40 (I).— (1) omitted. 
 
 R. S. ()., Art. 5139 (I). Same as Dominion. 
 
 R. S. Q., Art. 5140 (j;). Same as Uorninion. 
 
 R. S. M., ch. 130, sec. 98. Same astintaiio. 
 
 N. H., l8gi,ch. iS, sec. 31. Same as Ontario. 
 
 R. S. N. S., ch. 53, sec. 60 (3), sec. 24 (1).— (I) omitted. 
 
 I<il'7- Ail such by-laws, rules and regulations shall be sub- 
 milted from time lo tiitie to tlie (Cjovernor in Council) (i) for 
 approval (and no such by-laws, rule or regulation shall have any 
 force or effect until it is approved by the Governor in Coun- 
 
 Cil).(2) 
 
 R.S.O., ch. 170, sec. .\o (2). — (1) " Lieutenant Governor in Council,"' 
 (2) omitted. 
 
 R. S. (J., Art. 5139(2). Same as Ontaiio. 
 
 R. S. (J., Art. 5140 (6). .Same as Ontario. 
 
 R. S. M., ch. 130, sec. 99. Same as Ontario. 
 
 N. IJ., 1891, ch. 18, sec. 31 (2). Same .ns Ontario. 
 
 R. S. N. S.,ch. 53,ser. 24 (2). Same as Dominion, excepting (2) omitted. 
 
 JilH. A ])rinled copy of so much of any by-law. rule or 
 regulation as affects any person other than the (shareholders or 
 the officers, seivants or employees) (1) of the company, shall be 
 openly afhxcd (and ke|)t aftixed to a conspicuous j'art of every 
 station belonging to the company, and so as to give public notice 
 thereof to the persons interested therein or affected thereby : and 
 in tlie I'roviiice of Quebec such notice shall be published both in 
 the Kngiisii and French languages). (2) 
 
 R. S. O , ch. 170, sec. 40 (I). — (1) " ntinlieis iir servants." (2) substitute 
 •' in all anil every passenger car, and in all and every place where toll:- are to 
 be gatheieil, ami in like manner >o often as any cli.mge or alteration is made 
 in the same.'' 
 
 R. S. (.».,.\rt. 5139 (l). Same as Ontario, sec. 40 (I). 
 
 R. S. M., ch. 170, sec. gS. Same as Ontario, sec. 40 (I). 
 
 N. \^ , 1891. ch. 18, sec. 31. 
 
Dominion and Provincial Railway Acts. 
 
 ci 
 
 K. S. <J., Alt. 5140 (7). " I'he substance of any sncli liy law, xvlion 
 apjuoved as at'ore>aiil, if it affect any officer or seivr.nt of the company, may 
 1)0 proved by judvimi; the (loliwry of a cojiy to or its receipt by such officer 
 or servant, ar.il if it altjct .my oUier railway compmy tisinj; the railway, 
 it shall he p.iinti rl on bonitis, or piinteil on p.-^per ami pasted on hoards, and 
 iiunj; up and affixed ami conlinueil on the front or other c iiispiciioiii part of 
 every wliarfor station l>elon<^iin; to the company, accordiiii^ to the nature or 
 suliject matter of such by laws lespeciively. and so as to ^ive puhhc notice 
 thereof to the persons interested therein or alfected thereby. 
 
 •• Such hoards shall lie from time to time .enewed as often as the by-laws 
 thereon or any pait thereof ^hall be obliterated or destroyed. 
 
 •• No penalty imposed by any such hydaws shall be recoveralde unless 
 the same shall have l)een puldiNlied and ke])' |uil)lished in manner aforesaid." 
 
 R. S. N. S. , ch 53, sec. 24 (i). .Same as Ontario. 
 
 5J19. A printed copy of so nuich of any i)V-law, rule or order rublication 
 as relates to the condtict of or affects the officers, servants oraffectinli^em- 
 employees of the company, shall lie given to every officer, servant ployees. 
 and employee of the company thereby affected ; and in liie Pro- 
 vince of (Quebec stich notice shall be i)iiblished botii in the 
 l-aiglish and Frencii languages. 
 
 K. S. O.jCh. 170, sec. 89. The notice of the bydaw, or of any order or 
 notice of the (Commissioner of I'ulilic Works) (1) may be proved by proving 
 the delivery of a copy thereof to the officer, servant, or person, or that he has 
 signed a copy theieof, or that a copy thereof was posted in some place where 
 his work or his duties, or some of them, were to be performed. 
 
 R. S. tj.. Art. 5142. Same as Ontaiio, excepting (I) '• Railway Com- 
 mittee or lns|H;eting Knuineer ". 
 
 N . IJ., 1891. ch. 18, sec. 69. Same as Ontario. 
 
 k. S. N. S.. ch. 5;, sec. 52. Same as Ontario, excepting (1) " (i(jvernor- 
 in Council or Inspectip;^ Engineer or Engineers." 
 
 !it20. Such by laws, rules and regulations, wlien soc )nfirmed, Who shall be 
 
 shall be binding upon an 1 observed by all persons, (1) and shall [^"""'J.J'^ ^"'^'^ 
 
 be stitficient to justify all persons acting thereunder. 
 
 R. .S. (J., .\rt. 5140 (S). — (i; '-mentioned in the fourth par.igraph of iii.s 
 article." 
 
 'i*-il.. If the violation or non-observance of any such by-law Summary in- 
 
 (i) (rule or regulation) (2) is attended with dan 'cr or annoyance ''^'^''^''.*"'^^ '" 
 ^ . . ^ . certam cases, 
 
 to the public, or hindrance to the company in the lawful use of 
 
 the railway, the company may summarily interfere, (3) to 
 
 obviate or remove such danger, annoyance or hindrance, and 
 
 without prejudice to any penalty incurred by the violation of such 
 
 by-law, rule or regulation. 
 
 R. S. Q., ,\rt. 5140 (5). — (I) " by any of the classes in the ne> t preceding 
 paragraph mentioned," (2) omitted, (3) "using no violence or unneces- 
 sary force.*' 
 
 m 
 
 1 
 
iii 
 
 I'' 
 
 ill 
 
 VI 
 
 i' 'i 
 
 li 
 
 cii 
 
 'iiiK Railway Law ok Canada. 
 
 See iiinlcr sec. 219 supra. 
 
 Tolls, iiovv 
 fixed. 
 
 Cerufieil copy Q2»>. \ eopy of any by-law, rule or rci'iiliilion ccrtitied as 
 to be evidence. .,.,•, ,1 1 n 1 
 
 correct by the presiueiit or secretary ol tlie company shall be 
 
 evidence thereof in any court. 
 
 K. s. o. -v 
 K. .S. (J. I 
 N. H. C 
 
 K. S.N. S. ) 
 
 TOLLS. 
 
 «!2<$. .Sui)ject to the i)rovisions and restrictions in this and in 
 the si)eciai Act contained, the comjjany may, i)y by-laws, or 
 the directors, if thereunto authorized by the by-laws, may, 
 from time to time, fi.\ and regulate the tolls to be demanded and 
 taken for all passengers and goods transjjorted upon the lailway^ 
 or in steam vessels belonging to the com|)any. 
 
 K. S. O., ch. 170, sec. 31 (1). •• 'I'olls shall Ik; from lime to time 
 fixed and rcjjulated by the by-laws nf the company, or by the directors, if 
 thereunto authorized l>y tlic liy-laws, or by tin- shareholders at any j,'cncral 
 mectinj;, and may Ir; tlemanded and received for all ))asbeni;ers and jjoods 
 transported upun the railway, or in the steam ve>stls to I he undertakinu 
 belonging, and shall be paid to such persons and at such places near to tlie 
 railway, in such manner and under such regulations as the bydaws direct." 
 
 K. S. (J., Art. 5172 (i;. Same as Ontario. 
 
 K. S. M.I ch. 130, sec. 39. Same as Ontario. 
 
 N. 15., 1S91, ch. 18, sec. 2? 
 
 R. S. N. S.. ch. 12)^ sec. i; '). Same as Ontario. 
 
 !!234. Such lolls may be fixed cither for the whole or for any 
 particular portions of the railway ; but all such tolls shall always, 
 under the same circumstances, be charged equally to all persons, 
 and at the same rale, whether per ton, per mile or otherwise, in 
 respect of all passengers and goods and railway carriages of the 
 same description, and conveyed or propelled by a like railway 
 carriage or engine, passing only over the same portion of the line 
 of railway ; and no reduction or advance in any such tolls shall 
 be made, either directly or indirectly, in favor of or against any 
 l)articular company or person travelling upon or using the rail- 
 way. 
 
 K. S. O., ch. 170, sec. 31 (6). All or any of the tolls may by by-law be 
 reduced and again raised as often as deemed necessary for the interests of the 
 imdertaking, but tlie same tolls shall be ])ayable at the same time and under 
 the same circumstances ujjon all goods p.iul l)y all persons, so that no undue 
 advantage, privilege or monopoly may hn afforded to any person or class of 
 persons Ijy any by-laws relating to the tolls. 
 
 K. S. Q.. Alt. 5172 (6). Same as Ontario. 
 
 R. S. M., ch. 130, tec. 44. Same as Ontario. 
 
 N. li., 1891, ch. 18, sec. 23 (6). Same as Ontario. 
 
 R. S. N. S., ch. S3, sec. 17 (6). Same as Ontario. 
 
 No discrimi- 
 nation to be 
 made. 
 
 41 
 
Dominion and Provincjai. Railway Aris. 
 
 cm 
 
 as 
 be 
 
 111 
 or 
 
 53Ji5. The tolls fixed lor large quantities or lony dislaiu es Special rates, 
 maybe pro])orlioiiately less than the tolls fixed lor small (Hiantities 
 or short distances, if such tolls are, under the same circumstances, 
 charged eciually !o all i)ersons ; but in resi)e(:t of ([uantity, no 
 special toll or rate shall be given or fixed for any (juantity less 
 than one car load of at least ten tons. 
 
 ^I!20. 'I'he company, in fixing or regulating the tolls to be Classification 
 demanded and taken for the transportation of goods, shall, except ° "'"''^ "' 
 in respect to through traffic to or from the United States, adopt 
 and conform to any uniform classification of freight which the 
 Governor in Council on the rejjort of the Minister, from time to 
 time, prescribes. 
 
 '4*^7- No tolls shall be levied or taken until the bylaw fixing Tolls to Ik: 
 
 such tolls has been approved of by the (i) Governor in Council) ff'^'f"^'^'* ('X 
 
 . < lovi-riior ui 
 
 nor imtil after two weekly pubiirations m the {Cit//ai/ii) (2) Council. 
 
 Gazette of siicii by-law and of the Order in Council approving 
 
 thereof (nor shall any company levy or colled any money for Tolls for ser- 
 
 services as a common carrier except subject to the provisions of ^'^'^ as com 
 
 ' ■* ' inon carrier, 
 
 this Act). (3) 
 
 R. S. O., ch. 170, sec. 31 (9).— f I) "Lieutenant," (2) "Ontario," (3) 
 oniitteil. 
 
 k. .S. (J., .\rt. 5172 (9).— (I) " Lieulenanl," (2> "Quebec," (3; 
 omitted. 
 
 R. .S. M.,cli. 130, sec. 47. — (I) "Lieutenant," (2) "Manitoba," (3; 
 omitted. 
 
 N. 15. , 1S91, ch. iS, sec. 23 (9).— (I) "Lieutenant," (2) "Royal," 
 (3) omitted. 
 
 K. S. N. S., ch. 53, sec. 17 (9). .Same as N.B. 
 
 5i28. Every by-law fixing and regulating tolls shall be subject Uevisiun of 
 to revision by the (1) Governor in Council, from time to time, ')' I'l"' fixing 
 after approval tliereof; and after an Order in Council (altering) 
 \a) the tolls fixed and regulated by any by-law, has been twice 
 published in the (CaiiaJa) (2) Gazette, tne tolls mentioned in 
 such Order in Council shall be substituted for those mentioned in 
 the by-law, so long as the Order in Council remains unrevoked. 
 
 R. S.O,. ch. 170, sec. 31 (lo».— (l; '• Lieuten.ml," (2) -Ontario," 
 (<j) " reilucin^'." 
 
 R. S. O., ch. 170, sec. 31 (II). The Legislature may frorii time to time 
 retluce the tolls upon the railway, but not without the consent 'jf the Company, 
 so as to produce less than fifteen jier cent, per annum profit on the ca|)ilal 
 HCtually expended in its construction, nor uidess, on an examination made by 
 
CIV 
 
 TiiK Kaii.wav Law of Canada. 
 
 llic'( liipf ('oiiitnisfioiici- (if Pnlilic Works i>f tlie amount receivcl Jirifl expended 
 liy tlif fomiiany, the not incoTnr from all -oiirci's feu the year llien last jnsl 
 is found to have cvceedi-d fifteen per cent, upon llie capital so actually 
 t'\pen(led. 
 
 K. S. O., di. 170, sec. ;i (12). The liylaws of every l<:iil\vay Company, 
 heretofore or hereafter Incorporated, re^inlalinj.; llie tolls lo l)e taken »)n »ucli 
 road, in the special Act respectinj: which a provision has lieeii inseited, that 
 •such railway should he suhject lo the provisions of any ({eneial Act relating to 
 railways, shall lie sui'jecl to the approval of the Lieutenant tloveinor in 
 t-'ouncil : and no hy-law of any Railway (,'ompany in this Province, by whicii 
 tidls are to U- iniposeil or altered, or Uy which any l)ariy, other than the mem • 
 bers. ofhcers anil servants of the Company, are intendtd to be bound, shall 
 have any force or etfect iiniil the same has been approved ancj sanctioned l)y 
 the Lieutenant (iovernor in Council. 
 
 K. S. (J., .Art. 5172 (H)|._(i) "Lieutenant," (<i ) ''reducing,"' (2) 
 " <Juel)ec." 
 
 K. S. (^)., .Art. 5172 (III. Same as Ontario, sec. 31 (II). 
 
 k. S. ()., ;\ri. 5172 (12). " No by law of any railway coiiipanv. by which 
 any tolls are to Ik; imposed or altered, or by which any ]ierson, other than 
 the niember.s, oflicers and servants of the company, are intended to be bound, 
 shall have any force or effect until the same has l)een a])proved and sanctioned 
 by the Lieutenantijovernor in Council.'' 
 
 R. S. M., ch. 130, sec. 48.— (I) " Lieutenant," (<») " reducing," (2) 
 '* Manitoba." 
 
 R. S. M., ch. 130, sec. 49. Same as Ontario, sec. 31 (12). 
 
 N. H., 1891, ch. 18, sec. 23(10).— (I) " Lieutenant," ((j) "reducing," 
 (2) " Royal." 
 
 Same as Ontario, sec. 31 (li). 
 Same as Ontario, sec. 31 (12). 
 .Same as Ontario, sec. 31 (to), excepting 
 
 N. H., i«9i,ch. 18, sec. 23 (11). 
 N. H., 1891. ch. iS, sec. 23 (I2), 
 R. S. N. S., ch. 53, sec. 17 (10). 
 (2) "Royal." 
 
 Fractions, 
 how estimated 
 
 Tariff to be 
 posted lip. 
 
 t229- In all cases, a fraction in tlie distance over wiiicli goods 
 or passengers are transported on the railway shall be considered 
 as a whole mile ; and for a fraction of a ton in the weight of any 
 goods, a proportion of the tolls shall be demanded and taken 
 (according to the number of quarters of a ton contained therein, 
 and a fraction of a qi: rter of a ton shall be deemed and consi- 
 dered as a whole quarter of a ton), (i) 
 
 R. S. O., ch. 170, sec. 31 (7). 
 
 R.S. (J., Art. 5172(7). 
 
 R. S. M., ch. 130, sec. 45. 
 
 N. 15., 1S91, ch. 18, sec. 23 (7). (1) substitute "but no fraction of a ton 
 shall l)e deemed or considered to l)e less than one hundred pounds avoirdu- 
 poids." 
 
 R. S. N. S., ch. 53, sec. 17 (7). Same as Dominion. 
 
 ^I{0. The (company) (i) shall, from time to time, cause to 
 be printed and posted up in its offices, and in every place where 
 the tolls are to be collected (in some conspicuous position), (2) 
 a printed board or paper, exhibiting (</) all the rates of tolls 
 
 I 
 
Dominion and Provincial Railway Acts. 
 
 cv 
 
 payable, and particularizinc the price or sum of money lo he 
 cliargcd or taken for the carriage of any muter or thing. 
 
 R. S. O., ch. 170. sec. 31 (8).-{l) " directors," (2) '• ami in eve.y i-as- 
 seiicer car, in some conspicuous place there." , ■• i- 1 •- 
 
 R. S. tj, Art. 5172 (8). (I) "directors," (") "in trench and I'.nululi. 
 R k.M., ch. i',o, sec. 46. Same as Ontario. 
 N. I!., 1891. ch. 18, sec. 23 (S).-(i) " directors. • 
 R. S. N. S., ch. 53, sec. 17 (8).— (I) '-directors. 
 
 '>:U. Such tolls shall be paid to such persons and al ^i"^'' ^hllm ply- 
 places, near to the railway, in such manner and under such regu- j^,,,^, 
 lations as the by-laws direct. 
 
 R. S. c). 
 R. S. (,). 
 R. S. M. 
 N. H. 
 R. S. N. S. 
 
 I 
 
 See under sec. 224 fit/na of Dominion .Xct. 
 
 2',i2 No company, in fixing any toll or rate, shall, under like J|'i-^<=""""'*- 
 conditions and circumstances, make any unjust or partial dis- 
 crimination between different localities ; but no discrimination When allow- 
 between localities, which, by reason of competition by water or '^ 
 railsvay, it is necessary to make to secure traffic, shall be deemed 
 to be unjust or partial. 
 
 2»3. No C'jmpany shall make or give any secret special to"- ^oje^ret^^^ 
 rate, rebate, drawback or concession to any person ; and every ^^^ ^^ gj^.^n, 
 company shall, on the demand of any person, make known to 
 him any special rate, rebate, drawback or concession, given to 
 anyone. 
 
 "^'34:. In case of denial or neglect of payment on demand of Enforcement 
 
 any such tolls, or any part tiiereof, the same shall be recoverable^^ P^^y"'^"^ ° 
 
 in any court of competent jurisdiction ; or the agents or servants 
 
 of the company may seize the goods for or in respect whereof 
 
 such tolls are payable, and may detain the same until payment 
 
 thereof, and in the meantime the said goods shall be at the risk 
 
 of the owners thereof. 
 
 R. S.O., ch. 170, sec. 31 (2). 
 R. S. Q., Art. 5172 (2). 
 R. S. M., ch. 130, sec. 40. 
 N. B., 1891, ch. 18. sec. 23 (2). 
 R. S. N. S., ch. 53, sec. 17 (2). 
 
 •■t 
 
 I -.i 
 
CVl 
 
 'riiK Ram. WAV 1,a\v or Canai>a. 
 
 Sale of ^;<)(kIs 
 in dtfauli of 
 payniciii. 
 
 i I 
 
 Sale of un- 
 claimed 
 jjoods. 
 
 Apiilication 
 of proceeds. 
 
 Disposal of 
 
 unclninicd 
 
 balanie. 
 
 *m!i. If the tolls arc not i)aid within six weeks, the company 
 may sell {it) the wlioie or any part ol such goods, and nut of the 
 money arising from such sale retain tiie tolls payaWlc, and all 
 (reasonahic) (i) charges and expenses of siicii seizure, detention 
 and sale, and shall deliver the surplus, if any, or such of the 
 goods as remain unsold, to the person entitled thereto. {2) 
 
 R. S. O., cii. ijo.sec. 31 (3).— (l> omiltetl. 
 
 k. S. (,)., .\rt. 5172 (3).— (I) onmutl. 
 
 R. S. M., cii, 130, sec. 41. — (I) omitti'd. 
 
 N. II., i.S.d. ch, 18. Kc. 23 (3). ((I) " Ify public auction, afloi six days 
 )iublic notice," (I) omitted, (2) l)Ut in case ol" perishable jjoods the same 
 may U- sold holoie the expiration of si.s weeks, and upon leasoi.ablc notice." 
 
 U. .S. N. .S.,ch. 53, sec. 17 (3). — Same as Dominion, excepting {/') "on 
 publishing; an advv.ilisement of such s.\le for one wiek in any n(\v>pa|ier, 
 puldislud nearest to the station where the lolls are payable,'' (l; omitted. 
 
 !:ii{(>. If any goods remain in liie possession of the coinp.iny 
 unclaimed for the space of twelve nioiitiis, tiie company in. ly there- 
 after, and on giving; |)ul)lic notice lliereof by advertisement, for 
 six weeks, in the (C/AV/i// Gazi-tti- of the I'rovince in which sucii 
 goods are) (i ) (and in sucii other newspapers as it tleems neces- 
 sary) {2) sell such goods by puiilic auction, at a time and place 
 which shall be mentioned in such advertisement, and, out of tiie 
 proceeds thereof, pay such tolls and all reasonai)le charges for 
 storing, advertising and selling such goods; and the balance of 
 the ])r()ceeds, if any, shall l)e kept by the comjiany for a further 
 perio 1 of three months, to be paid over to any person entitled 
 thereto. 
 
 R. S. O., ch. 170, sec. 31 (4).— (I) "Ontario." 
 
 R. S. (,)., Art. 5172 (4),— (2) omitted. 
 
 R. S. M.. ch. 130. sec. 42. — (I J '• Mtiiiiiofxi GazctteP 
 
 N. »., iSiji, ch. 18, sec. 23 (4).— (I) " Ro\,tl Gazette" 
 
 R. S. N. S., ch. 53, sec. 17 (4J. Same as N.li. 
 
 ^i,Wi. In default of such balance being claimed before the ex- 
 piration of the i)eriod last aforesaid, the same shall be paiil over 
 to the (.Minister of Finance and Receiver General for tlie public 
 uses of Canada) (i) until claimed by the person entitled Uiereto. 
 
 R. S. C)., ch. 170, sec. 31 (5(. — (i) " Provincial Treasurer to be applied to 
 the j,'eneral purposes of the I'rovince." 
 
 R. S. (^)., Art. 5172 (5). S£.me as Ontario. 
 
 R. S. M., ch. 130, .sec. 43. Same as Ontario. 
 
 N. H., 189I, ch. iS, sec. 23 (5). — (I) " Receiver General to be applied to 
 the general purposes of the I'rovince.'' 
 
 R. S. N. S., ch. S3, sec. 17 (5). Same as Ontario. 
 
Dominion and Provincial Raiiwav Acts. 
 
 evil 
 
 111 
 
 traikic arranc.emknts. 
 *4liH. Tlio directors of any comi)anv may, at mv tiiiu-, innki' ^"a"t;e 
 
 , . • 1 ' 1 mc'iit'^ for ill- 
 
 and Ciller into any a^rcciiK-nt or arranm-Miicnl witli any other ( om- uichanjjf of 
 pany, cither in ((Canada) (i) or ciscwiierc, fur the n^^iilalion I'a"''^-'. 
 and interchange of IralHc passing to and from llie company's 
 railways, and for the working of the traflfic over the said rail- 
 ways respectively, or for either of tliose ol)je<ts sci)arately, — 
 and for tlie division and apportionments of tolls, rates and 
 charj^es in respe< I of such tiatlK:, — and generally in nlalion !o tlie 
 management and working of the railways, or any of them, or any 
 part thereof, and of any railway or railways in connection there- 
 with, for any term not exceeding ftwenty one years), — c/iand to 
 provide, either by proxy or otiierwi'^e, for the appoinliiuiil of ;i 
 joint committee or committees for the lietier carrying into elTeci 
 of any such agreement or arrangement, with such powers and func- 
 tions as are C(jnsidered necessary or expedient, — sul)je( t to the ''''''^■'•"'" • '*'' '" 
 
 - ,.,,., 1111 • • 1 apiirtivnl. 
 
 consent of two-thiuls of the stock-holders voting in person or by 
 
 proxy (and also to the approval of the (lovernor in Council;. (2) 
 
 K. S. O.. cli. 170, sec. 77 — d) "Tliis I'roviiiCf," Ci) <ul)stiiulc '• liiit 
 tiie iirovisioiis i)f this scctiuii sliall imt aiiply tu .niiytliin^ (lone before the 301I1 
 day of biiii', 1858.'' 
 
 K. .S. (J., .\it. 5207 — (O " ill the I'roviiice," (<;) '• lifty ye.iis," (.->) 
 omitted. 
 
 N. 1!., 189I, cli. IS, sec. 64.— (I) " in this I'rovince," (2) oniitteil. 
 
 K. .S. N. S , cli. 53, sec. 58 (I). Same as l>uniinion, excepliiiy (2) oiiiiltc<i. 
 
 *^li*). Before such approval is given, notice cf the application Notice of ap- 
 therefor shalil)e published in the Cu/ki./u Gazette iot ^a least Jj''''i|!j,','!|| '°' 
 two months previously to the time therein named for the mak- 
 ing of such ai)plication ; and such notice shall state a time and 
 place when tiie application is to be made, and that all jjcrsons 
 interested may then and there appear and be heard on such 
 application. 
 
 !340. Kvery company shall, according to its jjower, aflbid all 1'acilitie.s to 
 reasonable facilities to any otner railway comijany tor the ^" '^ "'^ ^'' '" 
 
 ' . J I J respect of 
 
 receiving and forwarding and delivery of tralVic upon and from traiTic. 
 
 the several railways belonging to or worked by such companies 
 
 respectively, and for the return of carriages, trucks and other 
 
 vehicles ; and no such company shall make or give any undue Xo undue ad- 
 
 or unreasonable preference or advantage to or in favor of any ^'•'^"'"S'^- 
 
 i 1 
 
 i 
 i 
 
• I 
 
 CVIII 
 
 The Railway Law or Canada. 
 
 As to iDn- 
 
 tIDllou.i lllH'S 
 
 of lailway. 
 
 I>arliciil;ir |>crson or ctunpaiiy, or any parliciil.ir dcst riplion of 
 iraflic in any rt's|)ccl wliatsocvcr, — nor shall any Mich ronipany 
 subject any partirtilar person or rompany, or any parlicular 
 dfsrriptiun <it tialtM to any undue or unreason il>l<' prrjuduc or 
 disailvaniagc in any respect nliatsucvcr ; and cviry < ompany 
 which has or works a railway wiiich forms |)art of a lontinu- 
 ous line of taihvay, (<?) or which intersects any other laihvay, 
 orwhicli has any terminus, station or whaifnear to any terminus, 
 station or wharf of any other railway, shell afford all due and 
 reasonahle laci!ilie< for receivinj, and forw.udiny l)y its railway 
 all the traflic artiVMi-^ hy such other railway, without any un- 
 reasonable delay, and without any such preference or advantage, 
 or piejudice or disadvaniage. as aforesaid, and so that no obstruc- 
 tion is oflered (to the public desirous of) (i) using sudi railway 
 as a continuous line of comnuinication, and so that all reasonable 
 accommodation (by means of the railways of the several com 
 panics) (2) is. at all times, afforded (to the public in that 
 A'^refiiients behalf), (3) and any agreement made between any two or more 
 m violaiion companies contrary to this section (4) shall be unlawful, and 
 null and void. 
 
 K..S. 0..(li. 170. M'C. 78 (1).— (i|"in llic," (2) (imiltid, (3) " by and 
 to the sevL'ial r.niiway coinpaiiii-s." 
 
 R. S. O., cli. 170, MC. 7S (2).— (4) " nuric since the iSth day of May, 
 1861, or .nfter ti.^ passing,- of lliis Act." 
 
 R. .S. (^>., Art. 5207 (2).—{i) '• in llie," (2) oinitlcil, (3) " by ami to llie 
 several railway companii-s." 
 
 N. It., i8()i , ill. iS, sec. 65. ."Same as \>uel)ec. 
 
 R. S. N. S.,ch. 53, sec. 58 (2). — («) " or railway and steamer connection." 
 
 Penalty for 
 refusal l)y 
 officer to re 
 cciyc and 
 
 341. Kvery otVicer, servant or agent of any company, having 
 the superintendence of the traffic at any station or depot there- 
 of, who refuses or neglects to receive, convey or deliver at any 
 convey gootU. stmjon or depot of the company for which they are destined, 
 any i)assenger, goods or thing, brought, conveyed or delivered 
 to him or such conii)any, for conveyance over or al jng its rail- 
 way from that of any other company, intersecting or being near to 
 such first mentioned railway, or who in any way wilfully \iolates 
 the provisionsof the next preceding section, and the company 
 first inentioned are, for each such refusal, neglect or offence, 
 severally liable, on summary conviction, to a penalty not ex- 
 ceeding fifty dollars over and above the actual damages sus- 
 
 I 
 
 |: 
 
 ":n 
 
Dominion and Provincial Railway Aits. 
 
 cix 
 
 mined ; wliicli jieiLilty Nliall be rocovfrablc- with costs, (j) l)y liic Kecovrry mil 
 
 railway comp.uiy t)r l)y an. iifiscn aggrieved by such neglect or"'''' 
 
 refusal, and such penally sh. ill belong to the said railway coiii- 
 
 |)any, or other person so aggricveil. 
 
 K. S. ()., cli. ijo, ■ 1 . 79 — (I) " in ;< siiiiimarv wav before .\nv Justice 
 ..fthc IVacu." 
 
 K. S. Q.. Art. 5207 (4). Satiif .'s Ontori". 
 
 N. I!., l8i>l,ili. iS, si'C. (if<, :'amt' a« Ontario. 
 
 K. S. N. S., cli. 53, SCO, 58 (4). Same a* t)ntaiio. 
 
 *i\*i. Every ■ ompany which grams any facilities to ;iny K'lual in.ili- 
 inc:ori)orated express company or piTson sh.ill grant ctpial J,',';,'', ','^,^■1^.'^"^*''* 
 facilities on ernial leriiis and conditions to any other incorporated eti-. 
 express comi)any whicli demands the same. 
 
 K.S. N. S..d.. 53, xtc. 58(3). 
 
 WORKINd OK till RAILWAY. 
 
 !i4J{. I'A'cry raihvay company, which runs trains upon the "e-t appli- 
 •1 r .1 c ' III 11 anci's (or 
 
 railway for the conveyance of passengers, shall provide and ,,,„„,„m,jj.j^. 
 
 cause to l)e used in and upon such trains such known apjiaratus tion ami for 
 and arrangements as best afford good and sufiicient means "f .'a'llsio he 
 immediate communication between the conductors and the engine used. 
 drivers of such trains while the trains are in motion, — an<l good 
 and sufi'icient means of api)lying, by the power of the steam 
 engine or otherwise, at the will of the engine driver <ir other 
 person ajjpointed to such duty, the brakes to tlie wheels of the 
 locomotive or tender, or both, or of all or any f)f the cars or 
 carriages composing the trains, and of disconnecting the locomo- 
 tive, tender and cars or carriages from each otlicr by any such 
 power or means, — and also such apparatus and arr.ingements a'^ 
 best and most securely place and fix the seats or cliaiis in tiic 
 cars or carriages, — and shall alter such ai)i>aralus and arrange- 
 ments, or supply new apparatus and arranLiements, from time to 
 time, as the ( Railway ("ommittec) (i) orders ; and every rail- Penalty for 
 way company which fails to comi)ly with any of the provisions ""'^■*^""M'''' 
 of this sec tion shall forfeit to Her Majesty a sum not exceed- 
 ing two hundred dollars for every day during which such default 
 continues (and shall, as well, be liable to pay to all such ])ersons i.iahilitv for 
 as are injured by reason of non-com])liance with these iiro-''""''t'es. 
 visions, or to their representatives, such damages as they are 
 legally entitled to, notwithstanding any agreement to the con- 
 trary with regard to any such person). (2) 
 
 m 
 
II 
 
 ex 
 
 'I'HK Railway Law of Canada. 
 
 JielU nm 
 wliistles. 
 
 R. S. O.. ill. 170, sfc. 96. — (i) " Commissioner of Public Works with the 
 sanction oftlie Licutuncint (iovernor in Council may order." 
 R. S. O., cli. 170, si-c. 97.— (2) oinitteil. 
 
 U.S. Q.. Art. 5149 Same as Dominion, excepting (2) omitted. 
 N. H., iS9i,cli. 18, sec ■;. 76 and 77. Same as Ontario. 
 K. .S. K, S.. ch. 53. Sees. 69, 70. — (l) " (iovemor in Council." 
 
 ^44. Kvery locomotive engine shall be furnished with a 
 liell, of at Irast thirty pounds weight, and with a steam whistle. 
 
 R. S. 0..ch. 170, sec. 41 (8). 
 K. S. (J., Art. 5173 (9). 
 R. S. M., ch. 130, sec. 1 10. 
 N. H.. 1891, ch. 18, sec. 32 (8). 
 R. S. N. S.. ch. 53, sec. 25 (8). 
 
 Position of 245. No baggage, freight, merchandise or lumber cars shall 
 
 ngc C''u>. Ijp placed in rear of the passenger cars, (i) 
 
 R. S. O., ch. 170, sec. 41 (7). — Ci) " and no ofificer or agent sliall direct 
 or knowingly suffer .such arrangement." 
 
 R. S. Q., Art. 5173 (8). Same as Dominion. 
 
 R. S- M., ch. 130, sec. 109. Same as Ontario. 
 
 N. IJ., 1891, ci). 18, sec. 32 (7). Same as Ontario. 
 
 R. S. N. S., ch. 53, sec. 25 (7). Same as Ontario, and additional " under 
 penalty of being found guilty of a misdemeanor and punished accordingly." 
 
 Trains to 1)0 ti4G. All (regular) (i) trains shall be started and run (as 
 run .at legulai ,^gjj^ ^^ practicable) (2) at regular hours, fixed by public notice, 
 and shall furnish sufficient accommodation for the transportation 
 of all such passengers and goods as are within a reasonable time 
 previou.sly thereto offered for transportation at the place of start- 
 ing, and at 'he junctions of other railways and at usual stopping 
 places established for receiving and discha rging way passengers 
 and goods from the trains ; 
 
 R. S.O., ch. 170, sec. .41 < 2). — (i) omitted, (2) omitted. 
 
 R. S. Q., Art. 5173 (2). Same as Ontario. 
 
 R. S. M., ch. 130, sec. 104. 
 
 N. 1!., 1891, ch. 18, sec. 32 (2). 
 
 R. S. N. S.,ch. 53, sec. 25 (2). Same as Ontario. 
 
 Conveyance 
 of pnssen^jcr- 
 and i;oods. 
 
 2. Such passengers and goods shall be taken, transported to 
 
 and from, and discharged at such places, on the due payment of 
 
 the toll, freight or fare lawfully payable therefor ; 
 
 R. S. O., ch. 170, sec. 41 (3). 
 R. S.Q., Art. 5173(3;. 
 R. S. M , ch. 130, sec. 105. 
 N. B., 1891, ch. 18, sec. 32(3). 
 R. S. N. S.,ch. 53, sec. 25 (3;. 
 
 1 ' 1 
 
 <- 
 
DOMIN'ION AND PROVINCIAL RAILWAY ACTS. 
 
 CXI 
 
 ^ Every per.on aggrieved by any neglect or refusal in the K.gJ .^^ ^^^^ 
 premises shall have an action therefor against the company -^f neglect, 
 iron-, which action the company shall not be relieved by any 
 notice, condition or declaration, if the damage anses from any 
 negligence or omission (i) of the company or of its servant. 
 
 R. S. O., ch. 170. sec. 41 (4)— (') " °^ "misconduct." 
 
 U. S. Q., Art. 5173 (4)- • 1 . .' 
 
 U S. M. ch. 130, ^ec. io6.-(i) " or m.sconduct. ^ 
 
 N. H.. 1891, ch. IS, soc. 32 (4).-(l) " or misconduct. 
 
 R. S. N. S.,ch. 55, sec. 75 (4)- 
 
 347. Every servant of the (company) (i) employed in a pas-S--'^^^; 
 sengcr train or at a station for passengers, shall wear upon h.s 
 hat or cap a badge, which shall indicate his office, and he siiall 
 not, without such badge, be entitled to demand or receive from 
 any passenger any fare or ticket, or to exercise any of the powers 
 of his office, or to interfere with any passenger or his baggage or 
 property 
 
 248. Every passenger who refuses to pay h.s fare may, by the ^^^nils.on of^^ 
 conductor of the train and the (train) (i) servants of the company, ^^.^^ ^^ ^^^^ 
 be put out of the tr.ain, with his baggage, at any usual stopping 
 phce or near any dwelling house, as tlie conductor elects, the 
 conductor first stopping the train and using no unnecessary force. 
 
 R S O., ch. 170, sec. 41 (lo).-(l) omitted. 
 
 r! s. •^, Art. 5173 (•2)--(') °"'"':; • , 
 
 R S M.,ch. i',o, sec. I I2.-{I) omitted. 
 
 N H , 1891, ch. 18, sec. 32 (10). -(I) omitted. 
 
 r! S. N. S.,ch. :;3,sec. 25 (11). -(D onutted. 
 
 '> JQ No person injured while on the platform of a car, or on injury to pas- 
 ^4<J. i^" [Jv-icivy J • • , .• f ^Uo i^rJntorl scnccr stand- 
 
 any baggage, wood or freight car, in violation of the printed , g^^ ^^^^ 
 reiuatio^is posted up at the time, (i) shall have any claim info,,, ,tc. 
 respect of the injury, if room inside of such passenger cars, 
 sufficient for the proper accommodation of the passengers, was 
 furnished at the time. 
 
 R. S. O.. ch. 170, sec. 41 (n).-(i) " i" =^ conspicuous place ins.de of tlic 
 passencer cars then in the train." ^ ., •„ 
 
 ^ R. S. O., Art. 5'73 (>3)- ^^'^'^ ^^ ^"iT' 
 
 1. ^.; M rh i^o sec m. Same as Ontario. . 
 
 N. B.. .89.:ch.°;8:s;c 32 (10. Same as Ontario, adding after tram ■' or 
 on the outside of the door." r^ »,,.:„ 
 
 R.S.N.S.,ch. 53, sec. 25(12). bame as Ontario. 
 

 CXll 
 
 The Railway Law of Canada. 
 
 Cliecks to be 
 affixed to 
 Imggnge. 
 
 : '! 
 
 Penalty for 
 refusing to 
 affix check. 
 
 */iiiO. Checks shall bo affixed by an agent or servant to every 
 parcel of baggage having a handle, loop or fixture of any kind 
 thereupon (delivered to such agent or servant for transport), (i) 
 and a duplicate of such check shall be given to the passenger 
 delivering the same. 
 
 R. S. 0.,ch. 170, sec. (5).— (I) omitted. 
 
 K. S. (}., Alt. 5173 (5)— (I) omitted. 
 
 R. S. M., cli. 130, sec. 107. — (I) omitted. 
 
 N. 15., iS9l,ch. 18, sec. 32 (5). 
 
 R. S. N. S.jCh. 53, sec. 25 (5). — (i) omitted. 
 
 *451- If such check is refused on demand, the company shall 
 ])ay to such passenger the sum of (eight dollars), ( t) which shall be 
 recoverable in a civil action ; and no fare or toll shall be collected 
 or received from such passenger, and if he has paid his fare, the 
 same shall be refunded by the conductor in charge of the train. 
 
 R. S. 0,cli. 170, sec. 41 (6). 
 
 R. S. <,)., Art. 5173(6). 
 
 R. S. M., cli. 130, sec. 108. 
 
 N. H., iSgi.ch. iS, sec. 32 (6).— (I) "ten." 
 
 R. S. X. S., ch. 53, sec. 25 (6). 
 
 Evidence of 5i53. Any passenger who [)roduces such clieck may himself 
 vn^e o )ag- |^^^ a witness in any action or suit brought by him against the 
 
 company to prove the contents and value of his l)aggage not 
 
 delivered to him. 
 
 R..S. (,)., All. 5173(7). 
 
 As to (Linger- "Ziili. No passenger shall carry, or require the company to 
 carry upon its railway, aquafortis or oil of vitriol, gunpowder 
 (nitro-glycerine) (i) or any other goods which, in the judgment 
 of tlie company, are of a daiigerous nature; and every person 
 who sends I)y the railway any such goods witiiout, at the time of 
 
 To be plainly SO sending the same, distinctly marking their nature on the out. 
 
 marked. gj^-jg ,,[■ jj^^. package containing the same, and otherwise giving 
 
 notice in writing to the (station master) (2) or otiier servant of 
 the company with whom the same are left (or wiio carries or 
 takes upon any railway train sucli material as is mentioned above, 
 for the purpose of having tiie same carried by the said railway 
 
 ., u { . train), (3) shall forfeit to the company the sum cf (five hundred 
 
 contravention, dollars) (4) for every such offence. 
 
 ^ P 
 
 i 
 

 Dominion AND Provincial Pt.LWAY Acts. cxiii 
 
 R. S. O., ch. 170, sec. 4» (i2).-(') " 1-"';'^" matches," (2) " I'ook- 
 keqier," (3) omitted, (4) '• twenty dollars." 
 K. S. Q., Art. 5173 (14)-— (3) omitted. 
 R. S M., ch. 130, sec. 114. Same as Ontario. 
 N. B., 1891, ch. iS, sec. 32 (12). Same as Uommion. 
 K. S. N. S., ch. 53, sec. 25 (i3)-(3) omitted. 
 
 254. The company may refuse to take any package or parcel t)ajerous^ ^^^ 
 which it suspects to contain goods of a dangerous nature, or may ^^f^,^,, 
 require the same to be opened to ascertain the fact (and the com- ^^^_^.^^^ ^^ 
 puny shall not carry any such goods of a dangerous natuie, except ^u^h goods, 
 in cars specially designated for tiiat purpose, on each side of each 
 of whicii shall plainly appear, in large letters, the words " danger- 
 ous explosives ; " and for each neglect to comply with ^^'^ V^"' ^^^^^^^y^;;^.^^^ 
 visions of this section, the company shall incur a penalty of hve 
 hundred dollars), (i) 
 
 K. S. O., ch. 170, sec, 41 (13)— (I) omitted. 
 
 R. S. i).y Art. 5173 (15)-— U) omitted. 
 
 R. S. M., ch. 130, sec. lis— (i) omitted. 
 
 N. U,, 1891, ch. iS, sec. 32 (13). Same as Dominion. 
 
 R S. N. S., ch. 53, sec. 25 (14)— (') omitted. 
 
 355. {As amended by 55-56 Vic, .//. 27, sec. 7.) When a J;;};;;^ J^-P^ 
 railway passes any draw or swing bridge over a navigable river, ^ swing bridge 
 canal or stream, which is subject to be opened for the purposes 
 of navigation, the trains shall, in every case, be stopped at least 
 (one minute) (i) to ascertain from the bridge tender that the said 
 bridge is closed and in perfect order for pxssing ; and in default 
 of so slopping for the full period of (one minute) (2) the com- 
 pany shall incur a penalty of four iuindred dollars : 
 
 2. " Wherever there is adopted or in use on any railway at any E.\ceplion in 
 such btidgc an interlocking switch and signal system, or otiier ^■||^J-'.°J^'"''^'^- 
 devi(e which, in the opinion of the Railway Committee, renders switches, 
 it safe to permit engines and trains to pass over sucii bridge 
 without being brought to a stop, the said Committee may, by an 
 order in writing, give permission for engines and trains to pass 
 over such bridge witiiuut slopping, under such rcgukxtions, as to 
 speed and other matters, as ihe said Committee deem proper ; 
 and ihe said Committee may at any time modify or revoke such 
 
 order." 
 
 K. S. O., ch. 170, sec. 95.— (I) " three minutes," (2) " tliree minutes," 
 2nd pait of Dominion Act omitted. 
 
 K. S. Q., Alt. 5148. Same .IS Ont.irio. 
 
 N. B., 1891, ch. 18, sec. 75. Same as Ontario. 
 
 R. S. N. S., ch. S3, sec. 08. 
 
 H 
 
 
I 
 
 I 
 
 
 «' 
 
 •I I 
 if 
 
 CXIV 
 
 The Railway I-wv ok (Ianada. 
 
 Hull conipli 
 a nee 
 
 I'li.ion Id i)l' 
 sKuioiK'tl ai 
 
 Hells to 1.0 *^iHi. 'I'lio hell, willi wliich tlie engine is fmiiislied, shall be 
 
 •■""C '"" 11.1 11 11' .-1 • 1 
 
 uliisilc sound- •"''"»' '"' I'lt-' wiiistle s lUiuk'G. at tlie distance ot at least eighty 
 I- laicrossinns. rods from every place at which the railway crosses any luL^iiway, 
 and be kept ringing or be sounded at short inteivals, until the 
 iV-nalty t'()r c'ligine lias cro'-sed such highway ; and the company shall, for 
 each neglect to comply with the iJiovisions of this section, incur 
 a penalty of eight dollars, and shall also be liable for all damage 
 sustained by any person by reason of such neglect ; and a moiety 
 of such ])enalty and damages shall he chargeable to and collected 
 by the comjjany from the engineer who has charge of such engine, 
 and who neglects to sound the wliistle or ring the bell as afore- 
 said. 
 
 K. S, O., ch. 170, sec. 4 1 (9). 
 K. S. (J.,.\it. 5173 (10). 
 X. 1'., iS9i,cli. 18, sec. 32 (9). 
 K. .S. M.jCli. 130, see. III. 
 R. S. \. S..ch. 53, see. 25 ( , . 
 
 ii.ll. {.Is djiiciii/eii by 56 Vi:.,cli. 2-j,stY. 2.) \ jierson shall 
 
 bo stationed at every ])oiiu where two m;iin lines of railway cross 
 
 each other at rail level, and no train shall proceed over SU( h 
 
 crossing until signal has been made to the conductor or eiigiiuer 
 
 Electric r.iil thereof that the way is clear : provided always, that in the case 
 
 .1) ^'"~^"'^''' Qf ;(|, c'lecric street railway c.ir crossing an electric street railway 
 
 track, it shall be the duty of the coi.ducior befoie crossing to go 
 
 lot ward and see that the tr.ick lobe crossed is clear, before giving 
 
 the signal to the motor man that the way is clear and to proceed ; 
 
 liiieiniei.iihMi 2. •• l>",vcry main tuu k of a branch line is a main line within 
 
 '"" '^''1' "'^' the meanuig of this sec. ion, which shall aiiplv whether the said 
 
 lines be owned by different companies or by the same company." 
 
 R. S. O., cli. 170, sec. 9S. " I'.veiy rnilway Cdnijinny shall st.ntidn an 
 officer at every point on llieir line ciosse<l on a level by any oilier railway, and 
 no train shall proceed over sneh erossing until signal has been made to the 
 eonihietor thereof thai the way is clear." 
 
 R. .'^. (")., Art. 5151. Same .".s Ontario. 
 
 .N'. 15., iiS9i,eli. iS, sec. 78. .Same as Onlaiio. 
 
 R. S. N. S. ch. 53, see- 71. 
 
 Trains to s!op " J^tlH. {.Is amciidiJ by 56 /'/V., <//. 27, .v,v. 2.) " Kvery 
 
 at cio-sini,'. locomotive or railway engine, or train of cars, on any railway, 
 
 shall, before it proceeds over any such crossing, as in the ne.\t 
 
 preceding section mentioned, be stopped for the space of at least 
 
 
 s 
 
 1 
 
 I 
 
 i 
 
Dominion and Provincial Railway Acts. cxv 
 
 one minute ; but whenever there is in use at any such crossing an Exception, 
 interlocking switch and signal system, or other device which, in 
 the opinion of the Railway Committee, renders it safe to permit 
 engines and trains to pass over sucii crossing wiiiiout being 
 brought to 3 stop, the Railway Committee may, by an order in 
 writing, give permission for engines and trains to jiass over such 
 crossing without stopi)in^, under such regulations as to speed and 
 other matters as the Railway Committee deems proper." 
 
 K. S. O., ch. 170, sec. 99. •' Kvery locomotive or mihvay eni,Mne or train 
 of cars.' on aiiv railway, shall, before it crosses the track of any other railway 
 on a level, lK''stopix;d'for the sjiace of at least (three minutes)." (ij 
 
 R S. n , Art. 5152. S.ame as Ontario, excei)ting (i) '• one minute." 
 
 N. l!.,"lS9i, ch. is, sec. 79. .Same as Ontario. 
 
 R. S. N. S., ch. 53, sec. 72. .Same as Quebec. 
 
 '>51). (rls amended by 55-5^' ''"-^ c''- ^7. -^<v. 8.) No loco- Rate of speed 
 motive or railway shall pass in or through any thickly peopled 
 poriionof any (ity, town or villnge, at a speed greater than six 
 miles an h>iur, unless the track is (fenced in the manner i>re- 
 scril.ed by this Act), (i) 
 
 R. S. O., ch. 170, sec. 100.— (:.) " is properly fenced. " 
 
 R. S. Q., Art. 5!33. Same as Ontario, 
 
 N. 15., ^S9i, ch. 18. sec. Sd. Same as Ontario. 
 
 R." S. X. S., ch. 53, sec. 73. Sime as Ontario. 
 
 '*<;<). {As amended by S'i-':,(y Vic, ch. 27, .vf,. 9.) Whenever As to tr.ain 
 
 any train of cars is moving reversely in any city, town or villaga^, 'J^'^^^^'j'S ^ 
 
 the lu.omoiive (,.ind tender) (1) l)eing in the rear of such train, 
 
 the I onipanv shall station on the last car in the train a person 
 
 who ^iK^ll warn persor.s standing on or crossing the track ot such 
 
 railway, of the ;'i)proach of such (engine, tender and) (2) train ; IVn.ahy. 
 
 and for every violation (pf any of the provisions of this section, 
 
 or ofanv of the three sections ne.xt preceding, the company shall 
 
 incur a penalty of one hundred dollars." 
 
 R. S. O.. ch. 170, sec. 101.— 0> oniilted, (2) omitted. 
 U, S. (J.. .\rt. 515.;. Same as Ontario. 
 N. 15 .^Sgi, ch. 18, sec. 81. Same as Ontario. 
 R. S. -V. S., ch. 53, sec. 74. 
 
 *2(U Whenever anv railway crosses any public highway at Cars not to 
 ""^ ' ...... stand on lail 
 
 y crossing. 
 
 - ' , ,1 ,,• . stand on 1 ail- 
 rail level, the company shall not, nor shall its otticers, servants ^^.^^ 
 
 or agents, wilfully permit any engine, tender or car, or any por- 
 tion thereof, to siand on any part of such highway for a longer 
 period than five minutes at one time ; 
 
1 : '; 
 
 : If 
 
 ; 
 
 ] 
 
 { 
 
 f 
 
 ill 
 
 CXVI 
 
 The Railway Law of Canada. 
 
 Penalty for 
 violation. 
 
 Proviso. 
 
 2. Ill every case of a violation of this section, every sucli otVi- 
 cer, servant and agent who has under or subject to his control, 
 management or direction, any engine, tender or carwhicli, or any 
 portion of which, is wilhilly allowed to stand on such higiuvay 
 longer than the time sjjecified in this section, is, and sucli com- 
 l)any is also, for each such violation, liable on summary convic- 
 tion to a penalty not exceeding fifty doll rs : Provided always, 
 that if such alleged violation is, in the o; .nion of the court, ex- 
 cusable, the action for the jjcnalty maybe dismissed, but without 
 costs. 
 
 Application. 262. This section shall ap])ly to every railway and railway 
 company within the legislative authority or jurisdiction of (the 
 Parliament of Canada) ; (a) 
 
 2. In this section the expression "packing" means a packing 
 of wood or metal, or some other equally substantial and solid 
 material, of not less than two inches in thickness, and which, 
 where by this section any space is required to be filled in, shall 
 extend to within one and a-halfinchts of the crown of the rails in 
 use on any such railway, shall be neatly fitted so as to come against 
 the web of such rails, and shall be well and solidly fastened to 
 the lies on which such rails arc laid ; 
 
 3, The spaces behind and in front of every railway frog or 
 
 Interpretation 
 ol' terms. 
 
 Packing of 
 frogs, etc. 
 
 Antl of wing 
 and guard 
 rails. 
 
 Proviso. 
 
 Oil cups. 
 
 crossing, and between tiie fixed rails of every switch where such 
 spaces are less than five inches in width, sliall be filled with pack- 
 ing up to the under side of the head of the rail; 
 
 4. Tiie spaces between any wing rail and any railway frog, and 
 between any guard rail and the track rail alongside of it, shall 
 be filled with packing at their splayed ends, so tiial the wjiole 
 sjilay shall be so filled wiicre the width of the sjjace between the 
 rails is less than five inches; such ])acking not to reach higher 
 tiian to the under side of the head of the rail : Provided, how- 
 ever, that the (Railway Committee) (i) may allow such filling to 
 be left out, from the month of December to the month of April in 
 each year, both months included ; 
 
 5. The oil cups or other appliances used for oiling the valves 
 of every locomotive in use upon any railway shall be such that no 
 employee shall be required to go outside the cab of the loconio- 
 
H 
 
 Dominion and Provincial Railway Acts. cxvii 
 
 tivc, while the same is in motion, for the purpose of oiling such 
 valves. 
 
 N H., iSgi.ch. l8, sec. 85. Same as Dominion, excepting (i) " Chief 
 Commissioner ol'l'iiblic Works," (,:) "llii^ I'r-^vince." ^ 
 
 R. S. O., ch. 212, sees. 5. 6. " The Railway Acculenl Act. 
 
 TRAINS OVERnUK. 
 
 2iui Kveiy company, upon whose road tlier.- is a ^^-'legraph D^V^of^st^" 
 line m operation, shall have a blackboard put upon the outside ^^.^ ,vi,en 
 of the station house, over the platform of the station, in some umn .s over 
 consi.icuous place at each station of such company at which 
 there is a telegraph oltice ; and when any passenger train is f)ver- 
 due for half an hour at any such station, according to the time 
 table of such company, tlie sta'ion master or person in charge at 
 such station shall write, or cause to be written, with white chalk 
 on such blackboard, a notice \n Knglish and French (in the Pro- 
 vince of (Quebec, and in Knglish in the otiier Provinces), (i) stat- 
 ing, to ihebest of his kiunvledge and belief, the time when such 
 overdue train may be expected to reach such station ; and if, 
 when that time has come, the train has not reached the station, 
 the station master or person in chirgeof the station shall write, or 
 cause to be written, on the blackboard in like manner, a fresh 
 notice, statino, to the best of his knowledge and belief, the time 
 when such Jverdue train miy then b^ expected to reach such 
 
 station ; 
 
 2. Kvery such company, statiou master or person in charge at IVnaUyJor^ 
 any such station is (on summary conviction) (2) liable to a pen-'^™"!' ' 
 alty not exceeding five dollars f.r every wilful neglect, omission 
 
 or refusiU to obey the provisions of this section ; 
 
 3. l-.very such company shall have a printed copy of this ^^•^- CoPY of ^this 
 tion posted up in a conspicuous place at each ol its stations at ^^^j^^, ^^^ 
 which there is a telegraph office. 
 
 R S () \rt Si74.-(') o'1'i'te.l, (2) omitte.1. « Any suit for the re- 
 coverv' of^any sucl, penalty may b. Uo„«hi before any two Justices of the 
 Peace, or i.efore the Circuit Court of ih. district or county in which such sta- 
 
 *'°" -rhM^naUy, recoverable under the provisions of this Article, shall belong 
 
 ''^^::r;:S^'S:^^ by vlnue of this anlde sha,lbe commenced 
 within one month following the commission of the offence, and not after. 
 
 - Nothing in this article shall prejudice the right of any person to the 
 recovery of damages from any such railway by reason of detention of trains as 
 aforesaid . " 
 
T 
 
 CXVlll 
 
 TnK Railway Law oi' Canada. 
 
 I ARRIACK OF MAILS, NAVAI, AND MILITARY FORCES, F.TC. 
 
 Carriage of *Hii. Her Majesty's mails, Her Majesty's naval or military 
 Ik-r Majesty's ■,••,,,■„ • ■ • • , 
 
 mails etc. forces or militia, and all artillery, aiiiiiuinitioii, provisions or other 
 
 stores for their use, and all pjliceinen. constables or others tra- 
 
 vcllin.^on Her Majesty's service, shall at all times, when recpiired 
 
 liy the Postmaster General of Canada, the Commander of the 
 
 forces, or any person having the superintendence and ( oinmand 
 
 of any police force respectively, and with the whole resources of 
 
 the company if re(iuired, 1)j carried on the railway, on such terms 
 
 and conditions and under such regulations as the (iovernor (2) in 
 
 Council (i) makes. (3) 
 
 R. S. O., cli. 170, .^ec. 44 (1). — (I) "or Lieutenant-Governor in Council," 
 (2) " i^ent-ra!,'' (3) "as the case rciiuires." 
 
 K. .S. M.ch. 130, ioc. 121. Same as Ontario. 
 N. 15., 1891, ch. 18, sec. 35. Same as Ontario. 
 K. .S. N, S,, ch. 53, sec. 27 (i). Same as Dominion. 
 
 TELEGRAPH LINES. 
 
 Government !!2(><'>. 'I'he company shall, when reipiired so to do hy the 
 
 '°,"^^^',"^^ "'(Governor in Council) (i) or anv person authorized hy (him) 
 lelegra])ii if ^ . ' -' ^ / 
 
 required. (2) place any electric telegraph (and tebphone lines) (3) and the 
 
 apparatus and oi)crators it has, at the exclusive use of the Govern- 
 ment (of Canada), (4) receiving thereafter reasonable compensa- 
 tion for such service. 
 
 R. S. 0., ch. 170, sf.'c. 44 (2).— (I) " Governor General or Lieutenant- 
 Governor, as the case tnay l)e," (2) "tliem," (3) omitted, (4) omitted, 
 R. .S. M., ch. 130, sec. 122. Same as Ontario, excepting (2) '• iiini.'" 
 N. 15 , 1891. ch. iS, sec. 35 (2). Same as On ario, excepting "telephone," 
 .additional. 
 
 R. S. N. S , ch. S3, sec. 27 (2). Same as Dominion, excepting (3) omitted, 
 K, ,S. O.. .\rt. 5176 (I). " Railway companies sliall have the rigln to estab- 
 lish telegiaph lines along the whole extent of the railway, at such places 
 along thi line, and witii othces at such jilacesas shall hi determined u|)on by 
 the dir' ctors, and such telegraphs may be used by the public generally, in 
 conformity with the rules and regulations that the company may adopt," 
 
 Telegr.aph '-iGG. The Governor in Council may, at any time, cause a line 
 
 lines may be or lines of electric telegraph (or telephone] (i) to be constructed 
 
 Gov^ernment. '^'^"S ^'i'-' ''"" "f ^'^^ railway, for the use of the Government (of 
 
 Canada), (2) and for that purpose may enter upon and occup/ 
 
 so much of the lands of the company as is necessary for the i)ur- 
 
 pose. 
 
Dominion and Provinciai, Railway Acts. ':xix 
 
 i 
 
 K, S. N.S.,c'i 53, sec. 27 (3).— (1) omitted. (2) omitted. ( I'liey may 
 also coii>liuct telfurapli lines for |)ul)lic use. See sec. 7 (id). 
 
 K. S. 0.,cli. 170, sec. 44 (3). " Any furtlier eiucinieius wliieli llie I'.ii- 
 li.-iment of Caind.l or the l/'t;islature of lliis I'rovince may make for the car- 
 riaue of the mail or Her M.ijesty's forces, and other i>;rsnns and articles as 
 aforesaid, or the lolls therefor, or in aiiv way re-j'ecting the Use of any elec- 
 tric teletiraph or other service to hi rendered to the (lovernment, shall not he 
 deemed an infrini^ement of the |.rivilef^es intended to be conferrt'd by this Act 
 or the Special .\ct." 
 
 N. iJ., 18.JI, ch. IS, sec. 35 (3). Sam-J as Ontario. 
 
 R. .S. M., ch. 130, sec. 123. Same .as Ontario. 
 
 ACCIDENT.S, COM.MISSION.S TO I NVK.S rilJ.VTK. 
 
 "ZKH. Kvcry company siiall, as soon as possible, and within 
 forty-eight hours, at llic furthest, aftor the occurrence upon the 
 lailwiiy belonging to such company, of any accident attended 
 \viiii serioii-. personal injury to a.iy person using the same, or 
 whereby anv bridge, ctilvcit, viaduct or tunnel on or of the rail- 
 way his been broken, or so danugedas to be impassable or unfit 
 for immediate use, willgive notice thereof to the (Minister), (i) 
 and every company which wilfully omits to give such notice 
 shall forfeit to Her Majisty the sum of two liundred dollars for 
 every dav during which the omission to uive the same continues. 
 
 R.S. O. ch. 170, sec. 71. — (1) " Commissioner of I'uhlic Works." 
 
 r! s] Q.".' An. 5'9^.— (I) " Kailway Committee." ,.,.,„ , . 
 
 N. 15.. (891, cli. IS, sec. 58. — Same as Ontario, a Idinij " Chiel Ix-lore 
 " Commissioner '' ..■,,, 
 
 R. S. -V. S., ch. 53, sec. 4S.— (l) " Governor in Council. 
 
 2(iH. The Governor in Council, on the recommendation oi 
 the .Minister, may appoint sucli person or jjcr.sons as he thinks 
 fit to be a commissioner or commissioners for inquiring into the 
 causes of and the circumstances connected with any accident or 
 casualty to life or property occurring on any railway, and into 
 all particulars relating thereto ; and such commissioner or com- 
 missioners shall receive such remuneration for his or tlieir ser- 
 vices as the Governor in Council determines. 
 
 Ji09. The commissioner or commissioners shall report fully, 
 in writing, to the Minister, his or their doings and opinions on 
 the matters respecting which he or they are appointed tointiuire. 
 
 *^70. The renuineration of the commissioners and the fees 
 and allowances to the witnesses shall be i).iid out of any moneys 
 provided by Parliament for unforeseen expenses. 
 
 Notice of ac- 
 cidents to tlL- 
 uivtn. 
 
 Penalty for 
 non-comiili 
 ance. 
 
 Comniis-ion- 
 eis to inquire 
 into accidents. 
 
 Remuneration 
 
 Uei ort. 
 
 I'ayinent of 
 comniissioneis 
 anil witnesses. 
 
 •Hi 
 

 I 
 
 w 
 
 J h 
 
 Cnttlc not 111 
 Ix.' at lar^je 
 near railway. 
 
 Such calllc 
 may Ik; iin 
 iHiundcfl. 
 
 No right (if 
 actiun ill Micli 
 ca'-L'. 
 
 No cat tic- 
 bo tal<L'n 
 liiK* 
 
 Penaltv. 
 
 til 
 on 
 
 CXX Tup. Railway Law ok Canaha 
 
 CAn'LK Al' I.ARUE. 
 
 *^71. No liorses, sliecp, swine or oher cattlo sliall he i)cr- 
 milled to be al large upon any iii;;li\vay, wiiliiii iialt' a mile of 
 tile iiilcrsection of siiclj liijj;h\vay witli any r.iiiway at rail level, 
 unless such caltlc are in ehirue of some jierson or jiersons, to 
 prevent tiieir loitering or stopping on siicli higliway at siicli in- 
 tersection ; 
 
 2. All cattle foinid at large contrary to the provisions of this 
 section may, by any person wiio Ihiils the same at large, be im- 
 pounded in the pound nearest to the pi ice where the same are 
 so found, and the pound-kee|)er with wiiom the same are so 
 impounded siiall detain the same in liie like manner, and subject 
 to the like regulations as to tlu care and disposal tlureol', as in 
 the case of cattle inipoiinJetl for trespass on private property ; 
 
 T,. If the cattle of any person, which are at large contrary to 
 the provisions of this section, are killed or injured by any train 
 al such jioint of intersection, he shall not liave any rigiil of 
 action against any company in res|)ect of the sam,- being so 
 killed or injured. 
 
 R. S. C)., cli. 170, sees. 103. 104, 105. 
 R. S. (J., Alt. 5156,5157, 515S. 
 R. S. .N. S., ch. 53, sfcs. 76, 77. 7S 
 
 C\TTI,E XOr AI.I.OWK.I) WITHIN KKNCICS— K.XCKPTIONS. 
 
 *^T'4. I'.very iiersun who rides, leads or drives any horse 
 or any other animal (or suffers any such horse or other animal 
 to enter upon such railway). ( 1 ) and within the I'ences and guards, 
 other llian the farm crossings, without the coiiseiu of the company, 
 shall (on summary conviction) (2) be liable to a penally i.ol 
 exceeding forty dollars, and shall alsi pay to any [lerson aggrieved 
 all damages sustained thereby. 
 
 R. S. O, cli. 170, sec. 3oCs).— (1) miiiticii. (2) omiltetl. 
 K. .S. ()., Arts. 5171 (5). Same as Onlaiio. 
 R. S. M., ch. 130, sec. 3G. Same as CJr.tariu. 
 N. H., 1891, cli. iS, sec. 22 (5). 
 R. S. i\. S., ch. 53, sec. 16 (4). 
 
 R. S. N. S., ch, 53, sec. 16 (5). Contains jiiovisions for enfoicintj preced- 
 ing ]irovisions, 
 
 Iv 
 
 hi 
 
 •s.* 
 

 Dominion an.. Pkovinciai, Railway Acis. 
 
 so PERSON TO W.M,K ON TRMK. KrC-KXCKPT.ONS 
 
 cxxl 
 
 ■ , , :k..iv (ir N" i>erson lo 
 
 ^ ,vL company, who walks along ihc track il.ocof, ,,„,. 
 em;. loved by U't- comi-any ^i„n<r a hiuhwav. is lui- 
 
 ,.,;,„ wlK.ro U,. same is ,:nd -";- ^ „ '^^tl 8 .-.-.l^.".- = I'— V 
 
 ,1K- kn.nvloOgo or c„„s.i.l <.l -n, "«'" ° , ^..jj ,,il. 
 
 p„„,, .,,„ i,..e„r f'-"i"'-^^ ;; :■.;::„;"::„„.>. c„„v„.- 
 
 "7' \,,;,,^,„,„ ,,„,,. win, an or..,,.:c ...... U,i, ». .V™ 
 
 ''■ - ,„. witness (in his own behalf. cumi'oicni 
 
 shall be a (onipeleiit witness , ., i witnos,. 
 
 nrr„ . No revM.n other Ihanto c.mncctcM 
 
 K.S. (J..Arl. 5 /• ^;'^ ^ Same as Ununo. 
 ^•S-'Kel;;;':-"^ Saniea.O,u.U>. 
 
 o^4 ,rthe(RailwavCommiUee) (D orders -X --!'->; J;;-;-::"- 
 '*•*• '' ,, ;, 'lieuof mv level crossing of a Uirnpikt ^ ,f 
 
 to erect al or near or t . het.ot an. ^^ ^^ over ,„,,v.,le>L 
 
 road, or other ,a,l>l,ch.,hw.v,^.oo^^^-^^^ 
 
 i.sraiw.y, for the purpose of -^^^ ^^ ^^, J,.^,, „,, railway 
 
 .,ong such turnp,ke -^^ 'j ^^ I^^l, ,„, ^Rer the com- 
 bv means ot st.ch budge or br.de . ,^^ ^^^ 
 
 pietion of such foot brt^lge or ^^[''^^^^ • ^ J^,,^ ,,d suf- 
 L.ed,anl while t,.c^^pa.jyW.- ,.^^^ ^^^^^. 
 
 ficient repair, such level c ossm ,,i,h,vay, except dur- 
 
 i;-[::,*:^:rrrti.,«aL.e,,a.a..oicarr,a.., 
 
 ,L, „„rs.s or ca„>. aio„. .,= sa.J road ^^ ^^^^^ ^_^^^ ^^^ 
 
 , K.c,y ,,o,son ,vl,o offcds ».S' \^" ° „„,„,,„,. co...a.».lo„. 
 sccliorr is liable, o„ s..raina-y corrv.cuo,., .0 a pena. 1 
 ing ten dollars. 
 
I 
 
 ^'i 
 
 11 
 
 Wco'ls to Ik; 
 cut down. 
 
 Penalty for 
 non-C(ini|>li- 
 a nee. 
 
 Mayor, etc., 
 may cause 
 work to l)f 
 'lone. 
 
 Aiiplicati'in 
 of i>enalty. 
 
 CXXII 
 
 The Rmi.wav I,\w ok Cax.xda. 
 
 K. S. (J.. .\rt. 5155 Sana- as I )oiiiinii>i), 1st pan ; 2nil purl omiiicil. 
 
 K. S. N, .S., cli. .s,v scc. 75. Same as "Jiielicc, excepting; (I) •MldM'in.)!- 
 it) ( 'ouiicil." 
 
 K. .^s, ()., ill. 170, sec. 102. Same as (Jiielisc, excep'.ing (i) " (..'ommis- 
 siimer of i'lihlic Works" 
 
 N. II.. iSi^l.ch. iS. M'C. S2. Simcas I jiiet)ec,e.xeeptin({ (l) " ChJif Com- 
 missioner of I'lililic Wuiks." 
 
 wrms ON ii>\ti'\\v'> i.wii IK UK ci.i dowx. 
 
 'il.**. Kvcry comp.my sli.ili c.iiisc ;ill iliistk-s and dllicr 
 noxious Weeds fiiowiiig on llit.- clear l.md or j;roiind adjoinini; ilic 
 railway and hclonjiini,' to such < oinpany to l)e cul down ((.'.irly 
 in July in caili year) (1) or 'o hv rootc<l out ; 
 
 J. I'Acry company wliicli fails 10 comply with this slm lion 
 shall incur a |)cnalty of two dollars for f\ciy day ihiiinj,' wliii h 
 such company ne^lci is to do anytiiinj; which it is so rcipiiriil to 
 do; and ihe n'ayor, lecvc or chiif ofVicer of the nuniicip.iliiy of 
 the township, comity or district in which the land or gioiind lit-s, 
 or any ju-ticc of the peace therein, may cause all thinj.;s id he 
 done which the said coinp.iny is so iKjuired to do, and for ili it 
 purpose may enter, by himself an 1 his .issisiants or wmknien, 
 upon such lands or groinids, and may recover the expenses and 
 charges incurred in so doinir, aiul the said penally, wiih costs, 
 in any court of rompcteni juristliction, and such p',*naliy siiall 
 he paid to the ])toper officer of the niunicii)ality. 
 
 N. H., 1S9I, ch. iS, sec. S4 " Kvery railway company, wiietlui .my of 
 the clauses or )iiovi>i.)ns of tlii-, .\ci are or are not incorporntnl with tiic 
 Act incorpoiatiii(j tiie company, shall caiivc all cleared land or i;roiind 
 adjoinii't; tticir railway, and lielon),'in^' to the I'omiiany, lob.' (l) cleared of 
 all thistles, and (ithc noxious weeds ^jrowinj; on the lands or j^roinids t ) lie 
 cut down and kept constantly cut down, or to lie lo.ited out of the same." 
 
 k. S. (.)., ch. 170, sec. 107. Same as New Hrunswick, exci-plin^ ( \) 
 " .sown 01 laid dovvn with i;rass or turf, and cause the same, as far as may lie 
 in iheir jiower, to he covered with f^rass ur turf, if not .already so covered. 
 
 K. S. <J.. .Art. SIho. Same as Dominion, Is", part, e.xceptiny ( I ) '• and 
 ke)it constanily cut down.'' 
 
 K. S. N. .S., ch. 5^, sec. 80. Same as ( hiehec. 
 
 N. U., 1891, ch. iS, sec. S4. If a railway company fails to coiiipl) «iih 
 the recjuirements of the last precediim section withm twenty days after they 
 have been reipiiitd to comply wiiii the same, by notice from the mayor 
 (warden) (2) or chief officer of the numicipality (3) ui wiiich tiie ^;round or 
 laiul lie-.. ((;) the Company shall nicu'- a penalty of (ten dolli;.'s) (41 to the 
 use of the immiciiiality, for each day during wliich they neglect to do any. 
 thing which they are lawfully reijuired 10 do by the notice ; and the said 
 mayor (warden) (5) or chief officer, (6) may c.lu-e all things to be done which 
 the company wev'^ lawhilly reijuireil to do by the notice, and for that pur 
 pose may en'i : ()y himself and his assistants or workmen upon the lands o 
 
 or 
 
 H 
 
K 
 
 Dominion an» I'RovwrtAL Railway Arts. cxxiii 
 
 Uroun.l., an.U«ch min.icipality may ram..,- Hu- "^l-'-'^V^;;;;, ;;!;;;[;;';,;"' 
 
 K. S O. cli. I/H, >-fC. IDS. Same as N. 1.. -cc S4, ^■'^'-1"",': \]> 
 "uVve-- (J) "of the lownshi,. or county," ^41 " two aollar>, (5) 
 
 " piiririi." 
 
 COMI'ANV MAYNi.T ITKCIIASK K.MIAVAV MU LK ITIKS. 
 ..^^« k. • i^.iii «titiii>i' fiiit'i'ii\ IP] 1 1 (Hi I 
 
 No company sl,a,.. euhcr dueoly or nuli-c Uv, « on.^shajc. 
 
 cini4ov nnv ol iis luiuls i.i llie i.uicliasc <.t Us own M... k, ..1 m ,,,„ ,„ ,,^. 
 the acquisilioM of any shares, l.onds cr other scn.ritics isst.ed by .UmU m. 
 anv otier .aihvav com^ in Canada ; In.t this shall not alfc.t hxu,.non. 
 the i-owcrs or rights whiciiany company in Canada now has or 
 possesses l.v virtue of anv spe<:ial Act to ac^iuire, iiave or liold 
 the slKires, 'bonds or other securities of any railway company 
 in the Cnilcd Slates of Amcrieaor Canada; nor shall it interfere 
 with the right conferr. d on the Noithern Railway Company 01 
 Canada, or the Hamilton & Norlh We-tern Railway Company, 
 to acquire slock in the Northern .V I'acif.- June.ion Railway 
 Company, under the Acts relating to the said first named com- 
 panies, respectively, passed by the I'ar.iament of Canada in the 
 forty-seventh year of Her Maje>ty's reign. 
 
 1- S O ch 170 -cc. -,7 (7>. " 'IV f,.nd. of Hi.' co.npany shall not l)c 
 e J;i.'c!?i;ul;c ;m^l«sei^ .\l^- >tock ,n their own o,- u, any oU,e, co,.,,any.- 
 
 K. S. , An. 5137 t^l- !^^'"<-' ^-^ Onuui .. 
 
 R S. M., ch. 130. SCC.95. SamcasOiUano. 
 
 n! li. , 1891 , ch. 18. sec. 29 (7)- Same as Untano 
 
 R. .S. N. S., ch. S3, sec. 22 (6). Same as O.uann. 
 
 r277 Kvery director of a railway company, win. knowin:Jy IVnaUy fo, 
 permits ihe funds of any such company to be applied in viola- 
 tion of the next preceding section, shall incur a penalty of one 
 thousand dollars for each such violation.-which i-enalty shall be 
 recoverable on information filed in the name of the Attorney 
 General of Canada ; and a moiety thereof shall belong f He. -M.gat.on 
 Majesty and the other moiety thereof shall bel.)ng to the in- 
 former -'and the acquisition of each share, bond or other security, 
 or interest, as aforesaid, shall be deemed a separate violation of 
 the provisions aforesaid. 
 
 II 
 
 tM 
 
CXXIV 
 
 The Railway Law ok Canada. 
 
 ::i 
 
 '1 
 
 il ' 
 h 
 
 IM 
 
 Il ••• 
 
 SALE OF RAILWAY TO PURCHASER 
 
 POWERS. 
 
 NOT HAVING CORPORATE 
 
 Sale of rail- 
 way to a pur- 
 cliaser not 
 liavini; Hfcus- 
 sary corpor- 
 ate powers. 
 
 Notice to tile 
 Minister. 
 
 And^copy of 
 deed of con- 
 veyance. 
 
 Until such 
 transmission 
 trains not to 
 he run. 
 
 Trovisional 
 operation of 
 the railwav, 
 
 License from 
 Minister. 
 
 ^18. If, at any time, any railway or any section of any rail- 
 way i.s sol J under the provisions of any deed of mortgage tliere- 
 of. or at the instance of the holders of any mortgage bonds or 
 del)cntuies, for the payment of which any charge has been 
 created thereon, or u;ider any other lawful proceeding, and is pur- 
 chased by any pe son or corporation which has not any coiporate 
 powers authorizing the holding and operating thereof by such 
 jnirchaser, — the jiurchaser thereof shall transmit to the .Minister, 
 within ten days from the date of such purciiase, a notice in writ- 
 ing, stating the fact that such jnirchase has been made, describ- 
 ing the termini and line of route of the railway purchased, and 
 specifying the charter or .\ct of incorporation under which the 
 same had been constructed and o])eiated, including a copy of 
 any writing, preliminary to a conveyance of such railway, which 
 has been made as evidence of such sale ; and immediately upon 
 the execution of any deed or convey uice of such railway, the 
 pmchaser shall also transmit to the .Minister a duplicate or an 
 authenticated copy of such deed, and shall furnish to the Minis- 
 ter, on request, any further details or information wjiich he 
 requires. 
 
 'iTD. Until the purchaser has given notice to the Minister in 
 manner and form as provided by the next preceding section, the 
 jiurcha-er sliail not run or operate the railway so purchased, or 
 take, exact or receive any tolls whatsoever in respect of any 
 traffic carried thereon ; bii^ after the said conditions have been 
 complied with, the purchaser may continue, until the end of the 
 then next session of the Parliament of Canada, to operate such 
 railway and to take and receive such tolls thereon as the com- 
 pany previously owning and operating the same was authorized 
 to take, and shall be subject, in so far as they can be made appli- 
 cable, to the terms and conditions of the charter or Act of in- 
 corporation of the said company, until he nas received a letter 
 of license from the Minister — which letter the Minister is hereby 
 authorized '■o grant — defining the terms and conditions on which 
 such railway shall be run by such purchaser during the said 
 period. 
 
Dominion and Provincial Raiiavay Acts. 
 
 cxxv 
 
 
 280 Sucl, purchaser shall apply to the Parliament of Canada ^P.;;^-^^^^^ 
 at the ni^xt following session thereof after the purchase o such j,,,,,,. 
 r ilway for an Act of incorporation or other leg.slat.ve authonty. 
 to hold operate and run such railway ; and if such apphcation '^ 
 to lioia, opcraic all ^ ,^^f,,i ,hp Minister may extend Extension of 
 
 made to Pa. liament and is unsuccessful, the Ainustcrm > ^ ^^^^^^^ 
 
 U; 1 cense to such railway until the end of the then next fo lo.- 
 
 ^s^: of Parliament, and no longer ; ..d if uru^ sue ex . ,n. acuon. 
 tended period the purchaser does not obtam such Act of n<-o. 
 noraion or other legislative authority, such railway shall be 
 cloTed or otherwise dealt with by the Minister, as is determu.d 
 by the Railway Committee. 
 
 railway constables. 
 '>81 (Any two justices of the peace, or a stipendiary orAginment 
 poUce magis rate, in the Provinces of Ontario, Nova Scotia ,„,,,,!,,. 
 X Brun wick. British Columbia, Prince •-d-a.d Wand o 
 Manitoba or the District of Keewatin, and any judge of the 
 Co of b'l een's Bench or Superior Court, or clerk of the peace 
 or lerk of\he Crown, or judge of the sessions of the peace in 
 tie Province of Quebec, and any judge of the Supreme Court o 
 to j stices of thl peace, in the North-West Tcr-one.^id a 
 Commissioner of Parish Court in the Province of New Brun 
 ^JiT^ Ton the application of the directors of any company 
 X;:^ri^Ly passellithin the local jur^dicuon c. si.h 3^^^^ 
 
 the sessions ot tlie peace, ..la ^"^ 
 
 , r .„v rlrrk or agent of such company the.elo 
 
 :;;! o^r ,. - "--, u - o. ,* d,« ,«,„.,, 
 
 ^t.,1' person, rccimm.ndcd for iku ,,>,r|>„» by such 
 ," 1 klr -.cen. to acl as ccslaWcs o., a..d along suci, 
 
 make a solemn declaration in the for.n o, to the effe, t lodo»,n,, 
 *"rrB!l^'i.>g l.c=n appointed a cor.stal.le to ac, t,„o„ , ,„„, ot oa.„. 
 
 .. ^^:Ly AC, • (3) do swear tltat I w,ll well and tta, 
 "serve Our Sovereign I.ad, the Queen m the =»'<! '.ffi;^ » 
 ..CO stable, without favorer afTeetion, mahce or ,11-tv.ll, and 
 
iJy «lioiii t. 
 be adminis- 
 tered. 
 
 Powers ()( 
 sueh con- 
 stable. 
 
 General 
 pinvers. 
 
 CXXVl 
 
 Tm; Railway Law ok Canada. 
 
 " llial 1 will, to the best of niy power, cause tlie peace to be 
 " ke]it, ;in<l prevent all offences against the peace ; and that, 
 '■ while I continue to hold the said office, I will, to the best 
 " (if my skill and knowledL;e, discharge the duties thereof, 
 " faithfully, according to law. .^o help me Clod." 
 
 K.S.O, ch. 170, sec. 81 (i), — (i) " 'I'he Justices of the I'eaee for any 
 coiimy assembled at any i;eneral .-essions (if tiie Peace," (2) oniitled, (3) 
 " <if Ontario." 
 
 K. S. Q,, Alt 520.S.— (I) "any Judge (jfthe Court of Q. B. or of the 
 .S. C. or clerk of the Court, (jr cleiU of tlie jieace, or clerk of tie Crown, or 
 judge of sessions of tlie peace," (2) "judge, clerk, or judge of the ses-ions 
 iif the peice,"" ("3) '• here in^ert the title of this section."' 
 
 *icS?i. 'Such oath or declaration siiall be administered in either 
 of I he Provinces of Ontaiio, Nova Scolia, New IJrunswick, 
 Mrilish Cohmibia, Prince Lulward Island or Manitoba, or in the 
 District ni' Kcewatin, by any one justice of the peace, and in the 
 Province of Quebec by any such judge, clerk, or judaic of the 
 ses:<ions of the ]ieace, and in the North-West 'Icrritories by any 
 such judge (jr by any one justice of the i)eace) (i) and every 
 constable so appointed, who has taken such oath or made such 
 declaration, ni.iy act as a constable for tl.e preservation of the 
 peace, and icr the security of [jcrsons and property against 
 felonies and other unlawful acts on such railway, and on any o' 
 the Works bvlonging thereto,— and on and about any trains, roads, 
 whaivcs, ([uays, landing places, warehouses, lands and premises 
 belonging to ^uch company, whether the same are in the count}', 
 ciiy (town, j^arisli). (2) dl^lri(l or other local jurisdiction within 
 which he was appointed, or m any other place ihrotigli which 
 such railway passes or in wiiich the same terminates, or through 
 or to which any railway passes which is worked or leased by such 
 ( ompany. — and in all places not more than a 'piarler of a mile 
 ilistaiil from such railway, — and shall have all such powers, pro- 
 tections and jMivilcges for th.e apprehending of offenders, as well 
 by night as by day, and for doing all things for the prevention, 
 discovery and prosecution of felonies and other offences, and for 
 keeping the peace, which any constable duly appointed has within 
 his constablewick. 
 
 R. S. O., ch. 170, sec. Si (2). — (i) "such oath or declaration shall be 
 administered by any one such Justice." 
 
 R. S. (^., Art. 5208(2). — (I) ''sucli oath or declaration shall be ad- 
 ministered by any such judge, cleik, or judge of the sessions of the peace.'' 
 
Dominion and Provixciai. R.mi.wav Acts. cxxvii 
 
 R. S.O., ch. 170. sec. S2.-(2) omiiled. 
 
 K. S. ().. Alt. 5208 (2). Same as Dominion. , , .• , ,,,11 
 
 R S N S ,ch 53, sec. 9S (2).-(l) " Ami nicl. .,ath c.r .kclaL-ilion shall 
 lic admini^teiod by any Mich warden or justice of the j-cace. 
 
 2S:$. Any sucli constable may take such persons as ^^r^-^l^^jj 
 ])unisliable bv summary conviction for any offence against the 
 provisions of this Act, or of any of tltc Acts or by-laws affecting 
 the railway, beiore any justice or justices api-oinled for any 
 countv, city, town, parish, district or other local juris.liclion 
 witl-.in which such railway p.asses ; and every such justice may 
 deal with all such cases, as though the off.nce had been com- 
 mitted and the persons taken within the limits of his own local 
 juri-diclion. 
 
 K. S. ().,ch. 170, sec. S3. 
 
 R. S. n., Art. 520S. 
 
 R. .S. iN. S.,ch. 53. sec. 59 (2). 
 
 '>S4. Any :wo justices of the i)eace (or a stipendiary of police l'i»jd of 
 magistrate, in either of the Provinces of Ontario, Nova Scotia, '"'" ' "• 
 New Prunswick, ISritish Columbia. Prince Kdward Island, or 
 Manitoba, or in the District of Keewaiin, and anv jud-c of the 
 Court of Queen's iiench or .Superior Court, or c'eik of the peace, 
 or clcik of the Crown, or judi,'e of tiie sessions of the peace, in 
 the Province of Quebec, and any jud-e of the Supreme Court, 
 or two justices of ihe peace in the Nordi-West Territories) (1) 
 miy dismiss anv such constable who is acting within their 
 several jurisdictions ; and the directors if such company, or 
 any clerk or agent of such comi^any the.eto aulhori/.ed by 
 'such directors, ^.nay dismiss any such constable who is act- 
 in- on such railwav ; and upon e-.ery such dismissal, all powers, Eiiect of dis- 
 pm.ections and privileges which belonge.l to any such per- -"'^^'-^l- 
 son by reason of such appointment shall wholly cease : and 
 no person so dismissed shall be again appointed or act as con- 
 stable for such railway, without the consent of the authority by 
 whom he was dismissed. 
 
 R. S O. ch. 170, sec. 84.— (I) omitted. 
 
 R S Art. S208(s ).-(!) '-AnyjudBeofthe Court of Queen's Bench or 
 of tliJ s'upe ior court, oV clerk of the peace, or clerk of the Lrown, or judge 
 of the sessions of the peace "-- any two Justices of the Peace' o-"'"'^^!- 
 
 R. S. N. S.,ch. 53, s«^c. 59 (3)- Substitute "any warden ot the mun.e ■ 
 pality or any justice of the peace," for first sight lines of sec. 284 Uom. Aa, 
 veniainder the same as Dominion. 
 
 li 
 
 ) 
 
w 
 
 ' 
 
 t 
 
 ( 
 
 i; 
 
 1 1 
 
 Hft' 
 
 CXXVIII 
 
 TnK Railway Law of Canada. 
 
 Kecord of ap- 285. Every such company shall cause to be recorded in the 
 
 be kept*^"^ '"^ °^''^<^ °f *''^' ^•'^'■^ "f ^'^*^ (peace), (<0 for every county (city, town, 
 parish, district) (i) or other local jurisdiction wherein such rail- 
 way ]iasses, ti e name and designation of every constable so 
 appointed at its instance, the date of his appointment, and the 
 authority making it, and also the fact of evi.'ry dismissal of any 
 such constable, il)e date thereof, and the authority making the 
 same, within one week after the date of s>uch appointment or dis- 
 missal, as the case may be ; and such clerk of the peace shall 
 keep such record in sucii form as the (Minister) (2) from time to 
 time cin cts, in a book wiiich shall be open to public inspection, 
 charging s'"-'' fee as the (Minister) (3) from time to time, 
 authorizes. 
 
 K. S. O., cli. 170, sec. 85. — (I) Oniiiteil, (2) " Lieutenant-Governor in 
 
 Council," (3) " Lieulenant-Cioveinor in Council." 
 
 R. S. ()., Alt. 52o,S (4).— (2) (3) '• Kailway Committee." 
 
 R. S. N. S., ch. 53, sec. 59 (4). — (2) (3) "Governor in Council." («) 
 
 " Municipality." 
 
 Punishment 
 of constable 
 guilty of 
 neglect of 
 duty. 
 
 •imitation 
 actions for 
 damages. 
 
 What may 
 pleaded. 
 
 280. Every such constable who is guilty of any neglect or 
 breach of duty in his office of constable shall be liable, on sum- 
 mary conviction thereof, within any county, city, district or other 
 local jurisdiction wherein such railway passes, to a penally not 
 exceeding eighty dollars, or to imprisonment, wiili or without 
 hard Ir'^or, for a term not exceeding two montiis. (i) Such 
 penalty may be deducleu from any salary due to such offender, 
 if such constable is in receipt of a salary from the company. 
 
 R. S. O., ch. 170, sec. 86. 
 
 R. S. <J.. Art. 5208 (5). — (I) " in the gaol of such county, city, disttict or 
 other local jurisdiction." 
 
 R. S. N. S., ch. S3, sec. 59 (5). 
 
 LIMITATION OI'- .ACTIONS FOR DA.MA(;ES — GENF.KAL IS.SUE. 
 
 of 'ZHH. All actions or suits for indemnity for any damages or 
 injury sustained by reason of the railway shall be commenced 
 within (one year) (i) next after the lime when such sup])osed 
 damage is sustained, or if tiiere is continuation of damage, within 
 (one year) (2) next alter the doing or committing of such damage 
 
 be ceases, and not afterwards ; and the defendants may plead (the 
 general issiie) (3) and give this Art and the special Act and the 
 special matter in evidence at any trial to be had thereupon, and 
 may pnjve that the same was'^done jn pursuance of and by the 
 authority of this Act or of the special Act. 
 
_DoMlMON AND PrOVINCIAI, RAII-WAY ACTS. CXXIX 
 
 K. S. O.. ch. 170, sec. 42 (1 ).-'!) "si^ months,- (2) "six months," 
 I" -■ I •■ not "iiiliv I3V statute. . .... 
 
 -'i' S d" Art Ut; f I ). S.ime as 1 )ominion,omuiin!; '• or if there is con- 
 tinuation ^o'f clama^e\vi.hin one year next after the ck,>ntj or commulms; of 
 such damage ceases, ami not .-mervvMnls. • r 2\ '• .i- -onths " 
 
 R S. M..ch. I',o, sec. lib.- I) "s,x months, (2) si.. !i.ont is. 
 
 N. 15., iSoi. cli. IS, sec. .^3- ^'-*'"-- ^^^ l>0'"'"'->. '•"^'^eptmg (3) not 
 
 ^"u^sfN^srch.S^.sec.aGfD-C.) "six months," (2) " six months," 
 (;) omitting "the general issue, and give. 
 
 COMPANV NOT RKLIKVKU KRO.M LK.'.AL l.IAl!II.ITV 1!V IN.SPECIION 
 OR ANYTHING HONE IIEREUNUKK. 
 
 288. No inspection had under this Act, and nothing in this I-^pecti^^^^^ 
 \ct contained, and nothing done or ordered or omitted to be ^,^^r^.^ ^^,^^. 
 done or ordered, urder or by Yirtue of the provisions of this Act, v^^f^^^ 
 shall relieve, or be construed to relieve, any company of or from '^^' • • 
 any liabilitv or resi^onsibility resting upon it by law, either 
 towards He'r Majesty (or towards any person) (/') or the wife or 
 husband, parent or child, executor or administrator, tutor or 
 curator, heir or personal representative of any person, for any- 
 thin-' done or omitted to be done by such company, or for any 
 wrongful act, neglect or default (misfeasance, malfeasance or 
 nonfeasance) (</) of such company, or in any manner or way to 
 lessen such liabilitv or responsibility, or in any way to weaken or 
 diminish the liability or responsibility of any such company, 
 under the (laws in force in the Province in which such liability or 
 responsibility arises), (i) 
 
 R S O., ch. 170. Gee. OS.-(I) " existing laws of the Province/' _ 
 R S O Art. Sl99.-(.') omitted, (I) " laws in force .n this Province 
 N. B., .'89., ch IS, sec. 5S.-(i) omitted, (I) "laws existing in this 
 
 Province." ,_ 
 
 R S. N. S.. ch. 53. sec. 51. Same as Dominion. 
 
 OFFENCES AND PENALTIES. 
 
 389. Every company, director or officer doing, causing or per- Liability o:^^ 
 milling to be done, any matter, act or thing contrary to the pro- j,^ ^^.^^ ' 
 visions of this or the special Act, or to the orders or dirf-clions ot specified. 
 the Governor in Council, or of ihe Railway Committee or Mm- 
 isler made hereunder, or omitling to do any matter, act or thing 
 required to be done on the part of any such company, director or 
 officer, is liable lo any person injured thereby for the full amount 
 of dariiages sustained by such act or omission ; and if no other Penalty. 
 
 I 
 
 M 
 
r 
 
 ■ I 
 
 ii 
 
 \ MM 
 
 
 
 M:' -^: 
 
 '¥^<C 
 
 cxxx 
 
 The Railway Law of Canada. 
 
 penalty is in this or the special Act provided for any such act or 
 omission, is liable, for each offence, to a penalty of not less than 
 twenty dollars, and not more than five thousand dollars, in the 
 discretion of the court before which the same is recoverable ; 
 
 Application 2. This section shall only apply to companies and directors 
 of this section. ^yi(] officers of companies within the legislative authority of the 
 Parliament of Canada. 
 
 Damapes for 
 extortionate 
 toll. 
 
 Penalty for 
 placing bag- 
 gage cars in 
 rear of pas- 
 senger cars. 
 
 Intoxication a 
 misclenieanor. 
 
 Penalty for 
 selling liquor 
 to employees^ 
 
 Punishment 
 for violation 
 of certain by 
 laws. 
 
 Ji90. Every person from whom any company exacts any un- 
 just or extortionate toll, rate or charge shall, in addition to the 
 amount so unjustly exacted, be entitled to recover from the 
 company as damages an amount equal to three times the amount 
 so unjustly exacted. 
 
 /391. Every officer or servant of any company, or any person 
 einployed by it, who directs or knowingly permits any baggage, 
 freight, merchandise or lumber car to be placed in the rear of the 
 passenger cars, is guilty of a misdemeanor. 
 
 R. S. M., ch. 131, sec. 36. 
 
 393. Every person who is intoxicated while he is in charge 
 
 of a locomotive engine, or acting as the conductor of a car or 
 
 train of cars (is guilty of a misdemeanor), (i) 
 
 R. S. Q., Art. 5173 (II).— (i) "shall be liable to a fine of not less than 
 twentj'-five or more than one hundred dollars." 
 
 393. Every person who sells, gives or barters any spirituous 
 or intoxicating liquor to or with any servant or employee of any 
 company, while on duty, is liable on summary conviction to a 
 penalty not exceeding fifty dollars, or to imprisonment with or 
 without hard labor for a period not exceeding one month, or to 
 both. 
 
 394. Every officer or servant of, and every person employed 
 by the company, who wilfully or negligently violates any by-law, 
 rule or regulation of the company lawfully made and enforced, or 
 any order or notice of the Railway Committee (or of the Minis- 
 ter), (a) or of an inspecting engineer, of which a copy has been 
 delivered to him, or which has been posted up or open to his 
 inspection in some place where his work or his duties, or any of 
 them, are to be performed, if such violation causes injury to any 
 
 ' f 
 
Dominion and Provincial Railway Acts. cxxxi 
 
 person or to any property, or exposes any person or any pro- H ^ry is^.^^ 
 perty to the risk of injury, or renders such risk greater than it ofinjury is in- 
 would have been without such violation, although no actual creased, 
 injury occurs (is guilty of a misdemeanor, and shall, in the dis- 
 cretion . the court before which the conviction is had, and ac- 
 cording as such court considers the offence proved to be more or 
 less grave, or the injury or risk of injury to person or property 
 to be more or less great, be punished by fine or imprisonment, 
 or both ; but no such fine shall exceed four hundred dollars, and Penalty hmu- 
 no such' imprisonment shall exceed the term of five years), (i) 
 
 U S O Art !;2i6.— (I> "the person convicted of such contravention 
 shall ,n the discretion of the court before whom the conviction .s had, be 
 punished by fine or imprisonment, so that no such fine exceeds $400 nor any 
 such imprisonment the term of five years." (</) omitting. 
 
 395. The company may, in all cases under (the next Pre- Deduction^of 
 ceding section), (i) pay the amount of the penalty and costs, and ^^^^^^ ^,. ,.^. 
 recover the same from the offender or deduct it from his salary covery. 
 
 or pay. 
 R. S. O., ch. 170. sec. iio.-(i) " this Act, or under the Railway Act of 
 
 ^k'^s'*Q., Art. 5219.— (i) " the three next preceding articles." 
 
 396. Every person who wilfully or'.negligently violates any by- P-^lf^jyJ^Jf 
 Iw rule or regulation of the company is liable, on summary con- ^y-iaws, etc., 
 viction, for each offence, to a penalty not exceeding ihe amount generally, 
 therein prescribed, or if no amount is so prescribed, to a penalty 
 
 not exceeding twenty dollars ; but no such person shall be con- Exception, 
 victed of any such offence, unless at .the time of the commission 
 thereof a printed copy of such by-law, rule or regulation was 
 openly affixed to a conspicuous part of the station at which the 
 offender entered the train or at or near which the offence was 
 committed. 
 
 397. Every person who, — 
 
 (a) Bores, pierces, cuts, opens or otherwise injures any cask, P^uni^^lin^^ent 
 box or package, which contains wine, spirits or other liquors, orOJ!=^^°^^^ 
 any case, box, sack, wrapper, package or roll of goods, in, on or boring casks 
 about any car, wagon, boat, vessel, warehouse, station house, or packages, 
 wharf, quay, or premises of, or which belong to any company, 
 with intent feloniously to steal or otherwise unlawfully to obtain 
 or to injure the contents, or any part thereof; or,— 
 
M 
 
 ti 
 
 ii 
 
 Drinking or 
 wasting 
 liquor. 
 Penalty. 
 
 Interpreta- 
 tion ; " com- 
 pany." 
 
 Annual re- 
 turns to l)e 
 prepared. 
 
 How attested 
 
 cxxxii 
 
 The Railw.w Law ok (Canada. 
 
 What period 
 to be includ- 
 ed. 
 
 Duplicate for 
 the Minister. 
 
 {b) Unlawfully drinks or wilfully spills or allows to run to waste 
 any such liquors, or any ])art thereof, — 
 
 Is liable, on summary conviction, (i) to a penally not exceed- 
 ing twenty dollars over and above the value of the goods or 
 liquors so taken or destroyed, or to imprisonment with or without 
 hard labor for a term not exceeding one month (or to both). (2) 
 
 R. S. (,),,Art. 5214. — ( I )" before one or more justices of the peace," (2) 
 omitted. 
 
 .ST.'\TISTIC.S, 
 
 li08. In (the following sections of this Act down to section 
 tiiroe hundred and five inclusive, unless the context otherwise re- 
 quires), (1) the expression ''company " means a company (2) con- 
 structing or operating a line of railway in (Canada, whether other- 
 wise within the legislative authority of tlic Parliament of Canada 
 or not), (3) and includes any individual or in.lividuals not incor- 
 porated, who are owners or lessees of a railway in (Canada) (4) 
 or parties to an agreement fi^- working a railway in (Canada). (5) 
 
 R. .'^. Q., -\rt. 5177. — (I) "this subsection," (2) "incorporated either 
 before or after the coming into force of these Revised Statutes fortlie purpose 
 ofj" (3) " this province,'' (4) " the said province," (5) " the same." 
 
 301). Every company shall aniuially prepare returns in 
 accordance with the forms contained in schedule one to this 
 Act, of its capital, traffic and working expenditure, and of 
 all information required, as indicated in the said form, to 
 be furnished to the Minister ; and such returns shall be dated 
 and signed by, and attested upon the oath of the secretary, or 
 some other chief officer of the company, and of the president, 
 or, in his absence, of the vice-president or manager of the com- 
 pany ; 
 
 2, Such returns shall be made for the period included from the 
 date to which the then last yearly returns made by the company 
 extended, or froin the commencement of the operation of the rail- 
 way, if no such returnsfhave been previously made, and, in either 
 case, down to the last day of June in the then current year ; 
 
 3. A duplicate copy of such returns, dated, signed and at- 
 tested in manner aforesaid, shall be forwarded by such company 
 to the Minister within tliree months after the first day of July in 
 each year ; 
 
 IN 
 
 'i 
 
If 
 
 Dominion anu 1'rovinciai. Railnvay Acrs. 
 
 CXXXlll 
 
 4 The coHMViny shall also, in addition to the information re- Fui^*;- - 
 cin;cd to be furnished to the Minister as indicatxl n. the sa.d e.uired. 
 schedule one, furnish such other n.format.on and .eturns as 
 are, from time to time, required by the Mm.ster ; 
 
 Every companv which makes default in forward.ng such I enaUy^^^^. 
 returns in accordance with the provisions of th.s sect.on shall „,e. 
 ;:cur ; penalty not exceeding ten dollars for every day dur.ng 
 which such default contmues ; . r, . i 
 
 6 The Minister shall lay before both Houses of Parhament R™Jo ,. 
 within twenty-one days from the commencement of each session p^^^,i,„,„„, 
 Thereof! the returns made and forwarded to him in pursuance of 
 
 this section. , ., 
 
 .. Cfi\ " \ftei- the opening of tlie railway, oi 
 R. S. O.. cl,. 170, sec 44 (6 • . j'^ f^'^t Wteen days after the open- 
 any part thereof, ^-^y:f'l;;^^^:^t^):^S.t sum d annuaUy trans- 
 ing oi each session of tht L';S'^ ^.\"^ containing a detailed and particular 
 
 ES's;i^i:^^ora^^P:^ers trd^^S tra^ported i. them, with 
 ^"rTo^^nll^Jo'^^'^^eSoSo.exceptingXa) " three branches 
 ^'i^'Q.!An.V78. " Every con,,any shall ^nua.>M-l-e ^ 
 
 of their capital, in ^'^'^'^^'^^^'^'r;^ ^^'^J^^T:^^^^^ officer of 
 and a co,>y of such 'f^'^'^'^^^^^^^^S^ the officer of the con.pany 
 the company resulcnt '"/'''"■/ '°!"^,.etun or any part thereof, shall be 
 responsible ior the correctness of ^"^; 'f '" ^^^ "„^ ^i^ly,^ NVoiks, not later 
 foiwarded by tlic company to he <-"™"> f '' ^' " i,r year ; together with a 
 than (tluee) (/') months after ^'^ ^^.f t he .nf^^a.d \vorking\-.xpenditure. 
 copy of the llien last annual return f/'^*^. ''^^'^(^/^"cordance with, the pro- 
 .vll/ch every such company - -.'f^^f , °„ ; ^ I', on "o b veiUled in manner 
 :SC:::aSsa- irSlSi^^O i:"^^:^ ^- ^ ^>^e said Commis^oner 
 
 -l\C-^m;^;;SSsto.rwardt^ 
 
 .. Railway Commissione^fot-M^^^^^^^^^ 
 
 ^ >^"\^ ^ 'c \\ sec 20/ Same ns Quebec, A.t. 517S. excepting (j 
 .. tt"; t) '' accorMng to fo^m shown in schedule a of tins chapter or, (.) 
 « fifty!" 
 
 cUnll vvppklv Diepare returns of its Weekly re- 
 300. Every company shall, \%eckiv, pici le ^^ ^ -.,.,„ turns to be 
 
 traffic for the next preceding seven days, m accordance with the ^^^^^^ , 
 
 ; m con ained in schedule (two) (x) to this Act, and a copy f trat.nutte-1. 
 
 Z returns, signed by the officer of the company responsible 
 
 H)-i 
 
CXXXIV 
 
 The Railway Law of Canada. 
 
 I, 
 
 n 
 
 I ' 
 
 S;if 
 
 :ll 
 
 Cojiy to 1)L' 
 posted up. 
 
 Penalty for 
 non-compli- 
 ance. 
 
 for ihe ( orrectness of such returns, shiill be forwarded by the 
 company to the (Minister) (:) witliin seven days (from the day 
 in each week up to which the said returns have been prepared), 
 (3) and another copy, of each of such returns, signed by the 
 same officer, shall be posted up by the company within the same 
 delay, and kept posted up for seven days, in some conspicuous 
 place in the most public room in the head office of tiie com- 
 pany in (Canada), (4) and so that tlie same can be perused by 
 all persons ; and free access thereto shall be allowed to all per- 
 sons during the usual hours of business at such office, on each 
 day of the said seven days not being a Sunday or holiday ; 
 
 2. Every company which makes default in forwarding the 
 said weekly returns to the (Minister), (5) or which fails to post 
 up and keep posted up a copy thereof as aforesaid, and to allow 
 free access thereto as aforesaid, shall incur a penalty not exceed- 
 ing ten dollars for every day during which such default con- 
 tinues. 
 
 R. S. Q., Art. 5179.— (i) "B," (2) "Commissioner," (3) omitted, (4) 
 "the l^rovince," (5) "Commissioner." 
 
 Penalty for 301. Every person who, knowing the same to be false in any 
 
 sif^ning lalse particular, signs any return required by the two sections next 
 
 preceding (is guilty of a misdemeanor), (i) 
 
 K. S.N. S., ch. 53, sec. 31 (i). — (i) " shall be liable, on conviction thereof, 
 to a penalty not to exceed two hundred and fifty dollars." 
 
 302. Every company shall, within (one month) (i) after the 
 first days of January and July, in each and every year, make to 
 the (Railway Committee), (2) under the oath of the president, 
 secretary oi superintendent of the company, a true and particu- 
 lar return of all accidents and casualties, whether to life or pro- 
 perty, which have occurred on the railway of the company during 
 the half year next preceding each of the said periods respectively, 
 setting forth, — 
 
 (a) The causes and natures of such accidents and casualties ; 
 
 (/') The points at which they occurred, and whether by night 
 or by day ; 
 
 (c) The full extent thereof, and all the particulars of the same ; 
 
 And shall, also, at the same time, return a true copy of the 
 existing by-laws of the company, and of its rules and regulations 
 for the management of the company and of its railway. 
 
 Return of 
 accidents to 
 be made. 
 
 Cause and 
 nature. 
 Locality and 
 time. 
 
 Extent and 
 particulars. 
 Copies of by 
 laws. 
 
u 
 
 Dominion ano Provincial Railway Acts. 
 
 cxxxv 
 
 R. S. 0.,ch. .70, sec. 72.-(.) "ten -lays," (2) "Commissioner of I'ab- 
 
 lie Works."' 
 
 r> c ^^ Art nn7 Siiiiie iis Dominion. , , « 
 
 N B- ?8ot ch^Ts/sec. 50 -(■) "ten day,." (a, " Chief Commissioner of 
 
 ^TlT^fc,. 53, -. 54.-(^) "Governor in Council." 
 
 303 The (Minister) (i) may order and direct, from lime to J;;;;;-;^;;; 
 time, the form in which such returns shall be made up, and may ..escribed. 
 orde and direct any company to make up and dehver to (the 
 Minister), (2) from time to time, in addition to the said penod.ca 
 returns, returns of serious accidents occurring m the course of 
 the public traffic upon the railway belonging to such company 
 whether attended with personal injury or not, m such form and 
 manner as the (Minister) (3) deems necessary and requires for 
 his information with a v>ew to tlie public safety. 
 
 R S. 0.,ch. .70, sec. 73-(0 "Commissioner of Public Works," (2) 
 '"tit^^AT'^iS^l -'^-l-y Committee," (a) "them," (3) 
 " n"h"189., ch. 18, sec. 6o.-(.) -'Chief Commissioner of Public 
 
 (3) " Governor in Council. ' 
 
 304. If the returns required under the two -ctions next pre- Penalty for^_ 
 ceding, so verified, are not delivered within the respective t.nries .^^ ^^^^^„ 
 in the said sections prescribed, or within fourteen days after the 
 same have been so required by the (Minister),!(0 every company 
 which makes default in so doing shall forfeit to Her Majesty the 
 sum of one hundred dollars for every day during which the com- 
 pany neglects to deliver the same. 
 
 R. S. O., ch. 170, sec. 74.-(0 " Commissioner." 
 li S O Arts 1:204.— (I) " Committee. • ■ •. 
 
 N B, ISO , h ^lS,tec. 6..-(i) " Chief Commissioner ' 
 R.S. N S.;ch. 53, ^'^c. s6.-(>) " Goveinor-in-Councl. 
 
 305. All (I) returns (made in pursuance of any o^/';^ P-y^ ^Slleged 
 sions of the seven sections of this Act next preceding) (2) shall be ^,,„^„„i,,. 
 privileged communications and shall not be evidence m any court tions. 
 whatsoever. 
 
 R. S.O.,ch.i70,sec.75- (.) " such," (2) otnilted. 
 R S. O, Art. 5205 and 5181- i'^iie as Ontario. 
 
 N B.. iVoi, ch. IS, sec. 62. Same as Ontario. 
 RS. N. S. ch.53,^ec.57. Same as Ontario. 
 
CXXXVI 
 
 'I'lir, Raii.wav I,\\v ok {'\\\!i\. 
 
 CKRTAIN IwMI.W \VS liKclAkKD WoKKsKiK CI N I R MAHV \ N 1 Ai .K 
 
 (II I ANAI'A. 
 
 Certain rail 
 ways (Itxlar 
 
 t(l to llU 
 
 wiirks for 
 
 IUH\. 'I'lic IiitLTCoIonial Railway, the (liaiid Trunk Railway, 
 the North ShorL* Railway, ihc Noiliicm Railway, tin- ilamiltDii 
 iV NorlhWcstcni Railway, ihr (^iiiaila Soiiiiurn Railway, the 
 OiS'^"'" "^ Great Wi-steni Railway, the Credit Valley Railway, the Ontario 
 i\: niichcc Railway, and the (anadian I'a( ific Railway, are 
 hereby declared to he works for tiie general advantage ofC.inada, 
 and each and every hraiK h line or raihv.iy now or hereafter con- 
 necting with or crossing the said lines of railway, or any of them, 
 is a work'for the general advantage of Canada. 
 
 To Ik; sul)jict 307. Every such railway and branch line shall hereafter be 
 auiliorUy of*^ subject to the legislative authority of the Parliament of Canada; 
 ParlianR'nt. but the provisions of any Act of the Legislaliire of any Province 
 of Canada, 5passed jjiior to the twenty-tilth day of May, one thou- 
 sand eight hundred and eighty-three, relating to any such rail- 
 way or branch line, and in force at lliat date, shall remain in 'orce 
 so far as they are consistent with any Act of the Parliainent of 
 ("anada passed after that date. 
 
 Statutes of Can., i8<)3, 56 Vic, cli. 27. sec. t,. The electric railway, for the 
 coiislruclioii and o|)eralioii of whicii | ewer was ^iveii t" the M.nyara l-alls 
 Park ot Kiver Kailway C'oni])aiiy liy the .Vet of the I.(j;islatinv of Ontario, 
 fifty tiflli Victoria, chapter ninety-six, is])erel)y declared not to be alkctt'd by 
 sections three luindred and six and three hiindreil and seven of '/ /w A'ai/uniy 
 .lit, so long as the said railway is operated liy cKeiiicity ; and it is hereby (iir- 
 liier declare<l and enacted thai the said electric railway shall not be deeintd to 
 be al'lecled by any .\ct respecting railways lieieafter passed, unles.s such Act 
 is in express terms declared to extend tliereto. 
 
 Certain Acts 
 of Provincial 
 I.e^islalurcs 
 may be con- 
 firmed. 
 
 liOS. The Covernor-Ceneral may, at any time and from time 
 to time, by protlamalion or proclamations, confirm any one or 
 more of the Acts of the Legislature of any Province of Canada, 
 passed before the passing of this Act, relating to any railway 
 which, by any Act of the Parliament of Canada, has been declared 
 to be a work for the general advantage of Canada, and I'rom and 
 after the date of any such proclamation the Act or Acts thereby 
 declared to be confirmed shall be confirmed, ratified and made 
 as valid and effectual as if the same had been duly enacted by 
 EtTectofsuch the Parliament of Canada. All acts, matters and things which 
 coniinnation. j^^^^ j^^gj^ or may lieroafter be done under any Act which may 
 

 Dominion anu 1'kovinci.m. Kmi.wav Acts, cxxxvn 
 
 be so conf.rmod by pn.danvuion. a.ul wlucl. miKht lawfully have 
 been done if such Act or Acts which shall be so conhrmcd y 
 proclamation had been within the com,.ct.ncc o the -'^P '.^^ 
 e^islatures by which the same were adopted, shall be .at, hcd 
 and confirmed, and made as good and vahd as ,f such A. tor 
 Acts had, at the several dates at which the san.e purport respcc- 
 Uvdy to have come into force, been enacted by the I'arhament 
 of Canada. 
 
 RKPKAI-. 
 
 309. This Act shall be substituted for the Revised St^Uutes, Re,.al.J..S. 
 chapter one hundred and nine, which with the Act hl.y and hi y- ,, , v.. 
 one Victoria, chapter nineteen, intituled "./. Act i. .mani t„e.. u. 
 Railway Act;' is hereby repealed. 
 
 SCHEDULE ON K. 
 
 Form of yearly returns to the Minister of Railways and Canals 
 required from railway com,.anies under " The RaU^oay AJ. 
 Rkturns made by the {cor/^oratc name of the Cowpnny) n^ pui- 
 
 the {insert the day to u'hich the last returns extend or the, late 
 of the commencement of operations, as the case may be), to the 
 last day of June, in the year uS 
 
 LOCATION AND GENKRAI. DESCRIPTION OF RAILWAY. 
 
 the county or counties throu,s:h ichich the railway runs, 
 
 ,', and .Kiv/Ui,' a general 
 
 Showing 
 
 the terminal points, connections, if any 
 
 description of the line and the country through which tt fass.s. 
 
 Statement containing copies of all contracts made by the Com- 
 pany, for the construction of any part of the railway. 
 
u 
 
 CXXXVIU 
 
 The Railway Law of Canada. 
 
 Returns of the Capital Account of the said Railway, and the 
 Revenue and Expenditure, etc. 
 
 No, I.— Capital Account. 
 
 
 
 
 
 . 
 
 
 
 
 C 
 
 "w 
 
 Cm 
 
 o Z, c 
 
 
 
 
 4Ji 
 
 
 
 
 
 
 
 
 
 
 
 3 N 
 
 < 
 
 
 'a 
 
 ?|5 
 
 
 
 $ Ct!-. 
 
 $ cts. 
 
 $ cts. 
 
 $ cts. 
 
 Total amount of ordinary share capital . . 
 
 
 
 
 
 do 
 
 of preference share capital . 
 
 
 
 
 
 do 
 
 do 
 
 
 
 
 
 do 
 
 do 
 
 
 
 
 
 do 
 
 do 
 
 
 
 
 
 do 
 
 of ordinary bonds 
 
 
 . 
 
 
 
 do 
 
 do 
 
 
 
 
 " 
 
 do 
 
 do 
 
 
 
 
 
 do 
 
 do 
 
 
 
 
 
 do 
 
 do 
 
 
 
 
 
 do 
 
 of Government loans 
 
 
 
 
 
 do 
 
 do bonuses . . 
 
 
 
 
 
 do 
 
 do subscription 
 to shares. 
 
 
 
 
 
 do 
 
 do suljsciiption 
 10 bonds. 
 
 
 
 
 
 do 
 
 of municipal loans 
 
 
 
 
 
 do 
 
 do bonuses 
 
 
 
 
 
 do 
 
 do subsciiplionto 
 shares 
 
 
 
 
 
 do 
 
 do subscription to 
 bonds 
 
 
 
 
 
 do 
 
 from other sources. ... 
 Total capital 
 
 
 
 
 
 *State whether dividend is cumulative or not. 
 
 This statement must agree with the totals shown in the 
 report of the company, a copy of which is to be transmitted also. 
 If there are more issues of preference shares or bonds than one, 
 state them, and the amount of each class. 
 
 If any floating debt exists it must be stated, so as to make the 
 total agree with the published report. 
 
 iin: 
 
 li 
 
Dominion and Provincial Railway Acts, cxxxix 
 
 No. 2.-L0ANS OR Bonuses from Governments or Munici- 
 palities. 
 
 From what 
 source. 
 
 Governments. 
 
 o 
 
 § S c 
 
 s o 
 < 
 
 e 3 - 
 3 5 c 
 
 c 
 "a 
 
 e 
 
 .2 m 
 
 C o 
 
 3 
 
 o 
 
 u 
 d 
 
 Pi 
 
 ° S 
 
 $ cts. $ cls.l $ cts. $ cts.| $ cts. $ cts. 
 
 Total . 
 
 Municipalities., 
 Total 
 
 No. 3 
 
 .-Bonds or other Securities Negotiated by the 
 Company. 
 
 Amounts. i Rate of Interest. 
 
 Date of Sale. 
 
 $ cts. 
 
 $ 
 
 cts. 
 
 No. 4.-SALES of Land made by the Company. 
 
 Acies Sold. 
 
 Price per Acre, j Amount. 
 $ els. $ '^'*' 
 
 No. 5. — Floating Debt. 
 
 Amount. 
 
 $ cts. 
 
 Remarks. 
 
1 ; 
 
 T 
 
 . 
 
 I Hi 
 
 1 
 
 cxl The Railway Law of Canada. 
 
 No. 6.— Charactkristics ok Road, Etc. 
 
 Owned. 
 ♦Length of main line from to. 
 
 <lo bnincii from to. 
 
 do do to. 
 
 do do to. 
 
 do do to. 
 
 Leased. 
 
 Leiijitli of railway' from to.. 
 
 do do to.. 
 
 do do to . 
 
 do 
 
 .to. 
 
 Totiil mileurre worked 
 
 Miles. 
 
 Li'Dgtli of road laid witli iron rails. 
 
 do 
 
 steel rails 
 
 do of sidings 
 
 do of double track (if any) ] 
 
 Weiijlil of rail jier yard, main line, iron jLbs. 
 
 do do do steel I do 
 
 do do branches, iron : do 
 
 do do do steel | do 
 
 Number of en;.!ine iioiises and shops | 
 
 do of engines owned by ("ompany 
 
 do do hireil .| 
 
 do of first-cla.S'j passenger cars owned by (Jonipany... ., 
 
 do do do liired , 
 
 do of second-clas-i and emigrant cars owned by Company. . 
 
 do do do hired 
 
 do of bagg.ige, mail and express cars owned by Coni[iany.., 
 
 do do do hired 
 
 Number of cattle and bo.\ freight cars owned by Company 
 
 do do do hired , 
 
 do of [ilatform cars owned by Uo iipany , 
 
 do do liired , 
 
 do of coal cars owned by Company 
 
 do do liired 
 
 do of ties to mile, main line 
 
 do do branches 
 
 Nature of faslenings used to secure joint of rail 
 
 Number of grain elevators 
 
 tCajiacity ct do at 
 
 do do 
 
 do do 
 
 Number of level road crossings at which watciimen are employed. 
 
 do do without watchmen 
 
 do ot overhead bridges 
 
 Height of do above rail level 
 
 Number of level crossings ol otiier railways 
 
 do of junctions willi other railways.. 
 
 do do branch lines 
 
 Radius of shari)e3t curve 
 
 Number of feet jier mile of heaviest gradient 
 
 Gauge of railway 
 
 
es. 
 
 DOMINION AND PROVINCIAL RAILWAY ACTS. cxli 
 
 No. 7.-ACTUAL Costj^^^^ail^I^a^LSolun^^ 
 
 f cts. 
 
 in Hid. if liny i'^'- V,^i;,'^ ■itiuion biiilrtings. etc.. 
 
 Total I 
 
 tl,e veal cash rost_r£constructiojuuMl r.>llin- stock 
 under constniction, tin' Ui'.^;''' '"'i"-' 
 
 The fthovp t otal to s linw 
 
 Mfthe liiie, or any iioition of it, is 
 •=°;S wil^^MlS^are situated, and t„e capacity of eacl,. 
 No 8_OpERATIONSOKTHEYKARANDNUMBEROFMn.KSkr. 
 
 1. Miles run by passenger tiains 
 
 2. do frt ii,'ht trains ' 
 
 do mixed trains "^ 
 
 4. Total miles run by ti ains 
 
 c. do engines...... 
 
 6. Total nnmlx^r "^ P-llp-i^^^l^V^^o-fb^/ca.;;;!). 
 8. Avera^jate of spee.l of l^Sn:"V.V:::' ' ^' •• 
 
 10* Average weight of passenger t.ains in motion 
 
 10. A%erag ^^^ b i^^.^^^^ trai ns m motion. . ^- 
 
 No. 9 
 
 DKSCRnn-ioN of FreiohtCaRR^eu. 
 
 i Weight in 
 Tons. 
 
 Flour in barrels, No '..',"! 
 
 Grain in bushels, No 
 
 Live stock, No •.•••■■■' ' " J "r^ . ... 
 
 Lumber of all kind?, excepting fireNvood, ft 
 
 l-irewood, number of cords of 1 28 cubic ft • • • • • -^ • • _ 
 
 Manufactured goods ,, 
 
 All other articles 
 
 Total weight carried 
 
 No. ioI^arninos of the Raj^lwa^^ 
 
 $ ct- 
 
 1. From passenger traffic 
 
 2. From freight traffic . • • • ' 
 
 3. From mails and express freight 
 
 4. From other sources 
 
 Total.... 
 
 ■I 
 
w 
 
 mmmm 
 
 cxlii 
 
 The Railway Law of Canada. 
 
 No. II.— General Tariff of Tolls Established by 
 THE Company. 
 
 No. 12.— Special Rates of Tolls Established by the 
 
 Company. 
 
 No. 13, A.— Operating Expenses— Maintenance of Line, 
 
 Buildings, etc. 
 
 1. Wages, etc., of labor employed on track, including sidings 
 
 2. Cost of iron rails and fastenings 
 
 3 . do steel do 
 
 4. Hallasting 
 
 5. Repairs of bridges and culverts 
 
 6. do and renewals of buildings 
 
 7. do of fencing 
 
 S. Clearing snow 
 
 g. Engineering superintendence 
 
 Total 
 
 cts. 
 
 No. 13, B. — Operating Expenses — Working and Repairs 
 
 of Engines. 
 
 1. Wages of engineers, firemen .ind cleaners 
 
 2. Cost of coal for fuel 
 
 do wood do 
 
 3. Repairs of engines and tenders 
 
 4. Oil, tallow, waste, etc., for engines 
 
 5. Pumping engines 
 
 6. Repairs of tools and machinery 
 
 7. Superintendence 
 
 Total 
 
 $ cts. 
 
 m 
 
 '"^. 
 
Dominion and Provincial Railway Acts. cxliu 
 j^o 13^ C.— Working and Rei'Airs ok Cars. 
 
 $ CIS. 
 
 ,. Wages and materials for repairs of passenger cars . . . . . . i 
 
 2. do do do treight cars and snow 
 ploughs 
 
 3. Superintendence " ' " " 
 
 Total 
 
 No 13, d.-Operating Expenses -General and Oper/vting 
 
 Charges. 
 
 $ cts. 
 
 4 
 
 5- 
 6. 
 
 ?• 
 8. 
 
 9- 
 10 
 II 
 12 
 13 
 
 Office expenses, including directors, auditors, manage- 
 ment, travelling expenses, stationery, etc 
 
 Station agents, clerks, porters, etc 
 
 Conductors, baggagemen and brakemen 
 
 Compensation for personal injuries 
 
 Loss or damage to freight ' 
 
 Cattle killed 
 
 Cost of ferries and ferry-boats 
 
 Cost of foreign agencies ," ' ' " "i 
 
 Small stores, including lights, lamps and signals 
 
 All other charges 
 
 Total 
 
 Blanks are left for any other items of expenditure not included above. 
 No. 14.— Summary of Operating Expenses. 
 
 A. Maintenance of line, buildings, etc. . . . 
 15 Cost of working ami repairs to engines . 
 q[ do do cars... 
 D. do general operating expenses 
 
 $ cts. 
 
 Total cost of o|ierating railway . 
 
 ' The above statement to include the full cost of operating the railway, 
 and the total to correspond with the published return of the Company. 
 
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Dominion and Provincial Railway Act.s. cxlv 
 
 No. i6.— Names and Residences ok DiRtcrous and 
 Officers OF THE Company. 
 
 Names of Directors. 
 
 Residence. 
 
 Presiilent | 
 
 Secretary and Treasurer. .. 
 
 General Manager ' 
 
 Kni^ineer 
 
 Suiierintendcnl -.. 
 
 The following is U>e official name and address of the Com- 
 pany :— 
 
 SCHEDUl.E TWO. 
 
 Railway of Canada. 
 
 Return of Traffic for the week ending 
 
 and the corresponding week, i8 
 
 Date. 
 
 Passengers. 
 
 Freight and Live Stock. 
 
 Mails 
 
 and 
 
 Sundries. 
 
 Total. 
 
 Miles 
 Open. 
 
 
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 Increase. 
 Decrease. 
 
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 Aggregate Traffic from. 
 
 Date. 
 
 i8 
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 Passengers. 
 
 Freight and Live 
 Stock. 
 
 Mails and 
 Sundries. 
 
 Total . 
 
 Miles 
 Open. 
 
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 AMENDMENTS TO QUEBEC STATUTES. 
 
 DEBTS OF SUBSIDIZED RAILWAYS, (i) 
 
 Cap. XXXVI. 
 
 An Act to amend the l.iw respecting railways, with reference to 
 the payment of certain debts incurred in their construction 
 and to the sale of such railways in certain cases. 
 
 [Asscfi/a/ to 27/// February, 1893.] 
 
 HER MAJESTY, by and with the advice and consent of the 
 Legislature of Quebec, enacts as follows : 
 
 1, The following subsection is added afier subsection 19 ot 
 section twelfth of chapter third of title eleventh of the Revised 
 Statutes : 
 
 " i()a. Debts contracted during the comtruction of a raihvay. 
 
 " 5181 <z. Every railway company, receiving subsidies from 
 the Government of this Province, every contractor or sub-con- 
 tractor, whether he be a chief contractor or sub-contractor of 
 such railway, who employs foremen, workmen or laborers, by the 
 job or for a specified time to fulfil the contract, must keep a list 
 showing the names and wnges or jjrice allowed for the work of 
 such foremen, workmen and laborers ; and every payment to 
 them made must be attested by the signature or the mark of the 
 foreman, workman or laborer, ittTixed before a witness, who signs 
 the same. 
 
 "SlSl/'. It shall be lawful for aiiy foreman, workman or 
 laborer, or any person who has supplied to such company, con- 
 
 (i) " By a recent judgment of Pagnuelo, J., of the Superior Court of Que- 
 bec, a sequestrator was appointed for the 13a ie des Chaleurs Ry. Co. under 
 this act. Leave has been granted to appeal '■ .."n this decision. There may 
 be doubts as to the powers of the Quebec Legislature to enact the 2nd section 
 of this Act ; at least as regards railways under the jurisdiction of the Dominion 
 Parliament. 
 
 I 
 
Amendments to Quebec Statutes. 
 
 CKlvii 
 
 
 tractor or sub-contractor, or to any person for them, labor or 
 materials employed or to be employed in the construction of 
 such railway, or who has given or sold one or more rights of way, 
 to file in the office of the Commissioner of Public Works a claim 
 under oath, made in the form indicated in schedule B. 
 
 " From the moment such claim is fyled, the Commissioner of 
 Public Works may, in his discretion, retain, out of the subsidy 
 granted by the Legislature to the company, an amount sufficient 
 to cover the claim until satisfied, unless the company or persons 
 entitled to such subsidies consent to the payment of the claim by 
 the said Commissioner out of the amount of such subsidies. 
 
 " When the claim is contested, the said Commissioner keeps an 
 amount sufficient to pay the contested claim or claims until the 
 matter is finally settled by the courts or settled by private agree- 
 ment. 
 
 " 51816-. Several unpaid foremen, workmen, laborers, sup- 
 pliers of materials, or persons who have sold one or more rights 
 of way, may join in the same claim. 
 
 " 5181</- The assignment of the subsidies made by the corn- 
 pan J or the assignment by a contractor or sub-contractor of the 
 prices of work, in no wise affects the right conferred upon the 
 persons mentioned in article SiSi*^ to be paid out of the sub- 
 sidies." 
 
 '> The Act 54 Victoria, chapter 37, is repealed, and the fol- 
 lowing articles arc added after article 5183 of the Revised Sta- 
 tutes : 
 
 "518:?<r. When a railway company, subsidized by th- Pro- 
 vince has become insolvent, and has not complied with the re- 
 quirements of its charter, as regards the commencement or com- 
 pletion of its works within the time specified, or does not con- 
 tinue and has become incapable of continuing the undertaking 
 or working of the road for more than thirty days, it shall be law- 
 ful for the Lieutenant-Governor in Council at any time, on the 
 report of the railway committee of the Executive Council,to au- 
 thorize the Commissioner of Public Works to cause the property 
 of the company, including the interests it may have in the said 
 road, to be sequestrated and sold. 
 
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 cxlviii 
 
 The Raiiavay I,aw of Canada. 
 
 " 5183/'. The sccjuestrator is appointed by the Superior 
 Court or by one of the judges of that court in and for the dis- 
 trict in wliich the company's head office in tliis Province is sit- 
 uated, upon a petition in the name of the Commissioner of Pub- 
 lie Works, not less than thirty days after the service of a copy 
 thereof at the head office of the company, together with a notice 
 staling the time and place at which it will be presented, and after 
 the publication of a notice to that effect in ihe Quebec Official 
 Gazette during such thirty days. 
 
 " Tlie court or judge sluill hear the shareholders and creditors 
 on the appointment of the sequestrator, but shall not be obliged 
 to follow their advice. 
 
 " 6183<:. Such sequestrator has the same rights and is subject 
 to the same obligations as a sequestrator in ordina y matters, 
 and is subject to the summary jurisdiction of the court or judge. 
 
 " He may, at any time, be rei)laced, on the application of the 
 creditors or of the Commissioner of Public Works, by following 
 the same formalities as for his appointment. 
 
 " He takes possession of the road and of all the rolling stock ; 
 executes and continues the work of the road, at the expense and 
 in the name of the company ; executes, in the same manner, the 
 contracts and acquittances, receipts and other documents, and, 
 generally, performs all acts necessary for the construction, main- 
 tenance, administration and working of the railway until the 
 company in default, or another company, lawfully substituted in 
 the rights of the former, resumes and continues l/omi fide the ful- 
 filment of its obligations. 
 
 " He may, with the permission of the court or judge, take out 
 and defend any suits on behalf of the company. 
 
 " 5183'/. If the company in default or any other company 
 does not resume the construction, maintenance, administration 
 and working of the road for the purpose ol bona fide continuing 
 the same, and if the sequestrator has not the means at his dis- 
 posal for continuing them, on petition of the Commissioner of 
 Public Works, thirty days' notice whereof shall be served upon 
 the company by leaving a copy at its head office, with the indi- 
 cation of the time and place at which it will be presented, the 
 
Amkndmknts to Quebec Statutes. 
 
 cxlix 
 
 court or judge may order the sheriff of the district to seize and 
 sell the road, immoveables used for the road and tlie rolhng 
 stock ; 
 
 " 2. The sheriff executes this order, by following the same rules 
 as in the case of a writ de terris, and makes a return thereof to 
 the Superior Court ; 
 
 « 3 All subsequent proceedings, including the distribution of 
 moneys, are had before the Superior Court, and are the same 
 and have the same effect as those relating to compulsory sale of 
 immoveables. 
 
 " SISS*-. All proceedings instituted under the authority of 
 this subsection are summary, and the parlies have precedence for 
 hearing over all other proceedings or cases." 
 
 3. This Act shall come into force on the day of its sanction. 
 {For form see next page. ) 
 
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 'I'hk Railway Law ok Canada. 
 
 Signature 
 
 ot witness 
 
 to payment. 
 
 
 Receipt of 
 
 foreman, 
 
 workman or 
 
 labortT. 
 
 
 Total 
 
 amount 
 
 due. 
 
 
 
 Price 
 of job. 
 
 
 
 Nature 
 of job. 
 
 
 Salary 
 per day. 
 
 
 
 k. 
 
 i 
 
 Names of the foremen, 
 
 workmen and 
 
 laborers. 
 
 i 
 
 ■''^- 
 
Amkndments to Quebec Statutes. 
 
 cli 
 
 SCHKDULEB. 
 
 rLAlMOF FOREMAN, WORKMAN. LAUORER, OR PERSON ^l.O HAS 
 Su RIGHTS OK WAY OR SUPPLIED MATERIALS (<» the caU' may 
 ^°) K.LED IN TI.K OFFICE OF TUE COMMISS.ONKR OK PUBLIC 
 WORKS. 
 
 To the Honorable tlic CMmmissioner of Public Works, 
 
 ^"in presence of the undersigned witness 1.0'^;^^).^?';;;'^'//^ 
 
 "'' °T„"'°, ,V,7. 11 i a M «) which »um tl,o L>id A. li. (m«u 
 refuses or neglects to pay me {or us). 
 
 Made at 
 
 (Signed), 
 
 , this 
 
 day of > 1 8 
 
 (Signed) E. F. 
 {Signature of workman or workmen.) 
 
 G. H., 
 
 Witness. 
 
 SEIZURE OF RAILWAYS. 
 
 57 Vic. (QUK.) Cap. XLVIII. 
 
 AN ACT TO amend THE CODE OF CIVIL PROCEDURE. 
 
 [Assented to ?>th January, 1894.J 
 HER MAJESTY, by and witl> advice and consent of the 
 Legislature of Quebec, enacts as follows : 
 
 1 Article 638 of the Code of Civil Procedure is amended by 
 adding the following clause to paragraph 3 thereof : 
 
 T^ the property seized consists of a line of ratlway and its 
 accessories, and such line has .., been cadastred in accordance 
 w'rarticl 5668 of the Revised Statutes, it is not necessary to 
 rnfete the numbers of the immoveables traversed by such rail- 
 way and it is sufficient if the name of the line and its erminal 
 points be mentioned, so that its identity may be estabhshed. 
 
 '.\\y 
 
clii 
 
 The Railway Law of Canada. 
 
 2. Article 650 of the said Code is amended by adding thereto 
 the following clause : 
 
 " However, when the seizure of a line of railway traversing 
 several parishes or counties is concerned, such notice '•hall be 
 given by the secretary-treasurer of each municipality." 
 
 3. Article 671 of the said Code, as it is contained in article 
 5937 of the Revised Statutes, is amended by adding thereto the 
 following clause : 
 
 " Whenever the sale of a line of railway is concerned, such 
 sale must be made at the office of the sheriff entrusted with the 
 writ of execution.'' 
 
 4. Article 689 of the said Code is amended by adding the 
 following clause after paragraph 3 thereof : 
 
 " In case the immoveable property seized and sold is a line of 
 railway which is not cadastred, and the accessories thereof, it is 
 sufficient to mention in the description the name of such line 
 and its terminal points, so that its identity may be established." 
 
 5. This act shall come into force thirty days after its sanc- 
 tion. 
 
CRIMINAL LAW AFFECTING RAILWAYS. 
 
 Canada Criminal Code 1892. 
 See. 531. Criiniaal Breaches of Contract. 
 
 Every one is guilty of an indictable offence, and liable on 
 indltment or on summary conviction before two jusUces ot t h e 
 net to a penalty not exceeding one hundred dollars, o, o 
 Tee months' imprisonment, with or or without hard labor, who 
 
 ,, Wilfully breads any^o^ract made ^^^^^^^ 
 
 others wil be to endanger human life, or to cause ser.ous bod.ly 
 taZ', or to expose valuable property, whether real or personal, 
 tD destruction or serious injury ; or 
 
 ""r'TB^inc^'und^r'any'contract made by him with a ra.lway 
 
 r nL^arried wilful y breaks such contract, knowu^g or 
 
 re,ght -;^J^ ;'f ;;^^^ ^,1^ ,,e probable consequences of h.s so 
 
 ^''^'r-ac^. or il combination with others, will be to 
 
 :;:f or re:e;u;:e running of any locomotive engine, or tender, 
 
 or :reight or passenger train or car, on the ra.hvay ; 
 
 , Every railway company which, being bound, agreeing or 
 
 exceeding one hundred dollars ; 
 
 (:: 
 
cliv 
 
 The Railway Law ok Canada. 
 
 SI 
 
 11 
 
 I '1 
 
 . 1-1 
 
 M 
 
 4. It is not material whether any offence defined in this section 
 is committed from malice conceived against the person, corpora- 
 tion, authority or company with which the contract is made or 
 otherwise. 
 
 8cc. 522. Posting^ up the Provinions of Law respecting 
 Criiniual Breaches of Contract. 
 
 Every such company shall cause to be posted up at 
 
 the railway stations belonging to such company, a printed copy 
 of this and the preceding section in some conspicuous place, 
 where the same may be conveniently read by the public ; and as 
 often as such copy becomes defaced, obliterated or destroyed, 
 shall cause it to be renewed with all reasonable despatch ; 
 
 2. Every such company which maices default on complying 
 
 with such duty is liable to a penalty not exceeding twenty 
 dollars for every day during which such default continues ; 
 
 3. Every person unlawfully injuring, defacing or covering up 
 any such copy so posted up is liable, on summary conviction, to 
 a penalty not exceeding ten dollars. 
 
 Seo. 250. Intentionally Endangering the Safety of 
 Persons on Railways. 
 
 Everyone is guilty of an indictable offence, and liable to impri- 
 sonment for life who unlawfully — 
 
 ((?) With intent to injure or to endanger the safety of any 
 person travelling or being upon any railway : 
 
 (i) Puts or throws upon or across such railway any wood, 
 stone, or other matter or thing ; 
 
 (ii) Takes up, removes or displaces any rail, railway switch, 
 sleeper or other matter or thing, belonging \o such railway, or 
 injures or destroys any track, bridge or fence of such railway, or 
 any portion thereof; 
 
 (iii) Turns, moves or diverts any point or other machinery 
 belonging to such railway ; 
 
 (iv) Makes or shows, hides or removes any signal or light upon 
 or near to such railway ; 
 
 
 w 
 
Criminal Law affecting Railways. 
 
 civ 
 
 : 
 
 (V) noes or causes to be done any other matter or thing with 
 
 such intent; or 
 
 »^ f^U or strike at, auainst, into or upon 
 t/,^ Throws, or causes to tall, or sirih.e cii, ^3 , 
 
 me mioned engine, tender, carriage or truck furtn. ,.a, t. 
 Sec. 489. Mischief ou Kailways. 
 
 Fvervone is guilty of an indictable offence, and liable to five 
 yel;:- imprison'n.enl who, in manner hkely to cause danger to 
 valuable property, wMout mdangcring Ufe or person . 
 
 ln\ Places any obstruction upon any railway, or takes up, 
 reiteslZracIs. breaks or injnres any rail, sleeper or other 
 matter or thing belonging to any railway ; or 
 
 (/.^ Shoots or throws anything at an engine or other railway 
 vehicle ; or 
 
 (,) Interferes without authority with the points, signals or 
 other appliances upon any railway ; or 
 
 (rf) Makes any false signal on or near any railway ; or 
 (,) Wilfully omits to do any act which it is his duty to do ; or 
 (f) Does any other unlawful act ; 
 
 ,. Everyone who does any of the acts above --^^^"^ 
 iZtto cause such danger, is liable to imprisonment for life. 
 
 sec. 490. 01>str«cting the Construction or Use of any 
 
 Kailway. 
 
 Everyone is ^^^ :ix^:^.::mo:^t:^x:^ 
 
 ;r=;ora:;r.::; ::.hi;:;er.ainL. there.oor co„. 
 nected therewith. 
 
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 clvi 
 
 TiiK Railway Law ok Canada. 
 
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 11 
 
 
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 '■I 
 
 
 Sec. 491. Injuries to Packages in Custody of Railways. 
 
 Everyone is guilty of an offence, and liable, on summary con- 
 viction, to a penalty not exceeding twenty dollars over and 
 above the value of the goods or liquors so destroyed or damaged, 
 or to one month's imprisonment, with or without hard labor, 
 or to both, who :— 
 
 (a) Wilfully destroys or damages anything containing any 
 goods or licjuors in or about any railway station or building, or 
 any vehicle of any kind on any railway, or in any warehouse, ship 
 or vessel, with intent to steal, or otherwise unlawfully to obiain or 
 to injure the contents, or any pait thereof; or 
 
 (d) Unlawfully drinks or wilfully spills or allows to run to waste 
 any such liquors, or any part thereof. 
 
 Sec. 421. Pn!:isliinent »»f Forgery. 
 
 Everyone who commits forgery of the documents hereinafter 
 mentioned is guilty of an indictable offence, and liable to the 
 following punishment : 
 
 (c) 7o sa't'ujttr/s' itnprisonment^ — if the document forged juir- 
 ports to be, or was intended by the offender to be understood to 
 be, or to be used as — 
 
 (w) Any ticket or order for a free or paid passage on any 
 carriage, tramway or railway, or on any steam or other vessel. 
 
 Sec. 362. Obtaining Passage by Fal.se Tickets. 
 
 Everyone is guilty cf an indictable offence, and liable to six 
 months' imprisonment, who, by means of any false ticket or order, 
 or of any other ticket or order, fraudulently and unlawfully 
 obtains or attem[)ts to obtain any passage on any carriage, tram- 
 way or railway, or in any steam or other vessel. 
 
 Sec. 351. Stealing on Railways. 
 
 Everyone is guilty of an indictable offence, and liable to fourieen 
 years' imprisonment, who steals anything in or from any railway 
 station or building, or from any engine, tender, or vehic'e of 
 any kind on any railway. 
 
Criminal Law affecting Railways. 
 
 clvii 
 
 
 
 Sec. 330. Stealiug Railway or Steamboat Tickets. 
 
 Everyone is guilty of an indictable offence, and liable to two 
 years' imprisonment, who steals any tramway, railway or steam- 
 boat ticket or any order or receii.t for a passage on any railway 
 or in any steamboat or other vessel. 
 
 Sec. 514. Treatiueiit of Cattle while in Transit by 
 Kail or Water. 
 
 No railway company within Canada, whose railway forms any 
 part of a line of road over which cattle are conveyed from one 
 province to another province, or from the United States to or 
 through any province, or from any part of a province to another 
 part of the same, and no owner or master of any vessel carrying 
 or transporting cattle from one province to another Fovince, or 
 within any province, or from the United States through or to any 
 province, shall confine the same in any car or vessel of any des- 
 cription, for a longer period than twen.y-e.ght hours, ..thou 
 unlading the same for rest, water and feeding, for a period of at 
 east five consecutive hours, unless prevented from so unlading 
 and furnishing water and food, by storm or other unavoidable 
 cause, or by necessary delay or detention in the crossing of 
 
 trains ; . • j • 
 
 2 In reckoning the period of confinement, the time during 
 which the cattle have been confined without such rest, and with- 
 out the furnishing of food and water, on any connecting railway 
 or vessel from which they are received, whether in the United 
 States or Canada, shall be included ; , , , „ 
 
 , The foregoing provisions as to cattle being unladen sha I 
 no apply when cattle are carried in any car or vessel in which 
 they have proper space and opportunity for rest, and proper 
 
 food and water ; , . j 
 
 4 Cattle so unloaded shall be properly fed and watered 
 duHn- such rest by the owner or person havmg the custody 
 fhe of, in case o'f his defaultin so doing, by the railway corn- 
 pa y or owner or master of the vessel transporting the same at 
 «^ expense of the owner or person in custody thereof. And 
 sth company, owner or master shall in such case have a lien 
 upo' such cattle, for food, care and custody furnished, and 
 shall not be liable for any detention of such cattle ; 
 
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 clviii 
 
 The Railway Law ok Canada. 
 
 5. When catlle are unladen from cars for tlie purpose of 
 receiving food, water and rest, the railway company, then having 
 charge of the cars in which they have been transported, shall, 
 except during a period of frost, clear the floors of such cars, and 
 litter the same properly with clean sawdust or sand, before 
 reloading them with live stock ; 
 
 6. Every railway company, or owner, or master of a vessel, 
 having catlle in transit, or the owner or person having the custody 
 of such cattle, as aforesaid, who knowingly and wilfully fails to 
 comply with the foregoing provisions of this section, is liable for 
 every such failure on summary conviction to a penalty not 
 exceeding one hundred dollars. 
 
 11! 
 
 II I' 
 '1 
 
 '"i 
 
 i ■! 
 
 Sec. 515, 
 
 Any peace officer or constable may, at all times, enter any 
 premises where he has reasonable ground for suppor.ing that any 
 car, truck or vehicle, in respect whereof any company or person 
 has failed to comply with the provisions of the next preceding 
 section, is to be found, or enter on board any vessel in respect 
 whereof he has reasonable ground for supposing that any com- 
 pany or person has, on any occasion, so failed ; 
 
 2. Everyone who refuses permission to such peace officer or 
 constable is guilty of an offence, and liable, on summary convic- 
 tion, to a penalty not exceeding twenty dollars, and not less than 
 five dollars, and costs, and in defiuilt of payment, to thirty days' 
 imprisonment. 
 
AN ACT RESPECTINa THE SALE OF RAILWAY 
 PASSENGER TICKETS. 
 
 Revised Statutes ok Canada, Chapter ho. 
 
 HER MAJESTY, by and with the advice and consent of the 
 Senate and House of Commons of Canada, enacts as Allows :- 
 1 Any railway company subject to the jurisdiction of the 1 ar- 
 liament ofCanada, or to which " The Railivay Act ' apphes, and 
 the Minister of Raihvays and Canals, as respects any railway 
 under the control of the Government of Canada, may appoint, in 
 any city, town or village in Canada, such person or persons as it 
 or he chooses, as agents for the sale of passenger tickets to pas- 
 sengers or persons who desire to travel by the railway of the 
 company employing such agent, or by any Government railway, 
 as the case may be. 
 
 '> The Minister of Railways and Canals, or company employ- 
 m^iny such agent, shall give him a certificate of his appoint- 
 ment, Ihich shall be under the hand of the Minister of Ra.lwa>s 
 .nd Canals, or the corporate seal of tlie company appointing him ; 
 '.nd such a^ent shall keep the same framed or exhibited m some 
 conspicuous pait of his office or place of business, where u can 
 be seen and read by those resorting to the ofhce. 
 
 3 Every agent of a foreign railway company doing business 
 in Canada shall, before issuing tickets over any Government rail- 
 way line, or other Canadim railway line, be duly authorized for 
 such purpose by the Minister of Railways and Canais, or by the 
 corniiny' as the case may be, over whose line hedesues to issue 
 tick ts in the same manner as is hereinbefore provided m respect 
 of other agents, and shall have and exhibit, in like manner, a cer- 
 tificate from the foreign company he represents. 
 
 4 Every ticket sold by any agent shall have the nan^e of such 
 .eeiit and the date of the sale written or stamped plainly upon it, 
 and every person who fraudulently alters, changes or imitates 
 such signature or date is guilty of an offence against this Act. 
 
•ii 
 
 tl! 
 
 I' I 
 
 I' 
 
 tm 
 
 :( "\ 
 
 clx Till Railway Law ov Canada. 
 
 5. Nutliing in tliis Act shall prevent the duly authorized agent 
 otany company from procuring from the duly authorized agent 
 of any other company, a ticket for a passenger to whom he has 
 sold a ticket to travel over the line or any part thereof for which 
 he is the authorized agent, so as to enable such passenger to tra- 
 vel to the point or junction from which he has previously secured 
 his ticket. 
 
 G. Nothing in this Act contained respecting the appointment 
 of agents for the sale of tickets shall prevent the station agents of 
 the Minister of Railways and Canals or compiny, at their sta- 
 tions, and in their ticket oftices at such stations, from selling 
 tickets to ])assengers about to enter upon and travel by railway 
 from the said stations. 
 
 7. No person, except those authorized as above mentioned, 
 shall sell or offer for sale any railway passenger ticket, or pass, 
 ticket, certificate or other instrument, enabling any person or pur- 
 porting to entitle any ])erson to travel on any one railway, or 
 u.ore than one railway, or on any part of one railway, or parts of 
 several railways to which this Act applies. 
 
 8. Every person guilty of an offence against this Act shall, 
 upon summary conviction thereof, before any justice of the peace, 
 be liable to a penalty not exceeding fifty dollars, and not less than 
 twenty dollars and costs, or to imprisonment for a term not ex- 
 ceeding ninety days, and not less than ten days, or to both pen- 
 alty and imprisonment, in the discretion of the justice. 
 
 9. The Minister of Railways and Canals, with respect to any 
 Government railway and every railway company subject to the 
 jurisdiction of the Parliament of Canada, or to which" The Rail- 
 way Aii" applies, as the case may be, shall repay to every holder 
 of a ticket over any Government railway line or other Canadian 
 railway line, as the case may be, the cost of his ticket, if unused 
 in whole or in part, less the ordinary and regular fare for the dis- 
 tance for which such ticket has been used ; 
 
 2. Such repayment shall be made at any station or office of 
 the railway or company between and including the points cover- 
 ed by the ticket ; 
 
 3. The claim for such redemption shall b^ made within thirty 
 
Act Respecting the Sale ov Tickets. 
 
 clxi 
 
 
 days from llie cxpiralion of the lime for wliicli tlie ticket wa? 
 issued, in accordant: with l!ie conditions tliereon ; 
 
 4. The sale by any person of the unused portion of any ticlcet 
 otherwise than by the presentation of the same for redemption, as 
 provided for in this section, is an offence against this Act, and 
 shall be punishable as herein provided. 
 
 10. Every passenger who presents a single journey ticket 
 upon a train within the time for wliicli the conditions printed 
 upon such ticket and the date sliows such ticket to be good for 
 use, may apply to the conductor of such train to huve the priv- 
 ilege of stopping over granted, and the time for which the ticket 
 is valid extended, which shall be conceded on tickets purcliased 
 at railway ticket offices in Canada, from one place iu Canada to 
 another, or from a place in Canada to a place in the United 
 States ; but no such passenger shall be entitled to have such tuaie 
 extended for more than two days for every fifty miles of distance 
 to be travelled in Canada. 
 
 11. Every complaint respecting aa offence against this Act 
 shall be prosecuted under the provisions of the " .Icf respecting 
 summary procee(iiih;s before Justices of the Peace." 
 
 12. The examination or deposition of any complainant or wit- 
 ness, taken or heard under oath in the presence of the person 
 accused, on the hearing of any complaint for any offence agamst 
 this Act', may, if the person charged, or liis counsel or agent, has 
 had tlie opportunity of cross-examining such complainant or wit- 
 ness, whether he has done so or not, be used in evidence on the 
 hearing of any appeal from any decision of the justice of the jieace 
 before whom the trial was had, if the person whose examination 
 or deposition is so used is out of the jurisdiction of the court to 
 which the appeal is made, and if the said examination or deposi- 
 tion has been reduced to writing and has been signed by the per- 
 son whose examination or deposition it purports to be ; 
 
 2 The said examination or deposition may be read and taken 
 as evidence on the hearing of such appeal, upon the production 
 of the certificate of the justice of tlie peace before whom tiie trial 
 was had under his hand, setting fortli that the said examination 
 or deposition which is offered in evidence was taken before him 
 on the hearing of the complaint which forms the subject matter 
 of the said appeal. i- 
 
Vi * 
 
 f 
 
 i 
 
 I' 
 
 H 
 
 111 
 
 1 ji 
 
 FORMS OF PROCEEDINGS IN EXPROPRIATION. 
 
 ARBITRATION NOTICK, SURVKYORS' CKRTIFICATP: 
 AND NOTICE OK APPLICATION TO COUNTY 
 
 lUDGK. 
 
 /» Re : 
 
 Province of 
 Municipality of liie 
 To 
 of the 
 
 Railway Co.mi'anv. 
 
 County of 
 
 of 
 
 owner of the property 
 hereinafter described. 
 
 You are hereby notified, under the provisions of " The Kitil- 
 ii.iay Act" and amendments : 
 
 1. That the Railway Company 
 requires for the purposes of its Railway certain lands in 
 tlie of belonging to 
 you, shown on the map or plan deposited in the office of the 
 Clerk of the Peace for the said County, under the location 
 No. and particularly described as follows : 
 
 All that portion of lot number in 
 
 of the said of containing by admeasurement 
 
 acres and of an acre. 
 
 2. The said Company is ready and willing and hereby offers 
 to pay to you llie sum of as 
 compensation for such lands and all damages in respect of the 
 taking thereof, for the jiurposes of the Company, and in the 
 exercise of the powers conferred upon it by its charter and the 
 said Act and amendments. 
 
 3. Tiie Company appoints of 
 
 its arbitrator, if its said offer is not 
 accepted by you. 
 
 4. Application will be forthwith made in accordance with the 
 notice endorsed hereon. 
 
 Dated at day of 18 
 
 i 
 
 Solicitors for 
 
 Railway Company. 
 
 ^-^^, 
 
Forms of Puockedincs in Kxproi-riation. clxiii 
 
 { 
 
 CertiWcate of Provincial Laiul Surveyor. 
 
 T of ill ll>'-" 
 
 County of ^ swoin Provincial Land 
 
 Surveyor of the Province of , disinterested in tiiis 
 
 matter, do hereby certify as follows : 
 
 1. That the ai)Ove described parcel of land .dujwn on the Nlap 
 or Plan of tiie said Railway is required for said Railw.iy. 
 
 2. That I know the said parcel of land and the amount of dam- 
 age likely to arise from the same being taken for the line and 
 purposes of the said Railway, as aforesaid. 
 
 3. That the sum offered in and by said notice is, in my opin- 
 ion, a fair compensation for the said land and for the damages as 
 aforesaid. 
 
 As witness my hand the day of 18 
 
 l'ro%''uiclal Land Surveyor. 
 
 (endorsation.) 
 
 Notice of Application Referred to in the t^ourth 
 Paragraph, 
 
 You are also required to take notice that because the said 
 ^l^g Railway Company requires the 
 
 immediate possession of the land within referred to, which is 
 necessary to carry on part of the said Railway, with which the 
 said Company is ready forlinvith to proceed, ai)plication will be 
 made to the Judge ot the County Court, of the within-named 
 County, at the Court House of the said County, on the 
 
 jav of at the hour of o'clock 
 
 J,, jl^e ' noon, for his warrant to the Sheriff of the said 
 
 County to put the said Company in possession of the said lands, 
 under the provisions of The Railway Act, which will issue, unless 
 you, on that occasion, or in the meanwhile, show good cause to 
 the contrary. 
 
 Solicitors for Raihvay Company, 
 
I ! 
 
 II ?i 
 
 
 1 
 
 
 i 
 
 
 
 ■ 
 
 1 
 
 1 
 
 t 
 
 ! 
 
 I 
 t 
 1 
 
 I 'I 
 
 '' ''. 
 
 clxiv 
 
 County (if 
 
 'I"iii: Railway Law ok Canada. 
 
 A III (lav it. 
 
 ^ In the matter of the 
 
 wit ; ^ Railway Company and 
 
 and 
 
 Townsliip of 
 1 
 
 to 
 
 of tlic Township of 
 part of 
 in the 
 
 Lot nimibcr 
 Concession of the 
 
 of 
 
 of tlic 
 in ilie County of 
 make oath and say as follows : 
 
 1. 'i'hat 1 am of the 
 
 Railway Company, and am acipiaintcd with the state and posi- 
 tion of the Company's work, and what is required in resjject of 
 the same. 
 
 2. That the Company require immediate possession of the 
 lands above mentioned, and which arc shown on the maps and 
 plans and book of reference, duly fded with the Clerk of the 
 Peace for the said County j and that such possession ic necessary 
 to carry on a part of the said i ailway wi'') wl- h the ^^nmpany 
 are ready to forthwith ])roceed. 
 
 3. That a notice of arbitration ai surveyor's cc icate 
 under the provisions of the Railway . have bi en duly served 
 on the said 
 
 and the amount mentioned in the said notice and certificate was 
 tendered to the said 
 
 but he refused to accept the same, and stated that he would 
 resist the said Company taking possession of the said lands. 
 
 4. That the said Company are ready to give security to the 
 satisfaction of the Judge of tiie County Court, in accordance 
 with the i)rovisions of the Railway Act. 
 
 Sworn before me at the 
 in the County of 
 
 day of A.D. iS 
 
 1 
 
 f 
 
 \- 
 
 J 
 
 A Cominhsioncr 0/ t/ic Court of B.R., etc. 
 
of 
 
 I 
 
 <K 
 
 Forms ok I'koceboincs iv Exi'k )I'kiatio\. chv 
 Notice to DoMlst. 
 
 In ilic muUcr ofthc Railway Company 
 
 and 
 
 You arc hereby notified that tlie 
 Railway Company desist from the notice of arbitration iiercin 
 given on the day of 
 
 herein, and that new rotice of arbitration is served lierewith. 
 
 To 
 
 Solicitors /or the 
 
 his Attorney. 
 
 Railway Company. 
 
 Warrant from Jiid^u ot tho County Court. 
 
 County 
 
 to Wll 
 
 ^ In the matter of tin: 
 I 
 Railway Company 
 
 I 
 J of 
 
 in the Township 
 
 of 
 
 in the 
 I, 
 
 and part of JjOt number 
 
 Concession of the Township of 
 of the 
 Esq., Judge of the County Court of the County of 
 
 to of the 
 
 of the said County, send Grketixo : 
 
 By virtue of the special .Acts incorporating said Company, 
 and of tiie authority in me vested by the Railway Act, and being 
 satisfied by affidavit in that behalf that the immediate pos^icssion 
 of the lands mentioned in the notice, served on the said 
 
 on the day of A.D. i8 , 
 
 and hereinafter specified, is necessary in order to carry on some 
 part of the Railway of the Railway 
 
 Comi)any, with which the said Company are ready forthwith to 
 proceed, and the said Company having given security to my 
 satisfaction, by the deposit in the Bank of 
 
 a sum double the amount mentioned in the said notice, I com- 
 mand you that without delay you do put the 
 Railway Company, their agent and servants, in possession of 
 that part of hot in the Concession of the 
 
r 
 
 clxvi 
 
 The Railway Law of Canada. 
 
 
 II ! 
 
 Township of in tlie County of 
 
 shown on the map or plan of said Railway and required by the 
 
 said Company for the purposes of their Railway, and put down 
 
 all resistance or opposition ^thereto, taking with you sufficient 
 
 assistance for such parjjose. 
 
 Dated the day of A.D. i8 
 
 Given under my hand and seal 
 
 Judge of the County Court of the County of 
 
 Notice of Application to Jiid^jre. 
 
 For appointment of Third Arbitrator. 
 
 County of \ In the matter of the 
 
 I 
 
 to wit : }■ Railway Company and 
 
 J J'roprietor. 
 
 Whereas and Arbitrators, 
 
 respectively appointed by the parties hereto, are unable to agree 
 upon a third Arbitrator to act with them in this matter. 
 
 You are hereby requested to take n( nice that application will 
 be made to His Honor, the Judpc of the County Court of the 
 County of at his Chambers in the Court House, 
 
 in the in the said County, at 
 
 noon, on , the day of ^ 
 
 A.D. iS , to nominate and appoint such third Arbitrator in 
 accordance witii the Railway Act. 
 
 Dated this day of A.D. iS 
 
 To \ 
 
 and r Solicitors Jor Railway Company. 
 
 Attorney. ) 
 
 Appointineiit of Third Arbitrator. 
 
 County of 
 
 to wit 
 
 { In the maUer of the 
 ') Railway Company and 
 
 Lot number 
 
 in the County of 
 The Arbitrators herein duly appointed by the 
 Railway Company and 
 
 and part of 
 
 in the Township of 
 
Forms ok Proceedings in Expropriation. clxvu 
 
 above named, being unable to agree upon a third Arbitrator, 
 and due notice having been given under the provisions of the 
 Railway Act, and on the application of the Company, I 
 
 Judge of Mie County Court of the County of 
 by virtue of the authority in me vested by the provisions 
 of the Railway Act, do hereby appoint of 
 
 to be the third Arbitrator herein. 
 
 Award. 
 
 The 
 
 Railway Company. 
 Know all men by these presents, that , and 
 
 and , of , being Hie Arbitrators 
 
 appointed'pursuant to the provisions of the Railway Act, having 
 duly taken upon ourselves the duties of our said office, and hav- 
 ing proceeded conformably to said Act, lo ascertain the com- 
 pensation to be paid by said Company for the following parcel 
 of land, taken by the said Company for the purpose of its Rail- 
 way, that is to say- 
 do hereby order, award and adjudge that the sum of 
 dollars shall be paid by this Company, as and for and in full of 
 such compensation for the said land and all damages in respect 
 
 thereof. 
 
 As wimess our hands and Seals this clay 
 
 of A.D. 1 8 
 
 Signed, sealed and delivered, | 
 
 in presence of i 
 
 Agreement for Uiglit of Way, &c. 
 
 This agreement, made this day of 
 
 in the year one thousand eight hundred 
 
 and ^el^^e^" . , 
 
 of the «f "^''^' 
 County of ^"d the 
 Railway Company, as follows : 
 
 I. The said ag^^ees to sell and 
 
 convey to the said Company, by a proper Deed, with Bar of 
 
liil 
 
 clxviii 
 
 The Railway Law ok Canada. 
 
 Dower, and free from incumbrances, so much of Lot number 
 in ihe Concession of 
 
 the Township of in the County of 
 
 as is taken or required by the Company 
 for its line of Railway, and containing acres, 
 
 more or less, for the sum of being the price of tiie 
 
 said land, and all damages in respect thereof. 
 
 2. The Company agrees to prepare, as its own expense, the 
 necessary Deed of said land, and to pay the said sum of 
 
 within days from tliis date. 
 
 3, The Company is at liberty to take possession of said land 
 forthwith, for the purposes aforesaid. 
 
 Witness, 
 
 FORl\iS OF PR0CP:EDINGS in EXPROPRLVnON, 
 
 QUEBEC. 
 
 ^' 
 
 I: 'I 
 
 Arbitrator's Award. 
 
 THE RAILWAY COMPANY, 
 
 and Expropriated Party. 
 
 The day of 
 
 before tlie undersigned Notary, 
 
 appointed for the Province of Quebec, residing and practising 
 in 
 
 Appeared 
 
 1. of Arbitrator, 
 ajjpointed by ' ? Railway Company of 
 the First Part. 
 
 2. of Arbitrator, 
 appointed by of 
 
 Parly Expropriated, of the Second Part. 
 
 3. And of 
 
or, 
 of 
 
 01-, 
 
 Forms oi- Proceedings in Exi'ROI'RIAtion. clxix 
 
 third Arbitrator duly appointed by the said two arbitrators (or 
 
 by the Court). 
 
 Which said Arbitrators and third Arbitrator report and de- 
 clare as follows : — 
 
 That after notice given, according to law, to the said (the 
 Railway Company) and to the said (the party expropiiated),we, 
 the Arbitrators and third Arbitrator, met at 
 
 on the day ^^ '^'^^^ 
 
 being there duly sworn, in presence of the parlies interested, we 
 commenced proceedings by visiting the land expropiiated be- 
 longing to the said and described us follows : 
 (here follows description of land). 
 After having examined the papers of record produced by the 
 said Company and by the said expropriated party, having sworn 
 and examined the witnesses produced by each parly, the i)arlies 
 being represented by iheir respective Counsel, to wit:-thc 
 Railway Company by and the said 
 expropriated party, by ; having 
 obtained all the information necessary and having examined the 
 said expropriated parly, we are agreed (the ^aid 
 
 dissenting) that the said 
 
 expropriated party has a right to the sum of 
 as a fair compensation for the strip of 
 land above described and taken by the said Company for their 
 Railway, this sum including all damages caused by the expro-^ 
 prialion of the said nroperly, and the exercise of the i)0wers of 
 the Railway Company thereon. 
 
 We the said Arbitrators and thiid Arbitrator therefore award 
 
 to the said ll»^ ^'^'J s"'" "f 
 
 which he lias a right to 
 
 recover from the said (the Railway Company). 
 
 The said (dissenting Arbitrator) declares that he does not 
 concur in this award, and that he signs only to place his dissent 
 on record. 
 
 Done and passed at etc. 
 
 i^Signaf tires of the three Arbitrators aiuf iVotary.) 
 
I'i 
 
 
 :,,! 
 
 n: 
 
 clxx 
 
 The Railway Law ok Canada. 
 
 Warrant of Possession. 
 
 rrovince of Quebec : ) SUPERIOR COURT. 
 District of f 
 
 The Honorable 
 
 To flu- Sheriff {or any Bailiff) of the said District of 
 
 Greeting 
 
 AVhereas on the day of 
 
 (The Railway Company) a body politic 
 and corporate, having its principal office in the City and District 
 of presented to me, the undersigned, 
 
 one of the Judges of said Court residing in said District of 
 
 a petition setting forth diat the said Company 
 Mere then engaged in and proceeding with the ccnslruction of 
 a line of Railway, forming a portion of their Railway by law 
 authorized, the said portion extending from, etc., etc. ; and that, 
 as api)eared by the affidavit produced wi;h said jietilion, the 
 immediate pos>ession of that certain piece or parcel of land 
 belonging to of the Parish of in the 
 
 County of aforesaid, was necessary to the said Com- 
 
 pany for the i)urpose of carrying on the construction of the said 
 portion of their said Railway, whicli said ])iece or parcel of land 
 was therein mentioned as con'prising and consisting of a strip of 
 land, etc.. etc., and which said piece or i)arcel of land forms part 
 of a certain immovable property lying and being in the said 
 Parish of and known and distinguished as 
 
 lot number on the Official (or Cadastral) 
 
 Plan and in the Book of Reference for the said Parish, accord- 
 ing to law. 
 
 And whereas in and by said Petition the said Company fur- 
 ther set forth that they had adopted and fulfilled all the jjielimin- 
 ary i)roceedings required by the provisions of the Railway Act, 
 to entitle them to my warrant to put the said Company in 
 immediate possession of the said piece or parcel of land in said 
 petition mentioned, and for which tlie said Company had offered 
 to pay to the said the sum of 
 
 and of which said petition and of the presenting thereof, he, the 
 

 
 Forms ok Procekdinos in Expropriation. 
 
 clxxi 
 
 had due notice, the said Com- 
 pany therein and thereby declaring their wiUingness to give tlie 
 secLty required by law to entitle them to such warrant. ^^^^^ 
 
 And whereas on the day ot 
 
 bearing 0,e»aid,araes .0 said reti.io,,, <» -U, ^.^-a,d Co„, 
 
 ;::;^eror ;,';:::;' p^iuo,,. a„d o,de..ed ... »»i^ co.,.,.. .o 
 
 deposit in the Bank of 
 
 City of the sum of 
 
 to the credit of the said Company and oi saicl 
 
 jointly, and to await the further order herem. ^ 
 
 And whereas said Company has, as appea . ^y^^'^''^ 
 fvled herein, deposited said sum. These are therefore to com. 
 nmndvou that you do put the said 
 
 R ilV io„„.any in i™-Oi- possession of U,eBa,dsnp 
 piece or parcel of land so hereinbefore acscr.bed and .cqnned 
 
 Ae construerion of said Railway, and flra. you do ,n,. dow,, 1 
 resistance and opposition to stich possession, and for so dotn, 
 this shall be your authority. 
 
 Herein fail not. 
 
 Given under my hand and seal of said Court at 
 
 _ ,. . / this day of 
 
 m said district of 
 
 Certificate of Bank Cashier. 
 
 I the undersigned, Cashier of the Bank at 
 
 certify by these presents that the 
 Railway Company has to-day deposited in this Bank the sum of 
 
 , and that this sum is at the 
 
 ioint credit of the said Company and of 
 
 Qf and that said sum will be paid 
 
 ly upon the order of the Superior Court for the district of 
 
 on 
 
 Done and signed in duplicate at 
 this day of 
 
 (Signature of Cashier). 
 

 
 
 1:1 
 I' 
 
 Sl^ECIAL FOkVIS FOK THK PROVINCK OF 
 QUEBEC. 
 
 Province of Quebec 
 District of 
 
 Notice of Expropriation. 
 
 i\0. 
 
 Railwjy Company, and 
 of 
 
 [jropriclor, 
 
 In the matter of 
 
 Tlie 
 to 
 of the 01 proprietor. 
 
 Take notice lliat part of certain lot of land 
 
 and premises in your possession, known and distinguished on 
 tiie Official Plan and Book of Reference of the 
 of in the of 
 
 as lot number described as 
 
 lot No. on the map or plan and book of refer- 
 
 ence of the said railway, required from yot; by the 
 
 Railway Company, for the purposes of their Railway, and 
 will be taker, under the provisions of The Railway Act, viz.: 
 ])art ofs-'d Lot No. described as follows : — 
 
 That the saia Railway Company are ready and 
 
 willing, and hereby offer, to pay the sum of 
 dollars as a compensation for the sjid land and for all damages 
 caused to you by the exercise of their franchises thereon. 
 
 That in the event ofyournot accepting this offer the 
 
 Railway Company hereby nominate and appoint 
 
 to be their Arbitrator for the pur[)ose of ascertain- 
 ing the compensatioa to be paid to you for the said land and 
 damages, in accordance with the Railway .Vet. 
 
 Montreal, i8 
 

 I, 
 
 Forms ok I'rockeuings in Kxi-ropriation. clxxiii 
 
 Sccietary Railway Company. 
 
 of llie 
 yl in ihc 
 
 a sworn Surveyor for the Province of Qiiel)ec, do hereby certify: 
 
 X. Tiiatl am disinterested in the matter within referred to. 
 
 2. That the land lastly within described is required for the 
 Kailway. 
 
 T,. That 1 know the lot of land and premises in question and 
 Ihe'amount of damages likely to arise from the exercise of ilie 
 powers of the said Railway Company thereon. 
 
 4. That the sum offered by the Railway Com- 
 
 pany in the within notice is a fair compensation for the same and 
 for all damages as aforesaid. 
 
 Dated at the day of 18 
 
 Province of Quebec, [ 
 District of j 
 
 In the mailer of The 
 
 Railway Company, and 
 Proprietor, 
 
 make oath and say, that 1 did 
 day of 18 
 
 I, 
 
 of the 
 
 on the 
 
 personally serve , <- , c 
 
 with a duplicate origiiial of the within Notice and of the bur 
 
 veyor's certificate endorsed thereon. 
 
 ) 
 
 Sworn before me at 
 
 U,is day 01 A.D. iS ) 
 
 Petition lor Warrant of Posses.siou. 
 
 SUPERIOR COURT. 
 
 Canada, ") 
 
 Province of Quebec, ^IN THE 
 District oi Montreal. ) 
 
 Railway Company, petitioners to obtain 
 
 The 
 
 possession of property, and propn.ior. 
 
 To any one of the Honorable Judges of th: Supjrior Cour: for 
 Lower Canada, sitting in and for the District of Montreal :~- 
 
clxxiv 
 
 The RAiLWAy Law of Canada, 
 
 i 
 
 i ■■ 
 
 i 
 
 t I' 
 
 •ill 
 
 
 , i' 
 
 Tlic petition of llie Railway Comi)any, a 
 
 body politic and corporate, having its principal office and place 
 of business in the City ot Montreal, 
 respectfully represents : 
 
 That the said the Proprietor 
 
 in possession of lot Number 
 on tlie official plan and in the book of reference 
 for the portion whereof is 
 
 required for the purposes of the said Railway, to wit, the lot 
 known as No. on tiie plan and Book of Reference 
 
 of the said Railway Company hereinafter mentioned. 
 
 Tiiat the map or plan and book of reference for the 
 
 Railway has been duly prepared and exann'ned, and 
 duly certified by the Minister of Public Works, and a duplicate 
 so examined and certified has been deposited in the office of the 
 Department of Railways and Canals, and that since the said 
 de;oosit, to wit, on the day of 
 
 eighteen hundred and eighty- a copy of the said map or 
 
 plan and book of reference, duly certified, relating to the District 
 of Montreal, was deposited in the office of the Clerk of the Peace 
 for the said District ; 
 
 That on the day of eighteen hundred 
 
 and eighty- notice of the deposit of the said map or plan 
 
 and b( ok of reference was given in one newspaper published 
 within the said district, to wii, in the City of i»iontreal ; and 
 that after the expiry of ten days from the said deposit, and from 
 ihc said notice thereof, application was made to the said proprie- 
 tor for a conveyance to the said Petitioners of the land requiiod 
 foi the right of way of the said railway as described upon the 
 said map or plan and book of leference, to wit, as follows: — 
 
 That on the day of the said 
 
 Company caused to be served upon the said proprietor 
 
 a notice containing a description of the said land so to be 
 taken for ihe said Railway, a declaration of their readiness to pay 
 to the said Proprietor the sum of 
 
 dollars, a? compensation for the said land, and for any damage 
 caused to the said Proprietor by the construe, 
 
 tion of the said railway, and the name of the person, to wit, 
 
Forms of Proceedings in Expropriation. clxxv 
 
 
 to be appointed as the arbitrator of the said 
 petitioners if their offer should not be accepted. And such 
 notice was accompanied by llie certificate of a sworn Surveyor 
 of the Province of Quebec, to wit, 
 
 of the lie being disinterested in the matter 
 
 and not being the arbitrator named in su<-,h notice, by which cer- 
 tificate it was declared thai the said land so shown as aforesaid 
 on the said map or plan and book of reference was '"^'i'' '^. 
 required for the said railway; that he (the said S irveyor) knows 
 the land and the amount of d image likely to arise to the Propri- 
 etor by the exercise of the powers of tlie siid Com- 
 pany, the petitioners, and that the said sum ot 
 dollars, WIS and in his opinion is, a fair compensaii )ii for the 
 said land and for the said damages. 
 
 'I'hat as appears by the affidavit of 
 hereto anne.\'-'d, the immediate occupation of the said land is 
 necessary t') carry on the construction of that portion ot the said 
 railway crossing the s lid land, and that the Company, the Peti- 
 tioners, are ready forthwith to i)roceed with such construction. 
 
 That tlie said Company Petitioners are ready an J willing to 
 give security to the satisfaction of your Honor, by depositing in 
 a chartered bank to be indicated by your Hon(;r, to the credit of 
 thi said Company, ihi Petitioners, and of ihj siid Proprinor 
 
 jointlv. suc'i sum of money as sliall be ordjr.'d by y;nir 
 Honor in that behalf; 
 
 Wherefore the Company Petitioners, praying actc of then- 
 readiness to give security as aforesaid by depositing such sum as 
 your Honor may deem tit; further jjray that your Honor may 
 be pleased to older that a warrant do issue to the Sheriff, or to 
 any Bailiff of the District of Montreal, as your Honor may deem 
 fit, to put the Company Petitioners in immediate possession of 
 the said portion of the said lot, in order that they may carry on 
 the construction of that portion of their railway which will pass 
 over the said lol of land, pending such arbitration ; and that by 
 the said wariant the Sheriff or Bailiff, as the case may be. he 
 authorized to put down any resistance or opposition that may be 
 offered, and for that purpose to take with him sufficient assist- 
 ance ; the whole with costs a qui dc droit. 
 
 Montreal, i8 . 
 
 Attorney for Petitioners. 
 
li 
 
 I' I 
 
 
 •clxxvi 
 
 I, 
 
 'rut Railway Taw ok Canada. 
 
 of tlic city of Montreal, the 
 
 Railway Company, aiiove naiied, tlie Petitioners, being duly 
 sworn, depose and say : 
 
 That I liave taken coninmnication of the foregoing Petition, 
 and that all the matlcis and things therein set forth a.id C)ntain- 
 cd arc tiui*; 
 
 That the immediate possession of the lands of the said pro- 
 prieior described therein is necessary to carry on 
 
 apart of the Railway of the said Company, Petitioners with 
 which they are ready forthwith to proceed. 
 
 And I have signed. 
 Sworn before me at Montreal, ") 
 
 this day of [■ 
 
 A.l). 18 ■ ) 
 
 To 
 
 ])t()])rietor in the foregoing Petition named : 
 
 Take notice of the foregoing Petition, and that the same will 
 be ])rer,ented for allowance to simeone of the Honorable Judges 
 of Her Majesty's Superior Court for Lower Canada sitting in 
 Chambers in and for the District of Montreal, on the 
 day of at 10.30 of the clock in the forenoon, or so 
 
 soon thereafter as Counsel can he. heard. 
 
 Montreal, 18 . 
 
 Attoni'^y for Pet if i oner. 
 
 Ajyroeinent to Sell. 
 
 I. of 
 
 hereby agree to sell to the Railway Company, 
 
 the portion of my property, being number 
 of the official plan and book of ret'erence of the Parish of 
 
 which is shown on the map or jjlan of the Railway 
 of the said Company under the number , as being 
 
 required for such Railway, being a strip of land feet 
 
 long by wide, across my said properly, as shown 
 
 by the said map or plan, containing arpenls and 
 
 hundredth of an arpcnt 
 
Forms ok TKOcHKniNGs in KxpuopuiATinN. dxxvii 
 
 Tlic price to be 
 payable in casli upon llie execution of a deed of sale of the said 
 right of way, such price to cover all claims for damages caused 
 to my property by the Railway. And pending the execution of 
 a deed of sale of the said land, for the purpose of which I will 
 furnish my tide deeds to the said Company forthwith, I consent 
 to the said Comi)any i)roceeding with its works thereon. 
 
 In witness whereof, I have executed these presents at 
 , in the said this d;iy of 
 
 189 
 
 In presence of 
 
 Notarial l)ee<l of Sale. 
 
 one thousand eight 
 
 No. 1 ■ 
 
 Sale by 
 to" I'hf Railway Company." J 
 
 On this day of 
 
 hundred and , before me, 
 
 he undersigned notary, duly admitted and sworn in and for the 
 Province of Quebec, practising 
 
 Appeared: 
 hereinafter called the vendor. 
 
 And the Railway Company, a body corpor- 
 
 ate, ha\ing its chief office in the said City of 
 hereinafter called the " I'urchasers," and herein acting by 
 
 their of the said city of Montreal, 
 
 Esquire, and duly authorized for the purpose hereof; 
 
 Who declared unto me, the said notary, as follows : 
 
 Whereas the piece of land, hereinafter described, is required 
 for the construction of the Railway, which the Purchasers are 
 empowered to make, and complete, and operate under and by 
 virtue of their Act of incorpoiation. 
 
 And whereas the vendor has promised to sell, convey and 
 transfer to the Purchasers the said piece of land, subject to the 
 conditions hereinafter mentioned. 
 

 II 
 
 II :!• i i 
 
 il 
 
 h 
 
 ;;: 
 
 u ,1 
 
 ClXXVIII 
 
 TiiK Kaii.wav I-.\\v 111 C'anaiia, 
 
 Now, ihcTL't'oiL-, ilifsc presents, and ilic said notary, witness : 
 
 'I'ii.it llie vendor 
 declare lo have sold and conveyed, and by tlii sc presents 
 
 do sell and convey with warranty against all gilts, dower;!, 
 mortgages, substitntions, servitudes and other eiK iimbrances 
 whatsoever to the Purchasers, accepting l)y their executive of- 
 ficer above named. 
 
 A certain parcel or tract of land situate in the parish of 
 county of ; nieasurinu' 
 
 feet in width, by about feet in length, iMiglish meas- 
 
 ure, and forming a total area of 
 
 known and designated under the number on 
 
 the location plan of the ?aid railway, duly fyled according to law. 
 
 'llie hereby sold piece of land, being a portion of lot numijer 
 
 on the official plan and J5ook of Reference of the 
 
 and being more parlicuUuiy described as 
 
 follows:— 
 
 of which the Purchasers declare to have a perfect knowledge, as 
 having setn and viewed the same, and with wliicii iIkv are satis- 
 fied. 
 
 The vendor lawfully seized thereof by virtue of sufficient 
 litle, as having acquired the same 
 
 To have and to hold the aforesaid bargained and sold piece of 
 land unto the i)urchasers, their representatives and assigns for- 
 ever. 
 
 And in consideration of the said sale and of the release of the 
 Purchasers from any claim for compensation for damages arising 
 from the exercise of the powers of the Company upon the piece 
 of land hereby conveyed as hereinafter contained ; the Pur- 
 ghasers bind and oblige themselves to pay the sum of 
 
 dollars, which said sum. 
 
 And in consideration of the said sum, the vendor do 
 
 hereby also covenant that the Purchas..;rs may construct and oper- 
 ate a railway on the said land, and in respect of such railway, 
 may exercise on the said land such powers as may be conferred 
 on them by law, witiiout any cLiiin for damages on account there- 
 
 IIP 
 
 i 
 
1m)KMS ok PkoCKKUINOS in I'Al'KOI'KI.MION. clxxxi 
 
 of; and tlie vendor Iicrcby iclcasc the I'mcliasors front 
 
 all such claims : 
 
 The vendor fm ihcr declare that the lierchy sold land 
 
 is free and clear of all uiorti,'a;4e:i and encinnbrauces. 
 
 This sale is further made subject to the following clause and 
 condition, viz.: 
 
 I. That the I'urchasers shall erect and maintr.in on each side 
 of the Kailway, proper fences, so far as they are required by the 
 Railway Act, and, further, shall construct, for the vcndo;, across 
 the said land, at a [jlace to be decirled ujion by the purchasers, a 
 convenient and pro[)er for the crossing of the rail- 
 way by farmers' implements, carts and olher vehicles, together 
 will) such openings, or gales, or bars, with fastenings as are re- 
 quired by law; the Turchasers being not bound to construct any 
 other crossing across the said properly ; the said vendor hereby 
 renouncing the right iherelo, as well for himself as for his heirs 
 or assigns. 
 
 And to these present ha intervened the following parlies 
 to wit: 
 
 T. Dame 
 wife of the said vendor 
 
 duly authorized by him to all the intents and purposes hereof; 
 who, in consideration of the premises, dolh renounce, as well for 
 herself as for her children born, or to be born of her marriage 
 with the said vendor, to all dower, either prefix or customary and 
 to all hypothecary claims for dower or matrimonial rights, and 
 for all other rights and claims which she or l-.er children may 
 have or could pretend in and upon the piece of land hereby 
 sold ; either by law. by contract of marriage, or otherwise. 
 
 The vendor shall have no expenses to pay in respect of and 
 under the present sale, except the costs of the certificates from 
 the Registry Offices. 
 
 And as security for the payment of the said sum of 
 dollars as hereinbefore agreed and of the interest thereon, the 
 hereby sold property is hypothecated in favor of the creditor 
 thereof. 
 
 And for the execution of these presents, the said parties have 
 elected their domicile at the place above mentioned. 
 
"f-t- 
 
 i| 
 
 '■' 1 
 
 j: 
 
 ■ti I 
 
 ,; 
 
 ! 
 
 1 '■ 
 
 i 
 
 I, 
 
 t: 1 ! 
 
 1 > 
 
 1 i. 
 
 clxxx 
 
 The Railway Law of Canada. 
 
 Done and passed on the day and year 
 
 firsl above written, under number thousand 
 
 hundred and and signed by the 
 
 aforesaid parties with the undersigned Notary, after these pre- 
 sents were first duly read over. 
 
 1^ 
 
 ,, 
 
 : 1 
 
 i 
 
 ji 
 
 J 
 
 
 I 
 
 ' ! 
 
 ;• I' 
 
 
 lit! 
 
 i! I 
 
 ■^. 
 
y and year 
 
 thousand 
 
 lied by the 
 
 these pre- 
 
 ANAIvYXICAL INDKX. 
 
 Page 
 Accid ts and Casualties -Power of Railway Committee as to m^airy ^^ 
 
 '"^° ' IV) 
 
 "- Notice to be given ; ■^•^- ^^ 
 
 ,j ii Penalty for omission 39o> '^ 
 
 '■ • • fl ..." 119 
 
 Commission to enqune into ^^ 
 
 i. <' Remuneration "v 
 
 Report " "9 
 
 ,, u Payment of Commissioners and 
 
 witnesses Append. 119 
 
 .. at crossings, etc. -See Negligence. 
 
 •' Investigation into • ;;.;v;;. A;p;;d; ,34 
 
 " Returns to be made '^'- 
 
 Acquiescence W Comp. in Acts of President 21 note (,) ^^ 
 
 "Acquiescence "-Meaning of ^^ ^^ 
 
 .'.".v.....".*..'! 365 
 
 Xt?^I^;e;;;;;;;ia;;.;;:;wh;;;uarises....... s-ote(.) ^^^ 
 
 .c Hypothecary "V." '.'.'.'.".".".139 note (3) 
 
 ;; ;^eifo^Jda.m;yCoa;,«.;;iam;ttheProvince.^.^^ ^^^ 
 
 ' ' Cause of • 
 
 .< Spc Limitation of Actions. ^^ 
 
 Aci':,of Afe^iitsand Servants 
 
 ;;:!:::!rS:^r:/ -:;:. .. acts of contractors (and s.e 
 
 ^" ..Agents,"" Officers")...... ••;• ^ ' 
 
 Wents-Contracts of carriage made with ^ 
 
 Liability of Company for acts of ^ 
 
 » Notice to, when notice to the compan)' • • ^3 
 
 <. Personal liability of ' 
 
 .( Power 10 bind company 
 
 .< Presumption as . o authority of .■....• -■• y 
 
 Agreement to erect station; how interpreted .8, 9 no^e 3 
 
 u to pay in fully paid-«P shares »7 3 
 
 . to take land in .vent of biU passing 78 "ote (3) 
 
 AA 
 
644 
 
 The Railway Law of Canada. 
 
 1.1 
 
 
 
 '! »i 
 
 (( 
 C< 
 
 « 
 « 
 
 Pack 
 Alighting at Stations— See Carriers of Passengers. 
 
 Animals, injury to, on track , Append. 91 
 
 Annual Statement — Directors shall cause to be jirapared " 27 
 
 Appeal from award 202, 203 cf sc,/., " 73 
 
 Practice 202, " 74 
 
 other remedies rot affected " 74 
 
 " to Governor in Council from Decision of the Railway Com- 
 mittee Append. ij, 
 
 Appliances for communication and stopping trains " U) . 
 
 Aqueducts — Power to moke »2 
 
 Arbitration .ns to crossing other railways 82 
 
 " Award — Service of 148 note (3) 
 
 " " delay for making 149 note, 150 note 
 
 " " Form of 149 note ; 189, 192, /gg 
 
 " " Not to be void for want of form Append. 73 
 
 " '' appeal from 1^1.202, '• 73 
 
 '•■ Finality of 151, '• 69 
 
 " " grounds of appeal 20J 
 
 " " questions of fact 203 
 
 " " Principles upon which Courts interfere in questions 
 
 of fact 203 
 
 *' " Remedies against 194 
 
 " " Interest on 188,189, 212 
 
 " " As a title to land.. 212 
 
 " Time in whicli to l)-' made Append. 71 
 
 Costs of 209. " 70 
 
 Desistment from 189, ' ' 72 
 
 " new notice to be given " 72 
 
 Irregularity of proceedings— Katific.ition 149 note, 150 
 
 147, .Append. 66 
 
 appointment of by party and of third arbitrator 148, " 68 
 
 First meeting 14S 
 
 To be sworn , 148, Append. 69 
 
 Reports of 148 note (2) 
 
 Duties of 148 note (3) 
 
 Examinaiion i)f witnesses 149. Append. 70 
 
 Evidence to 1)6 taken d )w:i in .vriting. ... .. '■ 70 
 
 Must act at meeting 152 
 
 Vacancy among 152. Append. 71 
 
 '' no re-commencement of jnoceedings " 71 
 
 Disqualification of > 52 
 
 " not disqualified unless personally interested 
 
 152, Append. 72 
 
 " when must be urged " 73 
 
 (I 
 
 Arbitrators . 
 
 Jl 
 
Analytical Index. 
 
 645 
 
 203 
 194 
 212 
 212 
 
 7' 
 
 70 
 
 72 
 
 72 
 
 150 
 
 66 
 
 68 
 
 1 48 
 . 69 
 
 70 
 
 70 
 152 
 71 
 71 
 i;2 
 
 72 
 73 
 
 Page 
 69 
 
 161 
 
 73 
 
 Arbitrators How to be guided in making their valuation 
 
 " Increased )value to remainder of land 154, Append. 
 
 " Lands injuriously affected '.by the construction of the 
 
 Railway 
 
 " Nature of damages that may be considered by arbitra- 
 tors 
 
 ' ' Value of land how to be estimated 175 
 
 " Access to landways and waterways 17^ 
 
 ' ' Loss r f business ' °4 
 
 " Injr , to business i°4 
 
 " Los. of privacy '§4 
 
 " Injury to franchises '°4 
 
 " " easements 185 
 
 iSs 
 
 70 
 
 116 
 
 «' «' trees 
 
 « Transmission ;of Record Append. 
 
 •« At the next general meeting " 
 
 Award — See Arbitration. 
 
 Baggage— Checks to be affixed to 344, Append. 
 
 " '• penalty for refusal 344, 
 
 " Evidence of value of 344, 
 
 Baggage— See carviers'of passengers' baggage. 
 
 Barbed wire fences 
 
 Beach— Right to occupy.... 
 
 Bells and Whistles— Locomotives to be furnislied with Append. 
 
 " to be rung or whistles sounded at crossing 
 
 (t " penalty for non-compliance " 
 
 112 
 
 113 
 112 
 
 262 
 
 137 
 
 no 
 114 
 114 
 
 " Best terms and conditions." "6 
 
 Bill of Lading— Fraudulently given 29 
 
 Bills and Notes— Power to issue 9^ Append. 46 
 
 « No seal reqiii.cd 93, " 4^ 
 
 Bills of lading, through— See Carriers. 
 
 Bop.iding the train 337 
 
 iionds. Debentures, etc.— Issue of 93, "7, nS, Append. 42 
 
 " Interest on 94. 95 'i"c^ "o'e (6) 
 
 u «< Sale and pledge of 94, 1 16, Append. 43 
 
 « " Reissue 94 
 
 it >« Lien and mortgage on property. 94, Append. 44 
 
 <t << Coupons— 95, 113 See " Coupons ■' 
 
 « << " Interest thereon 113 
 
 I.- ..- Registration 96, 114, Append. 45 
 
 « " Transfer 96,114, " 45 
 
 II « First charge on undertaking; 103 
 
 a ' ' Formalities in making and issuing no 
 
 til* " irregularity n ' 
 
 
 
 1 1 
 
 V i\ 
 
646 
 
 The Railway Law ok Canada. 
 
 
 ! , 
 
 11! 
 
 1:'! 
 
 i) ' 
 
 !' I 
 
 t I 
 
 ' ! i 
 
 :!: )i 
 
 Bonds, Debentures, etc. — Formalities — notice 
 
 
 
 
 I' AGE 
 . Ill 
 
 " pleading' want of 112 
 
 Stolen Ill 
 
 Negotiable instruments 112 
 
 Mandamus to compel registration 115 
 
 Default in payment 115 
 
 Pledging 116 
 
 Depositing as collateral sccurits 116 
 
 "Deposit" 118 
 
 " Issue," what constitutes. .. 117 118 
 
 Trustees 1 19 
 
 When they n^y Le made payable. .Append. 43 
 
 Holder to be a mortgagee " 44 
 
 '• power of, in case of non-pn\ - 
 
 ment '- 45 
 
 " " '■ rights of, defined '• 45 
 
 " *• Certain rights of bondiiolders not 
 
 affected " 45 
 
 ■' " See Debentures — See bondholders. 
 
 Bondholders — Rights of 95. 96. 103 
 
 '« Are mortgagees gj 
 
 ' ' I'rustees for 95 
 
 " Powers of 96 
 
 " Rolling stock 96, note (i), 107 
 
 " Right to seize railway 102 
 
 " " to earnings of railway 105 
 
 " " to after acquired property 106 
 
 " " of, to protect interests 120 
 
 Bonuses — Power to receive 77, Append. 37 
 
 a " Municipal 90, 91, 92, notes 
 
 Books — Inspection of, by Railway CommiitL'e relative to accidents. . . . 
 
 Append. 12 
 
 Borrowing Powers 97,118, " 42 
 
 " " Extent of 97,118, '■ 43 
 
 " " Condition Prt'cedeiU to 118 
 
 " " Excessive 119 
 
 " How exeicised iig 
 
 Boundary — Power to cross , 84 
 
 branch Lines — So, 81 and note I, Append. 40 
 
 " Powers of railway committee as to '' 10 
 
 " Power to construct for certain purposes " 56 
 
 " " " " notice. " 56 
 «« <i •' " appro- 
 val of railway committee " i^j 
 
 i 
 
12 
 42 
 
 43 
 ii8 
 
 119 
 119 
 
 84 
 40 
 
 10 
 
 56 
 56 
 
 
 Analytical Index. 647 
 
 Page 
 Branch Lines— Power to construct for certain purposes— approval 
 
 of railway committee— limitation of time. Append. 57 
 II « " " powers 
 
 as 10 ■' S7 
 
 Breach of Contract— Criminal " '53 
 
 " < ' Measure of damages for 422 
 
 Bridges over navigable rivers, etc., to be floored .\ppend. 82 
 
 '< plans of to be approved " °2 
 
 ' > substitution of one form of, for another " 83 
 
 <i ii << penalty for non-compliance. " 83 
 i( i< '• no swing bridge to be sub- 
 
 .--tiluted without permission " ^3 
 
 " over highways — Dimensions ^^4 
 
 " when only trains may be run over a bridge 259, " 89 
 
 «' tbdi-passengers to use foot-bridge if provided at cross- 
 
 " 121 
 
 ing 
 
 Bridges and Tunnels— Power to make " 3^ 
 
 • 1 '• Height of overhead 259, " 87 
 
 <t ■• " no higher cars to be used till 
 
 bridge is raised 259, " 87 
 
 ii '• Uiidge to be raised when reconstructed. " 88 
 and clear heading to be maintained 
 
 thereafter " ^8 
 
 „ 
 
 exception " 89 
 
 .. 
 
 penalty, " 89 
 
 - 2S9 
 
 " raising without consent of Municipality— Liability 259 
 
 •• accident occurring on account of— Leased line— Liability. 260, 395 
 
 Buildings— Power to erect 84, Append. 39 
 
 Burden of proof in cases of injury to horses, cattle, etc 402 
 
 By-laws— Must b.' sanctioned by Governor-iricouncil. . .. 20, Append, 100 
 When may be contested by action to account brought by 
 
 stockholder ^4 
 
 To be made by directors ....Append. 26 
 
 Company may make by-laws, rules and regulations 
 
 for certain purposes ... " 9^ 
 
 Li ti <' " 
 
 speed " 98 
 
 time " 99 
 
 '• " " " 
 
 57 
 
648 
 
 The Railway Law of Canada. 
 
 By-laws— Company may make by-laws, loads. 
 
 ircjuds 
 
 nuisances .... . . . . 
 
 use of railway 
 
 i< « 
 
 conduct of ol'ticeis . 
 
 
 Page 
 
 Append. 
 
 99 
 
 (( 
 
 99 
 
 i 1 
 
 99 
 
 >i 
 
 99 
 
 99 
 
 !; 
 
 i 
 
 .,1 
 
 '■I 
 
 r '' 
 
 I' 1' 
 
 management . . " 
 
 " regulating travelling on railway 
 
 of municipality allowing rattle to run at large, must be un- 
 equivocal and affirniaii ve 
 
 " Penalty for violation of .. . Append. 
 
 " Form of '• 
 
 ' ' Sanction ' • 
 
 " Publication .... • ;," 
 
 " " atiecting employees '• 
 
 ' ' Who shall be bound by such ' " 
 
 '' Summary interference in certain cases " 
 
 " Certified copy to be evidence • ' 
 
 " Punishment for violation of certain " 
 
 " See Municipal Corporations. 
 
 Calls — Action for — Inegularities in organization 39, note (4), 
 
 55, 63, note (4) 
 
 Illegal acts of directors 39, note (4), 
 
 Directors may make 63, Append 
 
 Formalities as to making 63, Append. 
 
 " notice 64, '• 
 
 Intervals for naking 64, Append. 
 
 Directors may make mure than one by resolu u^n of I- ard 
 
 Append. 
 
 Payment 65. " 
 
 " by note 
 
 Instalments 65, nole (l) 
 
 Interest on overdue Append, 
 
 Recovery by suit •' 
 
 What allegations only necessary in suit for calls " 
 
 " Penalty for refusing to pay " 
 
 *' See Shares. 
 
 " See Shareholders — Action by creditors against. 
 Canadian Pacific Ry. — Act of Incorporation, Consol. Ky. Act, 1879, 
 
 7, note 
 
 « 
 <t 
 
 « 
 
 (t 
 
 99 
 330 
 
 407 
 
 99 
 100 
 100 
 100 
 
 lOI 
 lOI 
 lOI 
 
 102 
 
 130 
 
 55 
 28 
 28 
 28 
 28 
 
 65 
 28 
 29 
 66 
 
 29 
 39 
 29 
 
 33 
 
 I 
 
 ^, ■ 
 
Analytical Index. 
 
 55 
 28 
 28 
 28 
 28 
 
 65 
 28 
 29 
 66 
 
 29 
 29 
 
 29 
 
 33 
 
 (I 
 « 
 
 649 
 
 PAGli 
 38 
 • 17 
 17 
 17 
 18 
 
 32 
 
 35 
 
 35 
 
 18 
 
 257 
 
 Canals— Power to intei fere with 82, Append . 
 
 Capital '^W^^' 
 
 Capital stock — Division of into shares i^i 
 
 " Application thereof '3> *7) 
 
 How it may be increased 14 »"'! s^e note ; 
 
 Personal property 35- Appe"''- 
 
 Amount fixed by special Act 
 
 Subscription to 
 
 Increase 35. 89, Append. 
 
 " Carried "—Interpretation of word as used in sec. 191 
 
 Carriers-Liability of company as earners before opening line for 
 
 traffic 
 
 Carriers of Goods— Obligation to carry 
 
 " Liability as 
 
 ' ' Insurers of the goods • • • 
 
 Difference between carriage of goods and carriage 
 of passengers, as to company's responsibility. . . 
 
 29S> 322, 323. 324. 
 
 Vis Major, etc 295, 
 
 Shrinkage of goods 296, 
 
 Limitation of liability for negligence 
 
 <i " generally 
 
 Through bills of lading ; liability beyond Carriers' 
 
 line 
 
 Through bills of lading ; difference between Amer 
 
 and English rule 
 
 Limiting liability beyond line 
 
 Otlier conditions limiting liability 
 
 Special vate 
 
 ■• I'ldper vice." Injury to animals 3'° 
 
 Richts of consignee where goods damaged 3" 
 
 "* 1 1 
 InsuiTicient pAi^king J 
 
 Delay in carriage of fresh meat 3^2 
 
 Liability of succeeding carriers 
 
 When contract >i > niriixjji. begins 
 
 (. ontracth of carriage, acts of agents 
 
 Stoppage in transitu 
 
 Liability after arrival of goods 
 
 ' ' notice to con>ij;nee 
 
 •« goods at owner's risk 
 
 >• when liability ceases 3'8 
 
 Lu-vbility as warehou-cmen 3'8, 321 
 
 When goods '• discharged " under sec. 246 3^1 
 
 Reasonable lime for removal 32> 
 
 « 
 
 CI 
 
 It 
 
 11 
 II 
 .'« 
 I< 
 <l 
 <• 
 •« 
 
 ll 
 
 
 292 
 
 294 
 
 295 
 
 325 
 
 296 
 
 312 
 
 296 
 
 302 
 
 303 
 
 304 
 305 
 309 
 310 
 
 3«2 
 313 
 314 
 315 
 317 
 317 
 
 3'7 
 
ri; 
 
 650 
 
 The Railway Law of Canada. 
 
 it i 
 
 1 
 
 ; 
 
 r '' 
 
 1 
 
 
 ')■ 
 
 
 M 
 
 '!l 
 
 1 1 
 
 ;:il 
 
 
 
 
 
 I'' 
 
 I' 
 
 '' '! 
 
 r I' 
 
 I 
 ''''I . 
 
 Carriers of Goods — American aulhoiities conflicting. 
 
 " Measure of damages 
 
 Carriers of Passengers — Nature of liability 
 
 Pack 
 322 
 418 
 322 
 
 c< 
 <( 
 
 « 
 
 « 
 
 « 
 
 (( 
 (( 
 l( 
 It 
 
 t( 
 
 >■ 
 <• 
 (I 
 l< 
 
 Distinction between carriers of passengers and 
 
 carriers of goods . . 322 i? se^. 
 
 " " Fiench rule 
 
 " " Quebec rule 323, 
 
 Degree of care 
 
 Latent defects in vehicle or road-bed 
 
 Insufliciency of roadway 
 
 C ro wn as a carrier 
 
 Def;ree of care due those who are not regular pas- 
 sengers 
 
 Riding in unauthorized place 
 
 " " b.ngg.ige ear 330, 
 
 II 
 II 
 
 Duly of railway servants in charge of train 
 
 Alighting from trains at stations 
 
 Hoarding the train 
 
 Delay in can iage 
 
 " ordering special train 
 
 Limiting liability 
 
 " notice of 
 
 " Measure of damages for injury to persons 
 
 Carriers of Pasfengcrs' Baggage — Checks 
 
 " " Personal baggage 
 
 " Unchecked baggage 
 
 •' When liability begins 
 
 " " ceases 
 
 " " Liability of sleeping car companies. . . 
 
 " " Limiting liability 
 
 " " " evidence in such cases 
 
 Cars — See Rolling Stock. 
 
 " Position of passenger cars Append. 
 
 " Not to stand on Railway crossings " 
 
 " " " penalty for violation " 
 
 " " " proviso " 
 
 " Penalty for placing baggage cars in rearofpass. cars. " 
 
 Cattle — Not to be at large near railway 403, ' ' 
 
 " " such cattle may be impounded .... " 
 
 «' " no right of action in such cases 403, " 
 
 ** Not to be allowed within fences " 
 
 •• " exceptions " 
 
 •• At large on the highways, injuries to 
 
 323 
 32s 
 
 325 
 326 
 327 
 
 329 
 330 
 
 332 
 333 
 333 
 337 
 339 
 340 
 342 
 343 
 424 
 344 
 344 
 349 
 351 
 
 "1:2 
 
 357 
 361 
 
 36 1 
 
 no 
 
 "5 
 116 
 
 116 
 130 
 120 
 120 
 120 
 120 
 120 
 403 
 
 r 
 
 m 
 
 ^2 '■ 
 
Analytical Index. 
 
 6S< 
 
 120 
 I 20 
 120 
 120 
 120 
 403 
 
 Cms— Killeil or injured on the Railway 
 
 " Bylaw allowing, to run at large 
 
 " Treatment of while in transit by rail or water Append . 
 
 Cattle Guards— Erection 260, 
 
 • ' Omission or neglect to make 
 
 <• Responsibility for damage to animals. ..261. " 
 
 '< Time for constiuction if land is occupied " 
 
 '• When company isexcmpt from liability. .263, " 
 
 • ' .Vt crossings — Absence of, injury to cattle 405, 
 
 • ' See Fences and Cattle Guards. 
 
 Change in line of railway may be made 79i Append. 
 
 " no change of terminus 79? " 
 
 Charier — I'reference for Dominion 
 
 " Effect upon of delay in constructitm 74> Append. 
 
 " Power of Lieutenant Governor to cancel 
 
 Checks to be affixed to baggage 344, Ajjpend. 
 
 " Penalty for refusal 344, 
 
 Children— Negligence 
 
 Claims of workmen, laborers, etc , against company or contractors, 
 
 etc., when retained out of subsidy .\ppend. 
 
 "Clerk of the Peace "—Meaning of 
 
 Common employment 
 
 "Company "—Meaning of Append. 
 
 Company— Cannot put chase its own stock, etc iCj, Append. 
 
 When liable for acts of President or Secretary 
 
 " When liable for reports of directors 
 
 " 1 iable for libel of manager 
 
 " Liability for acts of its servants 
 
 " When liable for negligence of contractois 30. 
 
 " When bound by acts of agent 
 
 " Powers of— See Poweis. 
 
 " Liability of for fraudulent transfer of shares 
 
 " .\ot bound to see to trusts 4^, Append. 
 
 " .May not purchase railway securities 16, " 
 
 (( " exceptions " 
 
 (t " penalty 
 
 " Not relieved from legal liability by inspection, etc. " 
 
 " Liability of in certain cases 
 
 " .See Corporation. 
 Compensaiion for damages by exercise of powe's 85, Append 
 
 PACil', 
 
 :•,¥' 
 407 
 
 157 
 89 
 
 (JO 
 
 9> 
 
 91 
 
 91 
 
 , 400 
 
 11 
 
652 
 
 'I'hk Railway Law ok Canada. 
 
 
 !• '! 
 
 
 
 
 M ,1 
 
 1' •! 
 
 
 
 Conductors — I'oweis of 
 
 Conservatory attachment by bonilholders . . . , 
 Consignee — Rights of where goods damaged. 
 
 Constitutional Questions 
 
 Constables — Appointment of 
 
 4. 
 
 A|i|it 111' 
 
 If 
 
 •I 
 
 " Oath to be taken 
 
 " " form of 
 
 " by whom administered 
 
 " Powers of 
 
 ' ' General powers 
 
 " Ai rest of offenders " 
 
 " Dismissal of 
 
 " " effect of 
 
 ' ' Record of appointment to be keyil 
 
 " Punishment of when guilty "f neglect of duty.. , 
 
 "Constructed or to l)e constiucted under the authority of any Act 
 
 passed by the Parliament of Canaila ' 
 
 Construction — Limitation of time for commencement and comple- 
 tion of work 73, Ajipend. 
 
 " Result of delay, upon charter 
 
 Partial 74 note (2) 
 
 Not to be jjroceeded with until plans maile and ilo- 
 
 posited 77, Append. 
 
 " From the City of Ottawa" 80 note 
 
 Of the Railway (See Contracts) 
 
 Contract — lireach of, Measure of damages 
 
 " ' ' Criminal Law Append. 
 
 Contractors— 1 )isabilities 
 
 '• Negligence of — Liability 30, 225, 226 ri s,-i/. 
 
 " Purchaser of land for construction —payment — receipt, 
 
 title 
 
 " Liability of company for acts of 
 
 Contractors' men — Liability for injuries to 
 
 Contracts — With directors, by company 21 note (3) 
 
 " Power of head of company to bind it 2t note (3) 
 
 " For construction of railway 
 
 '' " form of , 
 
 Necessity for seal 
 
 Conditions and stipulations 
 
 Engineer's certificate 
 
 Extra work 
 
 Quality of work 
 
 Bond — condition — mutuality 
 
 Ratification — question for jury — repu- 
 diation of part 
 
 'A(lr; 
 I JO 
 
 .1" 
 
 S 
 125 
 
 [25 
 
 '25 
 
 126 
 
 126 
 
 I2& 
 127 
 127 
 127 
 128 
 128 
 
 
 « 
 
 
 « 
 
 
 <l 
 
 
 (( 
 
 
 <l 
 
 
 « 
 
 
 •( 
 
 36 
 
 74 
 
 61 
 
 218 
 
 422 
 
 153 
 22 
 
 232 
 234 
 330 
 
 218 
 218 
 
 2lg 
 
 225 
 227 
 228 
 229 
 229 
 
 2^0 
 
 ' 
 
Analytical Indkx. <^53 
 
 I'AUE 
 
 Contracts— For consti action of Railway —Condition precedent —inde- 
 pendent agreement ^i^ 
 
 (« •' Land grant 8ul)sidy 232 
 
 It •• Specific performance -.v? 
 
 Contributory negligence 3 > 37 
 
 Corporate seal— Necessity for 218 ft s<'</. 
 
 Coriiorations— Powers vei-ted in 
 
 '. Members of-Liability 12, Append. 35 
 
 " See Company. 
 
 Costs— Of application for warrant of possession " V 
 
 " Of proceedings in confirmation of title " ''^ 
 
 " Of arbitration -°9> " "o 
 
 (ji;, 113 
 
 Coupons ' 
 
 " Interest on 3 
 
 « Place of payment 3 
 
 113 
 
 " Suit upon 
 
 .1 »« • c ....Append- 2 
 " County "—Meaning of "' ' 
 
 "Conn"- " ;: \ 
 
 Criminal Law affecting railways ^ ^ ^ j 
 
 «> Criminal breaches of contract " '53 
 
 t' T'ltentionally endangering the safety of persons 
 
 on the railway ' 54 
 
 " Mischief on railways 55 
 
 <« Obstructing the construction or use of any 
 
 •1 . " '55 
 
 railway ■'■^ 
 
 » Iniuries to packages in custody of railways. . . " ' 5° 
 
 . , " I so 
 
 " Forging tickets, etc -' 
 
 u Obtaining passage by false tickets " '5 
 
 ' ' Stealing on railways -" 
 
 'I Stealing railway or steamboat tickets " '57 
 
 «' Treatment of cattle while in transit by rail or 
 
 " '57 
 
 water 
 
 Crossing other railways ....Si Append. 38, 1 1 and see Crossing in/n,. 
 " See Intersection of Railways ' 
 
 ,, . T, 2;s. Append. 07 
 Crossings, etc—l- arm 7. -=55. l- ^^^ 
 
 I < Accidents at -^ 
 
 .. Cost of fencing approaches to, Ry. Committee.Append . 1 1 
 • « Approval of Railway Committee 263, " 79 
 
 i« Notice ^ ' 
 
 << By Street Railway 
 
 << Railway Committee may make regulations.263, " »o 
 
 Necessary apparatus may be ordered to be 
 
 J 261 " 80 
 
 adopted ^°3. 
 
 Proportioi. A expenses to be paid by each 
 
 ' " Si 
 
 company 
 
IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 i 1.0 
 
 1.1 
 
 11.25 
 
 «50 ""^~" M^^ 
 
 ta Itt 12.2 
 
 ^ IJ4 ■■■ 
 It lis |2£ 
 
 1.4 ■!.6 
 
 7: 
 
 
 v 
 
 Photographic 
 
 Sciences 
 Corporation 
 
 23 WIST MAIN STRUT 
 
 WHSTIR.N.Y. t4SS0 
 
 (716)172-4503 
 
 
 ■^ 
 

' 1 
 
 !!: 
 
 !'' 
 
 ( • 
 
 ( I 
 
 §< 
 
 I 
 
 If 
 
 ^54 TnK Rap. WAV I,a\v ok Canada. 
 
 Page 
 
 Crossing, etc. — Intersection of railways umlcr priiv'!, char- 
 ter 264, Ap|)cn(l. 81 
 
 •' llifihways 251, 253 
 
 " Bfils to l)c rung or whistle sounded Ajipcnd. 1 14 
 
 " Person to he stationed at 263, " 114 
 
 •• Electric railway crossings " i»4 
 
 " Trains to lie slopped at 263, " 114 
 
 •• '• " excejUion " 115 
 
 •• Foot passengers to u>e foot bridge if jir )vided. " 121 
 
 " " " i)enalty.. " 121 
 '* Railways which cross I.ioniinion lines arc sub 
 
 ject to I toniinion legislation " I7,f> 
 
 '• Neglect to ring bell at " 404 
 
 " Apiiroaches lo ;S5 
 
 " *.cci(lenls at. See Negligence. 
 
 C;own ;is a carrier 328 
 
 " Duly of as lo boundary ditches 244 
 
 Crcwn Lands — I'ower to take 1 37, Ajipend. 46 
 
 " Alienation of 137, '■ 41 
 
 Curator to substitution — Power of lo convey lan<ls 140 note (3) 
 
 Current earnings — See learnings. 
 
 Damages — Measure of, neglcL-i to transfer shares 46 
 
 " Causeii by |>reliniinnry survey, prescription 75 note (4) 
 
 " Action fur S2 nf)te (2) 
 
 " Overflow of ditches .S3 note ( I ) 
 
 " Krection of snow sheds , S4 note (2) 
 
 •• Compensation for 85, .Append. 41 
 
 " lo land., etc., incidental 139 note (3) 
 
 (See Arbitration — Land), 
 
 •• For smoke, noise, etc 16S, '70 note (4) 
 
 •' To cattle on track 396, .\p|iend. 9 I 
 
 '* Through not using l>est appliances " lou 
 
 " Limitation of, .action for 26?). 362, " 128 
 
 •' " what may be pleaded " 12S 
 
 " For extortionate toll „ " I3'> 
 
 '• Caused l)y construction of railway 23S 
 
 •• Compensation a bar lo 238 et sfi/. 
 
 " Interference with ditches 23S 
 
 " Surface water 23() 
 
 " (Quebec Law 242 
 
 " Obstruction and diversion of water courses 243 
 
 " Navigable water 244 
 
 " Subsequent purchaser of land 244 
 
 ' ' I )uty of Crown 244 
 
Analytical iNDhx. 
 
 655 
 
 1'\.;e 
 
 Un mages — Interference vith highways 245 
 
 Common to all 2\ii 
 
 When not considered ns incluileil in coiupensaiioii for 
 
 
 land taken , 
 
 
 -^ss 
 
 Default 258 
 
 Caused by rea^on of the railway 266 c/ >,■ ;. 
 
 " " Jurispriidence on the cjuesliun 2()7 it sdj. 
 
 " ('ontinuin^, limitation uf actions in such cases 2*39 
 
 " For ejectment of iiassciigets from cars for n(pni>aymcnt "I 
 
 fare 28; 
 
 " Measure in sucii cases , 289 
 
 " I'or delays in carriage of jjasstngcrs ,i4' 
 
 " llylire 407 
 
 " " ' -'ideiice in sucli cases ii.> 
 
 " " Rule in Quebec as to damage i)y fire .. 1-14 
 
 ' ' Measure of M ^ 
 
 " " contract <jf cariiajje of yoods 41S 
 
 " '■ Ureach (if contract 4-2 
 
 " '• Injuries to persons (-4 
 
 " " " to cattle I2i> 
 
 I lebentures — Muincipal 90, i|i, 92, noti>- 
 
 " Issue of '!,<. Al'pen 
 
 " Intcies't on 94, 
 
 Sale an<l pledge of 94, 
 
 " Lien on or mortgage of pro])erty 114, 
 
 " Ueijij-tratioii ')<>. 1 141 
 
 " Holders. See Hondholdcrs. 
 
 " Transfer .)i>, 114, 
 
 " Stolen 
 
 " Ni-gotiable instruments . , . , 
 
 Debts of railways subsidized by Troviiice of CJueliec Append. 146 
 
 ' 'day in cairiage of pas>engers .;.i'> 
 
 " " of goods. See Carriers of good<, 
 
 " Depattment "—Meaning of Anpend. 2 
 
 " Deposit " of i;<-nds ''■'*' 
 
 "Deputy"— Meaning of Ap|)end 2 
 
 Dcsistment fiom notice of expropri.uion 1S9, •• 72 
 
 Deviation of line 7"'> 
 
 " not extension '"^o note 
 
 Directors — Provincial, their powers i.^ Append. 
 
 Electionof 13. '•*< " '^• 
 
 " action to .set a-ide lX note (5) 
 
 " dc facto 
 
 t2"'il'fication 19, Append 
 
 43 
 43 
 43 
 44 
 45 
 
 4.S 
 I I I 
 i 12 
 
 ';3 
 
 '7 
 
 » < 
 
 -J 
 
 23 
 

 
 I < 
 
 1 1 
 
 n 
 
 I ' 
 
 656 Thk Railway Law of Canada. 
 
 Pack 
 
 Directoi's — Mayor, reeve, etc., of municipal corporati(>n when, 19, Append. 19 
 
 ■■ Vacancies 20, .Append. 23, 24 
 
 '• Meetings of — notice 21 
 
 " Contracting wiili the company — power to vote. . .21 note (3) 
 
 " Voles of 22 Append. 25 
 
 * ' As sbarelioiilers 21 note (3) 
 
 Sultject to shareholders and by-laws 22 " 25 
 
 '• i tisaliilities of 22 " 25 
 
 Removal of 23 
 
 .\s trustees 24 
 
 Duties of 24 
 
 liability of 24 
 
 " Personally liable only when culjiably negligent 25 
 
 When not liable for error of judgment 25 
 
 Joint and several 25 
 
 How far knowledge of co-diiector is knowledge of di- 
 rector 25 
 
 " For false reports . . 26 
 
 " Compensation of 25 
 
 Reports, liability of company for 2<) 
 
 " Powers as to transfer of stock 44 
 
 May sell or pledge unissued shares 6S 
 
 " May is.sue stock as paid u]) to contractors, etc. .6S, Append. 20 
 
 " Liability for paying dividend out of capital -i 
 
 ' • Issue of debentures, bond, etc 93 
 
 '• Votes at adjourned ineetinj;s \ppend. 23 
 
 ' ' Terms of oflice • ' 24 
 
 '• <^uorum •' 25 
 
 " .Acts of niajoriiy binding '• 25 
 
 '■ Shall make by- liws " 2() 
 
 " " appoint officers " 26 
 
 " " cause annv.al statement to be prejiared " 27 
 
 Ditches S3, " 39 
 
 1 )itchcs and wat-rcnurse^ -—Interference with 23S 
 
 Dividends and interests — WlieTi declared 69, Append. 30 
 
 " Kate of 69, '• ^o 
 
 ' ' Net jiiotils, what are 6(} 
 
 " Not 10 inijiair capital .. .. Append. 30 
 
 •' I'ayinenl out ofcajiital, liability of direc- 
 tors for 71 
 
 '• Interest may be paid on certain sums. A])pend. 30 
 
 Domicile of (ompany 12, " 17 
 
 Drafts — Acceptance by secretary and accountant 27 
 
 Drains, etc. — Power to make S2. .S3, A]>iJend. 39 
 
 ] 
 

 Anai.ytkai. Index. 
 
 657 
 Pack. 
 
 Drains or oth-r pipes— I'ower of Ky. «' >mmitte-- as t Appcn.l. 
 
 Karningsoftlie >aihvay— Ri«ht of mortuances to 105, ApiK-nd. 
 
 Kasements— Injury to ' ' 
 
 Kjectment for non payment of fare 2S3, 287, Append . 
 
 • ' measure of damajjes for 
 
 lileclric ligl.t wires or poles «... A l'P«"'' • 
 
 Kminent domain 13O ./ ..,/. (S.e Lands). 
 
 Km ployees— Safety of regulated by railway committee Append. 
 
 Injuries to 
 
 Endangering safety of persons on railway Append. 
 
 Engine driver— Liability for manslaughter 
 
 Engine— See Rolling stock. 
 Engineer— See Inspecting Kngineci. 
 
 Engineer's certificate 
 
 Estoppel Refusal to transfer sliares 
 
 Evidence— Notice of meeting as 
 
 " of proceedings at meeting '7. 
 
 Certified copy of by laws to be 
 
 of value ofbaggoge 34»- 
 
 Admissibility of, notice of conditions on ticket 
 
 Burden of proof in negligL'nce cases 3 "->• 
 
 I'resumption of negligence 
 
 as to damage by fire. 
 
 Executors— I'ower to convey lands Uo. Api)end. 
 
 ,, " limited in certain cases I4I. 
 
 E-xpre^s companies to have equal facilities. 279, 
 
 '• messenger— Injury to 
 
 E.\propriation— See Forms. 
 
 .. i3r)_See also lands, also arbitration. 
 
 '• Compensation a bar to all further claim for damages 
 
 ' 1S6. 
 
 .Append. 
 
 44 
 
 '«5 
 III 
 
 280 
 
 10 
 
 388 
 
 '54 
 
 28 
 
 46 
 21 
 98 
 102 
 r 12 
 361 
 402 
 
 413 
 62 
 
 63 
 
 IO<) 
 
 -52(1 
 
 255- 
 
 Desislnienl from notice ol 
 
 Expulsion of passengers refusing to pay fare 
 
 Extension of line net deviation 
 
 Extra land 
 
 Farm crossings 
 
 " Rights as to Subdivision of lot 
 
 '• What included in tiie term 
 
 Federal and I'roviiicial .\cis 
 
 I'ellow servants 
 
 Fences at crossings ' " ' 
 
 Fences and cattle guards - '"' 
 
 .. " Fastenings at hurdle gates if'2, 
 
 Omission or neglect to make fences 
 
 238 
 
 |8<» 
 
 2S3 287, Aiipend. 1 1 1 
 So note 
 
 ■Xppend. 
 
 ...25S. 
 
 Append. 
 
 ^7 
 
 -5'' 
 
 259 
 
 2 
 
 ,^S8 
 
 84 
 
 8<) 
 
 89 
 
 90 
 
f-. 1 
 
 4 
 
 r I 
 
 1 
 
 
 6.SS 
 
 Till R Ml. WAV I. AW OK Can AHA. 
 
 Pa'-.e 
 
 Fences nnd Ciillle (liiaid-, — 
 
 •' " kcsiionsiliility for (lamayc to animals,. 396, Append. 91 
 
 •• •' Time for construction if land is occupied.. . " 9I 
 
 " " Wht-nconipnny isexempteil from lialiiiity 263, " 9I 
 
 •' " I'enoes at crossiiij;s ..., " 91 
 
 '* •' (iatesat farm cnissing* to l)e kept closed 36 J, " 9I 
 
 •• •• IVnalty for Icavirii^ t;ates open 262, " 92 
 
 '• •• tJ(,mpaiiy not lialilo in sucli cases " 0.2 
 
 " •• Liability to fence at common law j6o 
 
 •• " Oblij^ation to fence 2O0 
 
 " •' ■' •• in the province of Qn(.d)i-'C. . .2(»o, 261 
 •• " Fences must l>e turned in to tlie cattle guards 262, Ap- 
 pend 9I 
 
 *• " Uarl)ed wire 2()2 
 
 •' " Com])any not cnliiled to notice that fences are out of 
 
 repair 262 
 
 *• " Lial)ility where cattle stray ujion the tr.ack.39r) f/ .re,/. 
 
 " '• I'.vidence as to defective 402. .\o^ 
 
 Ferries — Obstruction to 1S4 
 
 Financinj; of railway companies S-j el seq. 
 
 Fire — Damage by 407 
 
 " Remoteness of negligence 409 it se,r 
 
 " Evidence as to ilaniage by 413 
 
 " Rule in (Quebec as 10 damage by H4 
 
 F'orce majeure — .See Carriers, of (loods — tJarricrs of I'as>engers. 
 
 Forgery of Railway tickets, etc .-Xppei. 156 
 
 F'orms — Fay list under Stat. <Jue. iSo,;. ch. 36 •• 150 
 
 " Claims of foremen, woiknieii. etc., against subsidized 
 
 railways in the I'rovince of 'Jiiebec •■ 151 
 
 •* For (lovernment returns " 13S 
 
 •' i'ldceeilings in e.\propriation •■ loi 
 
 .irbilraiion notice, .surveyor's ceilificate and 
 notice of application to County Judge .... 
 
 .Vppcnd. 162, 163 
 
 *• *• an'uKivit Append. 164 
 
 •' " notice to desist " 165 
 
 •* " wan ant from Judge of C'ounty Court . " 165 
 
 '• " notice of application to Judge " 166 
 
 *' '• appointment of third arbitrator . ... . " 166 
 
 •' •• award •' 167 
 
 «• •• agreement for right of way •' 167 
 
 •« " In Qjithec •' 1(38 
 
 •« •* arbiintor's award " 168 
 
 '• *• warrant of possession " I70 
 
 «• •* certificate of bank cashier •• 171 
 
 '!!( \ 
 
 y 
 
 t 
 
 \l. 
 
 
Anai.viical Indkn. 
 
 f>59 
 
 I'Alih 
 
 4 
 
 1 .,;iiis— I'roceedinRS in ICxi-ropriation 
 
 S/'ccial tc>iii< til- I'lc: iiice <J ('i«-''i-'- Aiipeixl. 17^ 
 
 ,. .. notice tjfex|>roiiii:ition " '7- 
 
 t, .1 petiiionforwarrant of possession. ■ I7,> 
 
 i> <» at.;itemuiit to fell '" '7'' 
 
 ii " notarial (lec<l iif snlf " '77 
 
 I'lancliis 
 
 • lancnisc 
 
 May \k reviveil ''■'• 
 
 " Morli;a{;e of 
 
 •' Tower to alieiiatt- 
 
 Freight charges— Sec roll«. 
 " See (looiis. 
 
 " False receipt 
 
 Delivery to unauihoii/.ed aj,'ent ^9-30) 
 
 l.„.gs-!'ackinK .V'4- >•"• Appeml. 
 
 Gas pipes— Tower to divert • • • f^.v 
 
 Tovers of Kailuay Comiiiitlee as to interference 
 
 wiih Append, II. 
 
 (iates — At faun crossings to be kept closed .2<).2, 
 
 Tenalty for leaving open -2"^. 
 
 Uwfeclive fastenings— Liability for cattle inj.ired in conscjiience 
 
 of 
 
 Fastenings 
 
 Hurdle gale-, when not in comiilianre with Haliite 
 
 Maintenance of 
 
 See I'ences and Cattle Guards. 
 
 General Matiager or Superintendent — Toueis and diiiies of 
 
 «' •• See Manager. 
 
 '• Towers — See Towers. 
 
 Ijitis— Tower to receive 77- Append. 
 
 "Goods' meaning of 
 
 Goods— Sale of. in dcfiult of payment t'ftol!.- 200, 
 
 Sale of unclaimed 290, 
 
 Teiialty f')i refusing to receive and convey 
 
 'tcovery 
 
 Conveyance of 29^. 
 
 • . <> right of action in case of negleci. . 293, 
 
 Dangerous 293. 
 
 •' to Ije plainly marke. I 
 
 II « '• penally for contravention. .. . 
 
 <• '• may be refused ' ■ 
 
 • < •• carriage of such 
 
 II •• '•' penalty for contravention. . •' 
 
 Obligation to carry 
 
 I 
 
 "■> 
 100 
 ii>i 
 
 .i'4 
 116 
 
 9" 
 
 92 
 
 100 
 100 
 loS 
 109 
 Iln 
 I 10 
 112 
 I 12 
 112 
 
 «I3 
 ".'^ 
 ".> 
 
 2C|2 
 
u6o 
 
 I iiK Kaii.wav I, aw Of Canaua. 
 
 
 •I* 
 
 1 1 
 
 
 I'AOK 
 
 (.jooils — Obligation lo carry d.ingcrous f;oo<l» 293 
 
 •• See Tolls. 
 See Lien. 
 See (.'arriers of CjuckIs, 
 
 (ii.inil Trunk Railway Act anil Railway Clauses CoihoI. Acl 7 
 
 Gravel, etc , for ccMUlruciion I44, 145, AiipeiKl, 52 
 
 Guaranteed and jireferred stock — Dividends on 72 
 
 ( iuardinns may convey land 140 
 
 llif^liways — l*o«er In divert ,S2, Append. 39 
 
 Meaning of word •' 2 
 
 " Power of Railway Commiltcc as to..., 245, 253, " 11 
 
 •' To 1)0 restorcil to f'^rnier stale " 41 
 
 Crossings " 83 
 
 •• " railway not to he cariied along liifjliway 
 
 witliout ]iermisstun of proper authority 
 
 24s. 253, " .S3 
 
 '• IVnalty " ,S3 
 
 «« '• variation wlien crossinij on tlie level " l<4 
 
 <» '• dimension of lindj^es over, (I-J inclination. 253. '• S4 
 
 " •• inclin.ition of, at 253, " H4 
 
 •' •' fi^^iitcs 253, " 84 
 
 " •• Costs thereof in ceilain cases 253, •• 84 
 
 •• " plan of to lie sulmiitted 253, " 85 
 
 « " powers of Railway Committee 254. '• .S^ 
 
 • ' •• as to land rif|uirid for " 8? 
 
 • • '* RaiKv:iy I'onimittee may make legula- 
 
 lions 254, " 86 
 
 »' '• Penalty for noncompliance •• 86 
 
 •« •' time may l)e extended " 86 
 
 •• " si{;nl)oai(l over 255, •• ,S6 
 
 Interference Willi— Damages 245 
 
 Approval of Railway Committee 253 
 
 bridges connecting highways 255 
 
 Horses — Injuries to on track, 401, (and see Cattle.) 
 Hypothec — See Mortgage. 
 
 of lands as security 94, note I 
 
 " Distinction between mortgage and 122 
 
 Hypothecary action 14^, i^^ 
 
 • ' creilitor 142 
 
 Immoveables — Rolling stock whether movjables or immoveables 107 
 
 Indian Reserve lands 138, Append. 47 
 
 Injunction — To prevent meeting 16, note (6) 
 
 •' To enjoin directors from paying dividend 7i,note(6) 
 
 •' To restrain company from operating road where land taken 
 
 w ithout compensation 216 
 
Anai.vtual Indkx. 
 
 66 1 
 
 
 Pace 
 
 liijuuclioii — To picvciU imeifeitiicc wiili w.Uer power 243 
 
 Injiiiics-To s-ervaiils 38S Sot- CarriL-rs of rassLM>i;crs -Sec N\-t;lit;ci»ce. . 
 
 lo pnckaijos Jncustoily of railway Appcn.!. 150 
 
 To pcMSons, etc., on Ihc railway tracU -Sec Nei;IiKencc. 
 .> •• See I ariicrs. 
 
 Measure of (laniajies for 4*4 
 
 To cattle oii the track 3'/'. 4"3 
 
 a •' lueasiiie of ilanianes for 4.'<> 
 
 See Nej^ligence, 
 
 '• Iii>pL-ctiiiK Knuiiioer" -Meanini- of \p|Kncl. 2 
 
 Insijeclinu l:nt;iiK'er Information to lie afl'onleil to ■" '5 
 
 it •■ To bf conveycilliy coniiuiiy " '5 
 
 i< .. •rclt^jiapti oieralor to oliey liis orders. . . " '.i 
 
 i( •• I'ldof of his .iiitliority " "' 
 
 <i '• I'enalty lor olistnictint; " "' 
 
 Insiieclion of property of Coinpany-l'oucry of Railway Com 
 
 luittee as t 
 
 «« railway before oi)enint; " ''^ 
 
 « ii N((lice to Railway Commiltce before 
 
 "PonirK ;; y^ 
 
 <i •• Penalty for noncompliance " ''^ 
 
 (I I' Railway to lie insiKCtod " Vi 
 
 ti .. I'oslponement of opeiiinj; if r.porl is un- 
 favorable " W 
 
 << .• ptnaliy for openini; contrary to order. .. " 94 
 
 « .. Order not l/mdini- without copy of report " 94 
 
 railway out of repair •• • • ' 94 
 
 ,1 .. I'luceedini^s if part of railway is out of 
 
 repair " -''' 
 
 «< •• 1 )efect.s to Ik; made ^Oud " 94 
 
 14 »• If railway is out of repair at crossings 
 
 notice is to be given " 95 
 
 <i •• Proceedings thereafter " 95 
 
 (< .. Inspection and proceedings thereupon.. •' 96 
 
 ii ii Provision if company makes default .. .. " 9^ 
 
 i( i' Rtgulalion of speed of tiains '' 97 
 
 I. a •' penalty " 97 
 
 ,. '. Uunninj; of trains may be prohibited in 
 
 case of danger ' 97 
 
 «! " Penally " '-'^ 
 
 .' Report and action thereim " 9^ 
 
 " not to relieve company from liability.. ' '^9 
 
 Institutes under sub.stitution may convey lands 4° 
 
i 
 
 ( 
 
 I 
 
 iif 
 
 r I 
 
 ( ; 
 
 6^12 'I'lIK Rvn.WAY I. AW OK (1\S\\>\. 
 
 Intercit — On niiii> )>ai'l in slinrcs in ndvnncc 51, Aiipnid. \;, 
 
 •' On I oiicis, iK'liciitutt's at 114.95. •' 4; 
 
 " On L'iiu|iiins 1 1 { 
 
 «« On awaiil ISS, iSc. j 1 1 
 
 •• May Iti: paid un ciilnin --iinis i.;\iliil up in rcs|ptii if siiiirc- 
 
 Appt'iiil. ;o 
 
 •' No inltitst on sli:iirs ill aiicar ■' V' 
 
 " On .'inimnit p.ii<l into coiitt lumli'i s(i~. I');. 1701 3l.i, 215 
 
 Inlcrpnlalion A]ipcn<l. 1 
 
 IntcrH'Clion of iiiil«..;s muifi provincial liiaili'i- iO.\, Apprnd. M 
 
 '• with oilier railways Si. 2iy^ 
 
 International lloiimlary— b!xci('i>'e of | owi-r'^ l>t)ond .S.}. .Appciiii. .\o 
 
 Intokicali'in a nnsdiiMt anor " 1 ;o 
 
 " I't'iially for M ll.nn lii|Uoi to tinp!())i(.s " 1 ;(i 
 
 " In Tnisl " 41J 
 
 Iiitcisfctioii of railways 2()_^. Appi-iid. -u 
 
 " •' Approval of Kailwiiy t oinniiitef 2(i;,, ^(14 
 
 " '• 1 )itision tiii.il J()4 
 
 oflicir to lie iliiif -latioinMl 2'i ^ 
 
 Siriii lailway j6 ; 
 
 '• " 'I'lains to ^top .It joj 
 
 '• '• " ]iio\i>o j(>; 
 
 '• t!oii!-tiluiional (|iifstiiins a^ io .>{'4 
 
 •' " Powers of Railway L'oininiliic in rci^ard iM. j(,^, jo;^ 
 
 Kifiitnic to .'^upniiic ( D.nt 205 
 
 " '* Manitidia Kadway Ciossin^N ca^i' jij^ 
 
 •• Issiii- 1. 1 I'.onds " 11; 
 
 •' Jiidjif " — .Mi-anin^j of. '^< r Apiicnd. 2 
 
 Jiinciiin witli oilier lailways ."^i. .\]>pn;d. ;s 
 
 Jurisdiition (if ( 'inirts — Cause of action j^.S 
 
 Jury tiial — i^Uii'slions of iu'^;lij;fiici- 371) 
 
 •• |ustiii> '■ Mcaniiij; of \i |nnd. 3. (1 
 
 " Two Jiisticis •• ; 
 
 Justice of the I'eace — Juiiidiclion lo lu;ir and dicidc complaints 
 
 aj;a i list 1 a i Iway 5 . 6 
 
 Laborers — I lann of on siil)>idy of iad\\ay 111 rroviiu-f of 'Jiiehec. 
 
 Append. 1)7 
 Lands — 'I'llle to IIow .itltcud hy r.oncoinpli tioiwf \Mi1k.74. note (2) 
 
 •• •' Aw aid as a title 10 ji _• 
 
 " < 'onipeii'atioii for. dale from which to he aNCeitaiiied . 
 
 76, note I ~ ). see i>i/i ii 
 
 " I'll niise of sale acconi]ianitil hy possession 7S. note (2) 
 
 .Agreement hy dirtclors to purcha.se 7.S note (2) 
 
 I'nlawfiil uccupalioii of — Remedy of owner in (Juebec.79 note 
 
 V 
 
 ^ 
 
 ^u 
 
i 
 
 I, .mils-' 
 
 ti 
 
 1*1 
 
 Anai.vti. Ai, Inukx. 663 
 
 rA(;i. 
 
 ■I'owfrlo carry rnilway across 7" 
 
 Acciuivol from lliL- Crown or olhcrwiso, jiower I., soil. 
 
 «S. '37. AppciiM. 41 
 
 Sale ami !.yi'"lhcc.M.on of S5, 94 note r i ) ; ico 
 
 I'ower to alicn.ite '°'' 
 
 KinlUs of .IcUonture lioMers as I. lo j, 101. \\n>cw\. .J4 
 
 Rcsoivol for navnl or miliiary purposes ij,\ •' 47 
 
 lU'longint; to anollier railway '.^^. " 47 
 
 foiiinuls for i.iir.hasc of. K-fore (le|>os't of inai) or plan. 
 
 «.W- •■ ''4 
 
 I lS '* I" 
 
 Inilian re-er-e •> ' " 
 
 .\nmi;il rent '.V»' " ''S 
 
 Inclenial .l.-^n,ai;es to '.V) "ole ( ,v 
 
 I'etitory action l.VM.ote (.,) 
 
 who mav convey 14", Appc). 02 
 
 141) note ( \) 
 
 ol minor • 1 /■ 
 
 I'ower to convey limited in certain crso-i 141. Api-uMxl. O3 
 
 Title of company to '4'- ■" ^4 
 
 liispoMlioli of purchase money '1'. " "4 
 
 specific pel formance of coulr.at I4< '>o>e ( 1 > 
 
 Keclorv. in Ontario Minoled) 
 
 \,Meenienl with propri. tors, etc., after .leposit of plan. 
 
 143, .\p|ien<l. 65 
 
 Miy be taken without consent '43> '" 4^ 
 
 KxlrabmW '44. ;; 49 
 
 Occupying for construction purp )ses 144. S" 
 
 I'ower to re.ich materials for construction 45. " S2 
 
 purchase whole properly where better terms can be 
 
 secure.1 thereby '45- •" 5.? 
 
 ImnicduUe possession for materials required 45 ""'^ <•) 
 
 Taken without formalities required by the aet I3<) note (3) 
 
 145 "*"'•' (-) 
 
 Procedure in case of dis.^t;ieement '4 ' 
 
 Notice of expiopriatiou '-*"• 
 
 Comiiensation for value of • • • • 54 
 
 i. .. arbitrators, how to Ik; guuled in 
 
 making valuation '54 
 
 ,, .( increased value to remainder of hind 
 
 154, Append. 6() 
 „ I. lands injuriously alTecled by the 
 
 construction of the railway lOl 
 
 ,, I. access to land ways and waterways.. 
 
 162 note (I) ; 163, 164, 165, notes 178 
 ,, .' nature of damages that may be con- 
 sidered by arbitrators '73 
 
 4 
 
I I 
 
 664 
 
 'liiK Railwav I, aw ok (!anaua. 
 
 i; 
 
 1 1 
 
 / ; 
 
 liii 
 
 iH 
 
 Ijam 
 
 »- 
 
 -C 
 
 om|)cnsation for vn 
 
 t< 
 
 
 
 <t !• 
 
 u 
 
 
 
 <i « 
 
 u 
 
 
 
 i< •• 
 
 «l 
 
 
 
 « M 
 
 14 
 
 
 
 11 II 
 
 It 
 
 
 
 <• .1 
 
 « 
 
 
 
 
 M 
 « 
 
 II 
 
 loss of business 
 
 injury tu Inisinvss 
 
 loss (if privacy 
 
 injury to francliiscs and fcnics 
 
 " i-ascmenis 
 
 injury Ui trt-cs 
 
 a bar to all further claim 
 
 Desjstnu-nt from notice of c\()ro|)rintion l.Si.i ApjH-nil. 
 
 .>feanin(; of word See Ajij end. 
 
 J'owcr lo enter, for survey^, etc 75, " 
 
 " receive ijrants 'jf 77, '• 
 
 *' jairchiise and sell 7S, " 
 
 carry railway acro>s 79. 
 
 I'eclaration as to | owers with respect tu 137, 
 
 I'tiwer lo lake and use land and inateiials dclined and 
 
 limited 
 
 Vested in Iler Majesty 137, *' 
 
 for sin'cilic purposes 1^7, '• 
 
 Extent that may betaken 143, 
 
 exception '• 
 
 Extra land 14.) 
 
 Extra land lo In; shown on map or jilan 
 
 Public beach 137, 
 
 I'roceedings for obtainini,' extra land for certain pur- 
 poses 
 
 Application to the Minister 144, 
 
 Notice to owner and cerlilicaie to be transmitted to 
 
 Minister 144, 
 
 Minister may grant the application after en(|uiry 
 
 Deposit of copy of plan I44. •' 
 
 Powers of coni]iany on the granting of certificate. 144, 
 May be acquired for constructing or rejiairing rail- 
 way 144. 
 
 1 >eposit in such case 1 44 , 
 
 If the whole parcel of lanil can be |nirchasc<l with ail- 
 
 vantage 145. 
 
 Conveyance to t!ie company 140. 
 
 Order of judge in certain cases 140, 
 
 Limitation of powers in certain cases .141. 
 
 EtTect of sale 141. 
 
 Responsibility for purchase money 141, 
 
 Effect of contracts made before deposit of map. . ..139, 
 Fixed rent may be agreed upon in certain cases. ■ 139, 
 
 I'AiiK 
 
 •75 
 
 184 
 
 KS4 
 IS4 
 184 
 
 >«5 
 
 'SS 
 186 
 
 72 
 
 .? 
 
 }(> 
 
 37 
 .?7 
 .'7 
 •»i 
 
 46 
 
 •4r, 
 4,s 
 4S 
 
 4sS 
 49 
 
 49 
 40 
 
 50 
 5" 
 
 5" 
 
 53 
 
 "5 
 
 •'4 
 (34 
 
 ''4 
 
 65 
 
 g 
 
 1 
 
1 
 
 [ 
 
 Lands — 
 
 it 
 
 Analyiicai. Indkx. 
 
 Fixed rent— hen for the p^ymcnl llit-reof i.^M. Aj.pcn 
 
 After ten days from dcix.sit, application to owner. I4«), " 
 
 Arhilraiion in default of rtj;rce!nt:nt 146. 
 
 Dfposi' to Ik: j-cncial notice 
 
 Notice to tlio party, wl.at it shall contain 
 
 Certificat.' of surveyor, what it shall contain 14''. 
 
 ,>pplica'ion for sirvici' by ndvorlisement I47> 
 
 Ceililkalc ai^l atlidavit lo accompany api>l'<-'^'''"' • 'V ■ ' 
 
 41 " notice '47i 
 
 Party not acciptinu offer and not appointing arbitra- 
 tor '•»; ;; 
 
 Aiipointinenlof arbitrator '47> 
 
 Aibilrators to bs sworn '4<i 
 
 tlieii duties '4^. 
 
 Increased value of remaining lands to be coiisideied.. 
 
 •54. •• 
 
 Costs of arbitration by "horn payable 2oy, •• 
 
 Kxaininalion of witnesses '49- 
 
 1-videiice in arbitration to be taken ilown in writ- 
 ing '5'- •• 
 
 Transmission of itord in aibitratioii «5'. 
 
 Time within which award is lo be made 14!^. 
 
 Vacancy in oflice of arbitrator, how tilled 152. 
 
 no re-commencement of proceed- 
 
 ings '5^. " 
 
 Comi>any may desist from arbitration on payment of 
 
 costs '«9- ;; 
 
 t« new notice to 1)3 given '89> 
 
 Valuator or arbitrator not disqualilied unless pers-jii- 
 
 ally interested 'S^- "' 
 
 When disqualitication must bo urged 152. 
 
 Award not void for want of form 
 
 '< fi)rm of 
 
 Appeal from award lo a Superior Court 1^4. 
 
 When payment or lender of sum awarded, possession 
 
 may bj taken 
 
 Warrant of possession 
 
 t. • before award 2l6. 
 
 „ II i« conditions .,..216, " 
 
 ., It " security 210, 
 
 .1 '• costs of proceedings 
 
 Compensation to stand in place of 213. 
 
 ' • payment into Court in certain cases . . 
 Confirmation of title ^'3- 
 
 665 
 
 I'A' > 
 
 I. ..J 
 
 66 
 
 '<(> 
 "7 
 <^7 
 
 (>S 
 (.S 
 
 hn 
 
 70 
 70 
 
 70 
 7c 
 71 
 
 7« 
 
 71 
 72 
 
 72 
 
 ' 3 
 73 
 
 74 
 
 74 
 73 
 75 
 75 
 7" 
 7^' 
 7" 
 77 
 
ri 
 
 V 1 
 
 I' I 
 
 'M 
 
 I 1 
 
 if ! 
 
 €66 
 
 TnK Railway Law ok Canada. 
 
 M 11 
 
 i li ! 
 
 I.niiils — Coiifirmation of title — luocecdint;-; in (Jueliec Apiiend 
 
 " " .pecial notice in siicli c.im's A|i|)en(l. 77, 
 
 " ■• distribution of compcnsition. .215. " 77. 
 
 '• ♦' costs, interest 215, '• 7H, 
 
 " Kenuireil for highway crossings umler (hrcction of 
 
 Railway Committee Vjipend. 
 
 " Award as a title to 
 
 '■ Subsequent piirciiaser, ri^dit to damnjje' for construction 
 
 '• See also Arbitration. Arbitrators. 
 Latent defects — Set' Carriers of I'assengers. 
 
 ' ' Lease " — Meaninfj of word .\piiend . 
 
 1 .case of line - Kilcct of upon liability for accidents 260, 
 
 Liability of Carriers. — See Carriers. 
 
 " memlK'rs of corporation 
 
 *• Li.?bilities '' — >reaning of word 
 
 Lil)el — Liability of company for 
 
 Lien on railway — Power to give 
 
 ' ' of unpaid vendor 
 
 " upon goods for freight charges 
 
 '• •• nature of 290. <•/ f'V. 
 
 " " general 
 
 Limitation of iction for damages 266, 362. Append. 
 
 " loss of bagg.ige 
 
 " meaning of words " by reason of the railway ''.... 
 Limiting liability — See Carriers of Goods. 
 
 '' Passengers. 
 
 •' •• "■ liatigage. 
 
 Line — Charge in location of, Railway Committee 79, Append. 
 
 ISrancli 8u. 
 
 '• Location of, powers of Railway Committee '• 
 
 •' Use of 
 
 ■• NValking on —See track. 
 
 Mail Carrier — Injury to 
 
 Mails — Cariiage of Append. 
 
 Majority — Powers of 
 
 M.inager • ■ 
 
 '• " to |)ay for surgical atteiuiance 
 
 '• Liabdity for manslaughter 
 
 Mandamus as a lemedy to compel new election of directors 
 
 '* '' calling of meeting 
 
 to compel transfer of shares 
 
 •' company to perform statutory obligation 
 
 Manslaughter — Liability of officers for 
 
 >( 
 
 P.UiK. 
 
 • 78 
 70 
 
 7" 
 79 
 
 2\2 
 
 -'44 
 
 395 
 
 12 
 
 70 
 
 28 
 
 loo 
 
 106 
 
 290 
 
 1 28 
 
 362 
 266 
 
 10 
 10 
 II 
 II 
 
 329 
 118 
 
 12 
 
 26 
 
 27 
 28 
 
 15 
 
 '9 
 
 47 
 
 259 
 
 28 
 
 J 
 
 
 r 
 
 j 
 
 
 
 '1 
 
i 
 
 1^ 
 
 Anai.viic.m. In-I)kx. 667 
 
 M.ip-. ami jilaiis 1^' ' ' ^ 
 
 •• meaninuof Ai'pi'iid. 
 
 •• See rians. 
 
 Mailer and Servant -Net;li«^'"=^ •'' 
 
 .1 < ' / ■('/('////■ ;/('// /// injuria 39 ' 
 
 .' Special provision for luolectiiin of employees. . . :,i»4 
 
 Materials for constniciion of railway —Power to take- . . . . 141. Appen<l. 5- 
 
 Measure of damages 't 
 
 inireneral 4>f» 
 
 (» •• contract of carriage of goods 4''^ 
 
 .. •• breach of contract 4- ' 
 
 « •« iniuries to persons 4^4 
 
 catll.' 4^'' 
 
 .,,..,. 106 
 
 Mechanic s hen 
 
 Meeting of shareh.;lder>-Notice of '.V Append. 17 
 
 Meetings— Annual and special ''j' 
 
 Notice of '^- ■' ^\ 
 
 I'roof of proceeding- at '<J- " ^^ 
 
 '• Copies of minutes to be evidence "' 9^ 
 
 IJy whom called I (. and note (3, 
 
 Irregularity of, etfecl of '"• '• 
 
 '• Interference of Court '"' '-^ 
 
 " Special and general 
 
 ... , ' 18 
 
 Adjourned 
 
 '• or diiei:tors. notice of "' 
 
 What business may he transacted at i ''• Apiiend. 2 1 
 
 Majority to govern '6. '' ^^ 
 
 " Notice by Secretary valid " ^^ 
 
 Military forces— Carriage of • ' "' 
 
 Lands '3^- " 47 
 
 Mines -Expropri rlion " 
 
 To be protected Append. 54 
 
 .. InOntario Append. 54. S''' 
 
 Minor-Alienation of lands of '40, "ote (3) 
 
 " Minister -'—Meaning of Append. 3 
 
 Mischief on Railways— Ciiminal Law " '55 
 
 Municipal Corp naiions-Holding stoci I5- Api'end. i,S, 19 
 
 << Subscription to shares 15 note (5) 
 
 ,j i< Ae;ion by, for removal of obstructions. 
 
 .S2 note (2) 
 
 I, «< IJonuscs 90, 91,92 notes 
 
 (( «« Liability of. for railways interfering with 
 
 highways 164 notes 
 
 <c « Rights of, as to highways 246 c/ S(;<!. 
 
ill 
 
 •i! 
 
 668 
 
 TiiK Railway 1-a\v ok Canada. 
 
 J 
 
 I" 
 1:1 
 
 I:' 
 
 ! I 
 
 I' I 
 
 !'( 
 
 ( 1 
 
 M 
 
 J'AGK 
 
 M.>itgaye — Of lands as scciiriiy fur buiuU. clc. (Sci- Honl«). 
 
 94, Appcml. 44 
 
 •' I'ower to nuirlgage lamls yj 
 
 " Of franchise lOO 
 
 " Distinction botwecu llypotliec and 122 
 
 •' lncuml)ianccr. lights of -214 
 
 Dofil — I'cnaltitsand working cxjcnsesto be a first cliarge.. 
 
 95, Ajijiend. 44 
 " '• Validity of '• 44 
 
 Deposit iif " 44 
 
 Moilgagtes— Rights of 95, 103. (See Receivers). 
 
 " .See liondiiohlers. 
 
 " Rights of, to earnings id 
 
 '• •■ afier acquired proiicrty 106 
 
 *' Renicilies of 142 
 
 Moveables- i\ol ling stock wliellier 107 ct .f<y. 
 
 Naval or military lands 13S Ap|iend, 47 
 
 '• '• foi'Cc', cairiago of , '• llS 
 
 Navigable rivers — Navigation of, nut to b; impeded 244 •' S2 
 
 '■ " Access to ol)structed 182 1.S3 
 
 '• liridges over .AppenM. ,S2 
 
 " '• •■ to be (looreil " S2 
 
 " •' ' • i>lans to Ije approve 1 •• 82 
 
 ■' " •' substitution of one form for 
 
 antither '• S3 
 
 " waters— Construction of works in, powers of Rail- 
 way Committee 
 
 " " Navigation not to be ini])tded 244. 
 
 '" Near " meaning of '■ 
 
 Negligence or the omission of the comjiany or its servants. ... •' 
 
 •' of contractors — I.ial)ility for " 
 
 " Limitation 1 liability for negligence as carriers 296 342 
 
 " " •• generally, as carriers 302 
 
 " as carriers — See farriers. 
 
 " Rule as to, in the provinces, other than Quebec ^63 
 
 '• Illustrations of remote negligence 364, 409 ti st-,j . 
 
 Subsequently developed injuries ^6c 
 
 Act of God 365 
 
 Acts of agents ami servants -^fi- 
 
 Non-]ierformance of statutory duty ^66 
 
 Contiibuioiy negligence , 368, 371 
 
 Injuries received while avoiding danger and inconveniences. 
 
 368 
 
 It 
 
 82 
 
 III 
 234 
 
 
 t 
 
 1 
 
\ 
 
 
 t 
 
 (I 
 
 1 
 
 ANAI.YTICAI. iNUEX. 
 
 669 
 
 (I 
 
 CI 
 
 II 
 (( 
 
 It 
 
 Pack 
 
 .69 
 ■ 3*'9 
 
 51'- 
 
 7S 
 
 Negligence— Children, etc 
 
 Neglit;ence of parents 
 
 Intoxication 
 
 liurtkn of proof 
 
 Trcsuniption ol ncgliBciicc 
 
 Ihe Court and the jury 
 
 The law of nci;liKence in the province of (,)utl>ec .... 
 Injuries to persons on ihc railway track 
 
 l-ars allowed to stand for unreasonalde li.ne upon crossing. .V^, 
 
 Injuries to employees ^^^^ 
 
 Investigating accidents -^ 
 
 Cattle killed or injured on the r.-iilway 
 
 >' burden of proof 
 
 Cattle at lari;e on the hijdiwav 
 
 1 )amagc by fire 
 
 evidence in such cases ■ 
 
 rule in I )uebec as to danvige by fire. .. 
 
 II 
 
 (I 
 
 Net profits— What are 
 Notes given by company- 
 
 Transferee for vaUie. 
 
 402 
 
 4"3 
 +07 
 4'.i 
 414 
 
 ■it 
 oO 
 
 in payment of c-iUs on shares ^^^ 
 
 u 
 t( 
 (I 
 « 
 
 C( 
 
 Notice— Constructive 
 
 " of conditions on tickets, etc 
 
 " of calls 
 
 .< to trustees under mortgage deed 
 
 " of expropriati jn 
 
 of desislment from arbitration 
 
 of first meeting of shareholders 
 
 of meetings 
 
 of branch line 
 
 by secretary valid 
 
 Nuisance ,"•'".,. 
 
 Oaths-Power of Railway Committee to adm.niste. 
 
 Obstructing the construction or use of any railway 
 
 Offences and penalties-Liability of company m cases specified 
 
 l)amai;es for extorlioiiiite toll 
 
 Penalty for placing baggage cars in 
 
 rear of passenger cars 
 
 ,, Intoxication a misdemeanor 
 
 „ Penalty for selling liquors to em- 
 ployees 
 
 ,, Punishment for violation of certain 
 l)y-laws 
 
 34:v 
 
 04, Append. 
 
 146, .\ppend. 
 180, 
 16, " 
 
 .82. note (2) 
 , . . . Append. 
 
 3"i 
 82 
 
 120 
 
 66 
 
 72 
 
 iS 
 
 21 
 56 
 
 12 
 
 •55 
 129 
 
 130 
 
 '30 
 '3» 
 
 130 
 
(tyo 
 
 The Railway I, aw ok (Ianada. 
 
 I'A'IK 
 
 \ 
 
 w 
 
 i i 
 I '■ 
 
 i t 
 
 s el 
 "III 
 
 \ \ 
 
 ' ;i 
 
 
 
 Ulkiices anil periiiltius — If iiijiiy is cuim;.! oi l•i^k of injiiy 
 
 is iiiciease'l \pfifii'l. 131 
 
 •• Penally limited '■ 13 ' 
 
 Deiluclion of pcn.ilty fiiiiu wayes. . . . •• 131 
 Penalty for viol.itii)n nf \>y laws t,'en- 
 
 orally " 13I 
 
 Exception " 131 
 
 Punisliment of pi;i^ in> cutiin:; or 
 
 boring casks or iiackaj^es " I3I 
 
 '* 1 )riiikinj; an<l w^..->liny liquor " 132 
 
 " " '• penally '• 132 
 
 OlVices of company 12 and no e (4), " 17 
 
 (ifficers — See President. Manager, Agents. 
 
 " Disabilities of 22 
 
 '• Powers anil duties of 26 
 
 '• Liability for manslaughter 28 
 
 < ' To lie appointed by directors Api)end. 26 
 
 Oil cups 394- " '"J 
 
 Opening of the railway — Notice to Railway Committte be- 
 fore r, ad is opened 270. •• 92 
 
 " Penally for non-compliance. ... 270, " 92 
 
 Railway to be inspectiil 270. '• 93 
 
 Postponement ofoiiening if lejjo.tis 
 
 unfavorable 270, " 93 
 
 Penalty for opening contrary to order •• 94 
 " order not binding without 
 
 repoit 271. •' 94 
 
 Company not liable as common carrier be- 
 fore opening — when 272 
 
 Operation of the railway 270 
 
 Opposition ti/in dc disliaiii — ('rounds of. 79 note 
 
 •• Owner " — Meaning of word 142. -Vppend. 3 
 
 •• Packing "—Meaning of '" 116 
 
 offiogp, etc 394- ■' I '6 
 
 •' of wing and guard rails 394, " IK' 
 
 •• " proviso 39). " 1 16 
 
 P;iiil-up stock — Issue of 68, S7 note, 88 note 
 
 J'assengers — Power to carry anil lix tolls for carriage of.. . .84, Append 40 
 
 " Conveyance of 322, " no 
 
 " Right of .action in case of neglect. . " 1 1 1 
 
 '• Payment of fare 282, '• 1 1 1 
 
 " Refusing to pay fare, expulsion 283, '• ill 
 
 ^' Injury to, while standing on platform, etc.. 330. ■• 111 
 
 « 
 
 
 t 
 
 r 
 
\ 
 
 An.m.yiical Inuex. 67' 
 
 I'AC.K 
 
 ,. . iSi'i 
 Tassens^eis Tkket^ ismil-.I on ■ ondiiions 
 
 «i Coiiiifins tickets ' 
 
 .« Kigliis . f hi.Mcrs as 10 the seveiol lines ^^^7 
 
 <« Measure of (laniages in case of expulsion 2H9 
 
 " ()ljli(;alioii to carry ^'^- 
 
 '■' See Carrifv^ of I'asstr.geis. 
 
 liii^'gaye— See Carriers of insstii^jers' liagga(;f. 
 I'cnally— Wlitn nnts an 1 lovcnnc^ a UvA charge for paynioni 
 
 ,_,f. 'JS- Aprend. 14 
 
 lor ol'slnicting insjieciinn tnt;iueir " ''' 
 
 I'enallies imi-o^e.lby Railway Conimitlee •' '° 
 
 >' See OtTi nets anil rena'.ties. 
 
 I'ersonal bapgage.— See Carriers of |.as-,engers' t>ii;i;nge. 
 
 1 v. »ote ( '1) 
 
 I'cUtory action J- ' - -" 
 
 rian-See also Map and '.ian. 
 
 ■ f 70. Ai'iienil, SS 
 
 |)tl>osU()f ' '' 
 
 N„ti.eor "•'• •■ ^5 
 
 «• Concttion of errors oroniisMons /"'• 
 
 '• Alterations ni " " 
 
 .' ConsUiicti,:n not to be i.toceedcl xvitl. until plan made and dr- 
 
 •. 1 ... .77. .■\l>l)end. Ill 
 ooeilnl ' ' ' ' 
 
 Access to copits -' 
 
 I eitilkd copies to lie esidence ■'■" 
 
 Certificate lelaling tlieicto 
 
 • • (u^K.dyof epic, l.y legi.lrar of deeds " " 
 
 c- ,\ niai. or pl.ii of iKe o.niplcted railway to be filed .it 
 
 . . . ** ''>2 
 
 the IVpartnuiil 
 
 " (i2 
 
 " penalty for. e-l..l ^^ ^^^ 
 
 Scale and paper ^ 
 
 I'lansand surx.ys ' ■'" _ ;'^ 
 
 K siu vi-vs and levels -"'' 
 
 ,.l,.,l,.c-l )i-tinclion between, and .leposit as collateral security no 
 
 I'olic'e regulations-statutory regulations when regaukd as 257 
 
 Towers ve>te<l in corporation. 
 
 .< ofconipanvmav be icvived iiy Legi-lature 74 
 
 , ■ 73, Append. 3f> 
 
 " general ' ■^ '' 
 
 «' cMraoidinaiy • '' 
 
 „ o,,v,v 75. Append. 36 
 
 Mails and plans '-'' •' 
 
 -C, 11 eg 
 
 " Deposit of plan ' ' ^^ ^ 
 
 «' Notice of deposit of plan 76, ''^ >5 
 
 " corrections of errors and omissions 76, 
 
 " lo receive gifts and bonuses 77> ' 37 
 
 '< To purchase, take and sell land 7^. " 37 
 
67: 
 
 TiiK Ram. WAV Law of (.'anada. 
 
 
 
 
 
 I- ft 
 
 V.M-.h 
 
 I'uwers To cany lailway across l.iiiils 79, A|)pcnd. 37 
 
 •' Ucviatiun, etc., (if line 79, " 53 
 
 liinnci) lines So, " 56 
 
 " To fell trees acicjss railway 81, " 3S 
 
 To construct woiks oi\, across or under railways, streams^ 
 
 liigliways, etc Si, Append. 3S 
 
 '' To niaki- sidinj{s, etc " 52 
 
 To cross, unite, etc., with other railways 81. " 38 
 
 "' To divert streams and lii^;li\vays S2, " 39 
 
 •' To maintain and repair lailway •' 52 
 
 "• To inlcifere Willi elictiic liglit wires or poles. .. .83, '• 39 
 
 v " jjas pipes S3, ' ' 39 
 
 " *' telephone pules or wires 83, " 39 
 
 '• To work railway by any mechanical jiower, etc.. .84, " 39 
 
 To erect huildinj^-. 84, '• 39 
 
 Jo carry passeiiL,'! rs and fix tolls, etc 84, •■ 40 
 
 '■ To employ particular c liters 84 note (6) 
 
 " To exercise powers beyond boundary line 84, Append. 40 
 
 " To sell lands ac(j;iiied from the Crnwn or otherwi.-c. 85, " 41 
 
 " To issue hills and notes 91, " ^U 
 
 " bonds an<l debentures 94, " 42 
 
 " To borrow and mortgage 97, " 42 
 
 To give lien on railway and alienate lands luo 
 
 ' • To alienate franchise loi 
 
 To take mateiial for construction 144,145, Appenl. 52 
 
 " Notice ill case of arbitration 145, " 52 
 
 May be exercistd inlhe I'nited , States 84, " .0 
 
 •' See Lands. 
 
 I'referred stock 8S 
 
 I'resident — Election of 20, Append. 24 
 
 •' Powers of 20 
 
 '• Taking a mortgage for the comiiany 21 note (2) 
 
 " Not always agent of company 21 note (2) 
 
 Absence of at meetings may beeiiteicd in minutes, Append. 27 
 Prescription — See Limitation of actions. 
 Privilege — See Lien. 
 
 Privileged claim fcr annual leiit 139, Appeiul. 65 
 
 Promissoiy note and bills — Power to issue 91 , " ^0 
 
 I'lovisional directors and their powers and duties 13, " ly 
 
 Provincial legislation may bo confirmed y. " i ',0 
 
 Publi: iK-ach — Right to occupy 137, " 46 
 
 Punishments — See Offences and Penalties, 
 
 tjucliec Railway Act amendments \ppend. 146 
 
 (Juo warranto — \\ hen it lies i c 
 
 ' 
 
 V 
 
 
 •a 
 1 
 
 
 'V 
 
Anaiaticai. Inukx. 
 
 <J73 
 
 I'A(.l 
 
 17, .\i)pcnil. 25 
 
 ' 
 
 Ouoriim , ,„„ 
 
 How Mteclcl wlien amalgamation with another company . . . . 
 
 note (1)17 
 109 
 
 97-9'J 
 
 394- 3V5, 39^' 
 
 Rails— Sci/.uie ol by creditors of railway 
 
 .i <• mortfjagees 
 
 Railway Accident Act of Ontario ■ • • ' 
 
 Railway Act, i88X (l)om.)-Sce Constitutional Questions^. 
 
 i> " text 
 
 «< sec. 306, effect of 
 
 Application of 4, -M-pen-l 
 
 " Sections wliich may be made ap- 
 plicable to any railway williin 
 the Ic^^islalivc authority of I'ar- 
 liament S- 
 
 « 
 « 
 
 See appendix 1145 
 9 
 
 « Railway"— Mciininy of 
 t« Operation of 
 
 #••••• 
 
 « 
 
 <( 
 
 « 
 
 (< 
 (( 
 <i 
 ti 
 
 (( 
 
 X 
 
 ,2-1. Api)end 
 
 Opening for trntiic 
 
 Outofrepair ^{ 
 
 Company not liable as carriers before opening the Ime 
 
 for irafric— when '* *■,"." " 
 
 Committee's ju.i.diction exclusive in matle<s of tralhc 
 
 agreements 
 
 Comniiltee'^ jurisdiction over highways •••• 
 
 Obligation t., carry goods and passengers.-See Carries. 
 
 Seizure and sale of >o>' ArPend. .24147 
 
 Sale of subsidiz';d 
 
 Obstructing ami interrupting free use "f 
 
 The franchise: ^' 
 
 Who may construct and operate ' 
 
 II, Append. 
 
 Incorporation '' 
 
 » jurisdiction of Provincial Legislature and 
 
 Dominion Parliament 
 
 <• constitutional cpiesticns 
 
 , 4, Append. 
 
 Purchase of. ... ^' " 
 
 Charter, preference for 1 )ominion 
 
 Construction of 
 
 Limitation of time for commencement 
 
 and completion 73. Append. 
 
 « Effect upon company or charter through 
 
 delay in • 
 
 Partial 74 "ote^^) 
 
 ^,> ...... cancellation by Lieutenant-Governor 
 
 M'a'v'be worked by any mechanical power or elec- 
 
 S4, Append. 
 
 9 
 4 
 
 270 
 270 
 
 94 
 
 Charter, 
 ly be 
 iricity ■ 
 
 2S1 
 
 245 
 
 '51 
 I4^j 
 
 3S., 
 I 
 
 3 
 16 
 
 2-4 
 4 
 
 124 
 10 
 
 21S 
 
 3f> 
 74 
 74 
 39 
 
 
674 
 
 'I'liK Railway I,\\v ok Canada. 
 
 I;! 
 
 ii! 
 
 r.\'.\-. 
 
 
 •I 
 
 K 
 II 
 
 Kailway — !iis|)ection of — See liis|)L'tliiiii. 
 " OpuTiint; of— Sec Inspection. 
 
 Uepnirs — See Inspection of iniKv.iy out ol'ivpnii . 
 
 Woilsinj; of — See Woikinf^ of Kailway-, 
 
 Which are ileclaii'd woiks for the general aiiv.iiUa^e of 
 
 Canatia .\|iptii>l. I.V> 
 
 To lieyulijeet lo legislative authority of parlianuiit "' 136 
 
 Certain acts of I'ro\inci;il I.iLjislature may lie 
 
 confirmed •' 136 
 
 " F.lfect of such coiillrniation " I3'> 
 
 Railway companies cannot ])urcliase '.heir i>\vn slocU ih. Apiend. 123 
 
 •-^ee Company. 
 
 " Railway Coniiuillee " — Meaniii;^ of Ajipeuil. 4 
 
 Of whom conti'ts " 9 
 
 Secretaty •' 10 
 
 Powers Append. 10-15 
 
 Decision of may lie made older of ( 'ourt Append. 13 
 
 Decision of may be reviewed " I3 
 
 " Cnses may be stated for opinion of 
 
 Supreme Court " 
 
 " I lecision of linal " 
 
 •' •• opinai to ( lovernor in. 
 
 Council '• 
 
 " Costs of prcceedinys iiefore 
 
 " I'romuljjation of order of " 
 
 •' rulilicatioii of oiilcrs and deri>ions 
 
 of " 
 
 " Authorization or;i> to crossing, etc. 
 
 liigli^ay^ 245- -53 
 
 Juris-diction e.\clii>ivc in matters of tralYic 
 
 a;;r.-eMu;iits 2.S1 
 
 Jul ii-diL'tioii in matti IS of jiij^lnvays 2)5 
 
 Railway Constable — See Con.-itaMe. 
 
 Raising money 116 
 
 Rates— See Toll-. 
 
 Ratification 33 
 
 ' ' of acts of olikeis 21 
 
 Receivers — Appointment i 25 
 
 •' ijiiebec Law 120, Append. 147 
 
 " Louisiana 128 
 
 " France 1 29 
 
 " Ontario , 120 
 
 '• As to tramways or street railways 130 luteCsi 
 
 '• In what casesappointnient will be made 131 
 
 ' j 
 •3 
 
 13 
 '4 
 '4 
 
 14 
 
 
 ^ 
 
An \i,\rii Ai. Im'IX. 675 
 
 k' ciivii^ - I >iilie^ aivl ]iiiuiT^ Ij^ 
 
 ♦' 1 )ivisu)n III iiu'DMn- I .V> 
 
 •' I'xirnnrilinaiy I'litl.iv 135 
 
 " Payment dfrij^'it of way 1.^5 
 
 '• Siilisi.li/i-il Kailuaysiii 1 UicIhh' Xppciid I47 
 
 Kciiintc ik-(^li^ciKV -llhisiraiioiK nf .V'l. t''9 ''' ''7- 
 
 ki'iits and revcnuus— ^\■hcn liisi cl;ary<' for |iavnicnt nf pcnilly ; 115. 
 
 Api>en(l 14 
 
 l\i'|inii— Railway out of 27 1 
 
 Kcjipiis — Soo ins|ifction of railway out ofrcjinir. 
 
 kopoMs may bfonlciod I0 lie niaik.' liy Railway Comnnllci'. . . Ajipiiid. II 
 
 kiMuins— Sec Statistics. 
 
 •' {••(.rni of Xi.prnd. ijS ,■! s,;/. 
 
 Iscvendicalioii by |)ondli(ildiTs 1 20 
 
 ki^l.t of way— Rowers of kailway Committee with rft;ard to.. Append. lu 
 
 •• ' — Sei' Kminent 1 'oniaiii 
 
 Riparian proprietors — See Lands. 
 
 Kivers— Rower to divcit ><-'. Append. ;,9 
 
 Access to — Iiikrference with i-^'. ''"^S 
 
 " See Navif;able Rivers. 
 
 koilin;,' stock — Wlietlier realty or moveables 107 
 
 kif^lils of bondholders with regard U 06 note (1). 107 
 
 Roads— See Highways. 
 
 Rules and rct,ndatioiis— See I'.y Inws, Rules am! Re^;ii!aliun>. 
 
 Sale of land aeipiired from tlic Crown and otherwist' S5, .Append. 41 
 
 I'rfimise of. followed by possession 7S note (2) 
 
 Sale and ]i'edt.e oi lionds and debenture^ '>4 
 
 Sale of unclaimed ^''ods 2'jo, Append. lo-S 
 
 >■ A]iiilicalion of proceeds 21,0, •• 106 
 
 " Disjiosal ol unclaimed balance. 290, '• lofi 
 
 Sale of goods in default of i>a\nHMn of tnli 290, '• I06 
 
 Sale of railway.... "■^' 
 
 To purcliasers not having necessary corporate jniwers. . . 
 
 .'\pi>end. 174 
 
 '< Xolice to the Mini<-ler " 124 
 
 <. '« .And copy of deed of conveyance " 124 
 
 II '< Until such transmission trains 
 
 not to be run " '24 
 
 u '< Provisional operation of railway " 174 
 
 II " License from Minister " 124 
 
 II " Apiilicationfornecessary powers " 125 
 
 «• " Extension of liceui-e '' '25 
 
 II •' I'inal action " '25 
 
 For debt, whtu- >ulisidi/ed in Piovince (,f < Hie 
 bcc " ''^6 
 
 cc 
 
 JL 
 
ir 
 
 
 I" 
 
 I;! 
 ;;' 
 
 ! I 
 
 i:! 
 
 I'l 
 l;' 
 :■• 
 
 1' ' 
 
 1' > 
 I. ' 
 1 1 
 
 676 
 
 Tmi: Railway I, aw ok Canada. 
 
 I'AGI. 
 
 SlmI — Necessity for in coi|>oiale coiilracls 218 
 
 Secretary — 1 )i.'.al'ililic- of 22 
 
 " I'liwcr to :icccpl ilrafls 27 
 
 Securities of otlier railway compaiiif not to l)e 1 iircliascil by rail- 
 way coi)i]ianics i(i, Appeiui. 123 
 
 '• Kxcejitions •• 123 
 
 Sfi/urc of railway- Iu2 
 
 in tjiiclicc io2, .'vpiciul. 147 
 
 ScMiiic.-tratur, appoiiitinciU )f ill iJULhco I2»). 120, " I47 
 
 Louisiana 12S 
 
 '■ '* I'lancc I Jy 
 
 Se(iiicslration of Mil)siili/,i:il lailways in Province of <jiiLliec, ,. Appeml, 147 
 ' ' Sci- Receiver. 
 
 Servants to wear bailj;es •• III 
 
 Sewer pi[ es — I'ower of Railway Coinmillic to iiili'ifire with 
 
 disputes concerning; •■ 1 1 • 1 2 
 
 Sliareholders— Liability of '2, S'. " 35 
 
 Lii.-t meeting of 13, " 17 
 
 *' Notice of '• 18 
 
 \utes of 14, " 21 
 
 " Rifilit to injunction to forbiil nieetini; 10 iioIl- {(>) 
 
 " Actions l>y creditors aj^ainsl 51 
 
 '• " I'si-cuiion against tiic company . . 52 
 
 " •• Wlieic it arises 52 
 
 '• " How action should he com- 
 menced 53 
 
 53 
 54 
 
 I'efence of payment . 
 
 C'essali<in of cidiipaiiy . . 
 iioii-iiei foi mance of con 
 
 (litions , 
 
 regularities in orj^ani/- 
 iil'o" 55. <'3>i^'tc (4) 
 
 shares reinilled to Co. . 
 
 5■^ 
 
 56 
 
 slKiie.s aci^iiirei 
 
 d as 
 
 d 
 
 56 
 
 up 56, ()S note (4; 
 No notice o[ allotment. 
 Never a shareholder... 56 
 C'lianije of ca|)ital 57 
 
 Diir 
 
 erince 
 
 hetw 
 
 Cell 
 
 nieiMO. ol association 
 
 and prospectus 57 
 
 5S 
 
 L/:, 
 
 Fraudulent nusrepre- 
 
 sentation . 
 
 5S 
 
 5S 
 
 Agency 59 
 
 Forteiluie. 
 
 f 
 
 t 
 
i 
 
 AnaI.VTICAI. TNr.FY 
 
 147 
 147 
 
 147 
 
 I II 
 
 >7 
 
 18 
 
 at 
 
 51 
 52 
 52 
 
 5.^ 
 53 
 54 
 
 54 
 
 56 
 
 56 
 56 
 57 
 
 57 
 5« 
 
 58 
 5S 
 59 
 
 
 r,77 
 
 I'.v.i: 
 
 59 
 59 
 59 
 r.o 
 
 O'l 
 
 20 
 21 
 21 
 22 
 
 33 
 36 
 
 36 
 116 
 
 •7 
 
 35 
 37 
 
 38 
 
 Sliaicholilers — Action l>y creditors-- defence — Trnn'ifi'r 
 
 " " " lll'fcCtlVl- MTvicc 
 
 " •< " Noconliact 
 
 " '•• " Set-ofT 
 
 " Position of with ic^.nd in liot dlioldcrs 
 
 " Mti'iin^'^, annual ami s|in.i.il ^(', Ai'i'ind, 
 
 " Votrs on sliari'S I4> " 
 
 '' May vi'le liy inoxy I5, 
 
 ' ' Majority to jjovcvn i''. " 
 
 " IVnalty for rcfiif^nl to pav lalls 60, " 
 
 " AliiMis to have eijiial rinliis " 
 
 ' • Record of '* 
 
 " interpretation of woi d 
 
 " See Calls 
 
 Shares— To be $100 ea-Ji i.?, Appem 
 
 " Subsciiption to before orgaiii.'ation 
 
 " " after " 
 
 " " Difference between i:nj;lisli system and that 
 
 in vogue in this country 
 
 '• " Entering anxnint subn-ribed without eon- 
 sent of sub-ciibers 39 note (4) 
 
 '< '< Conditional 40. ,S4 
 
 <t '• Tayment in services and fUlipHes 41 
 
 When repiiiHalion too late 4' 
 
 Special 4 ' 
 
 Other cases 41 
 
 " Effect of statutory change 4! 
 
 Tiansfer, formalities 42, Append. 31 
 
 " '• When complete 42 
 
 " •• Form of )2, Append. 31 
 
 •' •• " as to paid up shares " 3 1 
 
 " " Right to 12 
 
 " •' i;vi<lence of 42 note (2) 
 
 " '• W'ith object of reducinj; capital stock, void 43 
 
 ' ' •' May be made to pauper 43 
 
 .« •• " to insolvent 44 note (6) 
 
 '< •■ Fraudulent, liability of company for 46 
 
 '< " Measure of damages for nej^lect to 46 
 
 << •' Mandamus to C(jmpel 47 
 
 " Tiansmission otherwise than by transfer 48, Append. 32 
 
 <t '< Wills, notarial co]iy 48 
 
 «< " " ])robale 48 
 
 '« Transfer of shares held in trust A^> Append . 32 
 
 << <' Meaning of ''in trust" 49 
 
 (I 
 >( 
 
 ■\i' 
 
1 
 
 'I 
 
 h > 
 
 t > 
 
 i ! 
 
 678 
 
 I'm Kaii.w.w I.vu .)|- ('.\n\ii\. 
 
 I'Ai-.K 
 
 II 
 
 11 
 
 u 
 
 •1 
 
 n 
 
 II 
 
 II 
 
 II 
 
 1) 
 
 It 
 
 «< 
 
 II 
 
 SliaicM— TraiiirLT of >li.iic> holil 111 llll^t— W.uil ul' .uitlinity nr p.uvL-r in 
 
 llic iiiiii>fci')r 50 
 
 " " SiifccK«iiiii ilui> iiii|iaiil 5<i 
 
 " liitL-i'tsi (III Minis pniil III udvnncL' 51, A|i|jciiiI. ,;5 
 
 '• I'drffilufi' cuiiiulative lu all utlicr remedies which crcihlors 
 
 eniillt"! to 6;, 
 
 F(ir non-iPiiyiiieiu of calls <i6, A|i|iciul, j.( 
 
 I'oniialities fir declariiij; . . .()6, (17 notes (I), (2) 
 
 Not sole ifiiii'ly for iii n |i.iyiiieiil of calls 
 
 06 note (3J 
 
 Wlieic sliaivlioldLis ileceased Oh note (3) 
 
 Kffcct of ,.,.(>-, Ajipend. ,^ \ 
 
 (,'annol lie ii-e 1 |o iflirve >liaielioldci ■- from 
 
 lialiilily (17 
 
 " I''orfeiled --sale and pledge of 67 note [}), Aii|itiid .; t 
 
 Cerlilicatc of 'Ireasiiici- to he evJiieiiC'.' of forfeiture 
 
 and title of 11111 chaser " ;4 
 
 " I'nissuid. sale of oS 
 
 '' •' ,U iliscoinit ()S 
 
 '* I'aid U|), issue of <)S 
 
 • ' I'lefertlice SS 
 
 "■ l''iilly paid ii|i, at;ieeiiieMl lo |iay in .S7 iKJte (^) 
 
 I'aid uj) S7, iSiS note, 
 
 Voles on I.}, .\|i| end. 21 
 
 " I'eisonal propel ly " ;.! 
 
 '• Cerlilicate of pioprietorsliip to be evidence " 
 
 '• .Sale willioiit ceriitie.Ue " 
 
 " Of other railway coinpanK-.-^ iioi lo 1il- iiurcliiscd liy 
 
 railway companies 
 
 " '• K.\ceplions 
 
 " See Stuck. 
 
 " Sec Capital stock, .'^ee C.ills. See Shareholders. 
 
 "Sheriff" — Meaninj; of '• 4, (> 
 
 Sleeping Car Companies — Liability for iiassenL;ers' liajj^af^e 357 
 
 Snow fences — iMection of .Ajipend. 
 
 33 
 33 
 
 R 
 
 i-al . 
 
 ,1.1 
 
 Jj 
 
 .Snow sheds — 1 )amai;es for electing, ,., .*^4 note (2) 
 
 Sjiaiks f.oni engine — Liability tor damage by 
 
 " Special Act " — Mtaning of \ppeiid. 
 
 Special and General Acts 
 
 rates 
 
 tram, orderinj 
 
 see 
 der 
 
 Tolls 
 
 407 
 
 340 
 
 I 
 
 Specific performance of con! acts 233 
 
Analytical Inukx. 
 
 679 
 
 50 
 
 3> 
 
 <'7 
 .U 
 
 H 
 08 
 68 
 68 
 
 88 
 
 21 
 33 
 33 
 33 
 
 i»3 
 «»3 
 
 
 4, 
 
 . . 
 
 j.t" 
 
 end. 
 
 ."^.^ 
 
 
 33 
 
 c(2) 
 
 
 
 407 
 
 L'llll. 
 
 5 
 
 
 
 
 
 340 
 
 .... 
 
 233 
 
 I 
 
 21) 
 
 . . .XjU'cinl 
 
 Speed of ir.iins ,\iul locomotives in cities Append. 1 1 5 
 
 intilie«^li:ill l)e iCKuUled liy K\. inniniillee. " '«» 
 
 Stali.m-AK.venunl to erect 7^ ""'« '^)' 9« ""«^'. '^3 "•''«■• 
 
 SliUiiU asenls 
 
 Stations- A li^htini; ;\t.— See i arriei> of pa.-enn.'i-. 
 Stixlistics— Inlerpietaliun i.f wend " company " 
 
 •< Annual teliiin^ to l)e pupaiod 
 
 >< « 1 low to lie attested 
 
 • • •• Wliat period to lie included 
 
 (. t« Duplic.ue fir Minister 
 
 t. I'liitlier returns when rciiuired 
 
 .1 .. Penally lor noncompliance 
 
 l<Uuin> to be sidiinilled to rarliameiil 
 
 '• Weekly returns to Ix; made 
 
 ,. •• Copy to be posted \ii> 
 
 .. IV-nnlty for 11" in. compliance 
 
 t> I'en.ihy foi bi^nina false returns 
 
 " Retuin~ of accidents to be made 
 
 (.':iusc and natuie 
 
 .. .. I iicaliiy and time 
 
 ., .. K.ivtenl and p.irticulars 
 
 ,, .• Cojiies of bylaws • 
 
 ,. .. l-orin of niay !«-■ prescribed. . 
 
 I'cnalty for not transmitting. 
 
 Keturns privile(;ed communications 
 
 Sie.un wlastles-Ret;ul.U..in of by Kadway Committee 
 
 Stock— Wlio in.iy hold 
 
 Subscription to 
 
 Allocation by provi-ional directors 
 
 • > Preferred 
 
 " Increase of ■■"■ 
 
 When and how municipal corporations may take., 
 
 • . Paid up may be issued in certain cases 
 
 ,ck boXto be ol-enedby provisional directors 13- -Milien. 
 
 '5i 
 
 13, Apiiend. 
 
 , 8y. .\ppeiul. 
 OS, •• 
 
 Sloe 
 
 Stolen bonds 
 
 Stones, (;ravel, etc., for construction. 
 
 ...115. MW'^- 
 
 ibcaiile to Canada. 
 
 •3* 
 i\i 
 •32 
 •3' 
 
 >33 
 
 '33 
 
 '33 
 
 '33 
 
 '34 
 
 '34 
 
 '34 
 
 '34 
 
 '34 
 '34 
 '34 
 '34 
 '35 
 "35 
 
 '35 
 10 
 
 •8 
 35 
 •7 
 
 ss 
 18 
 
 IS 
 
 20 
 
 17 
 
 II I 
 
 52 
 
 384 
 
 .. Slop, look .mdlisl. n "-Rule not appl'^--^''"-" ^" ''^^"^^"■^ " ' • ' " •■•;_; •'^^^ 
 
 Stoppage '" fi'iiiisitii. 
 
 Streams— I'ower to construct railway across. 
 
 .' 1 livening 
 
 .' To be restored to former slate ... 
 
 Slrcel railways— Power lo interfere with. . . . 
 
 Si, Append 
 
 ... S2, " 
 
 . 82 note 
 
 38 
 39 
 41 
 
 2 
 
;i; 
 
 I' 
 
 i^i; 
 
 lii 
 
 I ' 
 
 ■H 
 
 n 
 
 680 
 
 T AW OF Canada. 
 The RAiiAVAV Law 01 
 
 u 
 
 50 
 90 
 
 146 
 
 no 
 
 13 
 »3 
 36 
 
 S3 
 
 PAGF. 
 
 __,63 notes, 178 
 
 .,, inlerfercnce with Auptiid. 
 
 Strcet-Kight of — 1°;;::; K.iUvay (;c.-.--t... - ^- • -^» > 
 <i Sewer?, etc. — > 
 . _See liy^ways. ^,^^,„u,v of company ••• 
 
 Succession duly Anueivl. 
 
 SubsiJiesan<U>unuses ...••■• 
 
 s,.,.ia.e,,™u-p^-'*;;t,;;„,e,nnas..»-.-»'-;;; 
 
 SuperinteiiaeiH .->e „ >;aiurc of ; Annend. 
 
 S.^p.es 0. "rS;::;^:::.iUce n.y sl.e case ,o. . . • • • U 
 Supreme court ^^_^.^^ ^^^ ^^^^^^^ ,„,, • • _^ ^^^^^^^j. 
 
 .■■■"U'c'au.eaby...75"Ol"=^'*^ 
 
 Surveys •••••••• ,^,.^„,,i,Hiou .)f, damane. cau 
 
 .. Preliminary, P>e^<:'M'i' 
 
 .'—See I'lans. 
 
 . . 1 l-vmaci' caused »y 
 
 surface wate^-^^.^^,^^^ , Z V 
 
 ;:'^:wu"sfv- .;;8,AppenA.39.n8 
 
 1 ax on s la ic consuacl ^ " 
 
 '^^^^t ^'"^'^to .e restored - ^--;^ ^;, ;.,.„eer <' 
 " ^>^--^^^::r:^ :ne4ap.ifve.mrea;^ 
 
 " , '^''{^.Us-lnlerferenccwUh. ....Append. 
 
 -^r-^Yoi^t^edto former state........--^ 
 
 Tenants in tail 2.^^^^,,, they incAuck . ...••• • • • ' " ' ,,,y„„d 
 
 '^^T"^tJr:^'can. rac.Kv.Co.to build tlun _^ ^^^^^ 
 
 PortMoodie ApP'^"'^' 
 
 . No change of allowed. ...^. •■•-_• ,,,3 - 
 
 . . The U ndertaking " 
 
 ^ purchased on cars 
 
 .. Issued on conditions 343 
 
 j^Totice of conditions • •• ■ " 
 
 "^T" Ri;; o("Mae;:: to't^ie'JJpa-te line... ••• — -_ 
 
 " 
 
 Fo>gi"e ," f.ise tickets .. 
 
 Obtaining passage l-y f'^lse ^^ 
 
 Stealing .•■••• • • J ' " J J ;' Vaiuvay passenger tickets . 
 Act respecting the sale 
 
 » Seel'assengers. 8i, Appe^d. 
 
 .^..,^^,er-Cutling down 
 
 239 
 257 
 50 
 119 
 
 41 
 
 >5 
 
 118 
 
 118 
 
 41 
 
 83 
 62 
 
 l< 
 
 (( 
 (( 
 (( 
 
 1( 
 
 56 
 
 5 
 
 282 
 287 
 
 361 
 
 287 
 
 287 
 
 .56 
 
 156 
 
 157 
 
 159 
 
 38 
 
 A.. 
 
AXALYTU AI. InDKX. 
 
 68 1 
 
 AGE 
 
 178 
 11 
 
 50 
 90 
 
 146 
 
 . HO 
 
 I. 13 
 
 »3 
 J. 3^ 
 
 .. 239 
 .. 257 
 ... 50 
 18, 119 
 41 
 15 
 118 
 
 118 
 
 2nd. . 
 lie (2) 
 n<\ 
 
 .tc (2) 
 ipend . 
 
 41 
 
 83 
 62 
 
 56 
 
 5 
 
 282 
 .."."."■ 287 
 
 -.11 "^6 1 
 ..■34 J' -J 
 
 287 
 
 ...... 287 
 
 Append. 15^ 
 156 
 
 157 
 159 
 
 , Append. 3^ 
 
 « 
 
 106 
 106 
 
 102 
 
 281 
 •03 
 
 '03 
 
 'u5 
 
 •^'3 
 282 
 104 
 
 Pagk 
 
 Title to land — Award as a 212 
 
 " Proceedings in confirmation of 215 
 
 " Land purchased by contractor 232 
 
 Tolls and income 105 
 
 Tolls — Enforcing payment of, for carriage of goods 2S9, ApiJcml. i^s 
 
 " Company ni.iy sell i;oods for fmi;;lit charges 290, " 
 
 '• Unclaimed balance in such cases 21/ 1, '• 
 
 Lien for, upon goods cariicd 290, 
 
 " Generally 273, A|)]ieiid. 
 
 '■ By-laws fixing 273, 
 
 " Undue tliscrimination 273, 275, 27b, 277, Appeiid. 105, 
 
 '' Common law as to 273 note ( I ) 
 
 '• Special rates 274,310, Append. 
 
 •' Secret special rates prohibited 275, 
 
 Approval by Governor in Council, etc 281, " 
 
 Effect of absence of by-law 2S1 , 
 
 '• Fractions of distance and weight ,282, Ap])end. 
 
 '• Collection of 2S2-289 
 
 Rates to be posted up 282, Append. 104 
 
 ' • Passengers may be ejected for non-payment 283 
 
 Power to l.x 84, Append, 40 
 
 When subject to privileged claims for lanil taken 139 
 
 Meaning of. Append. 
 
 Regulation of by Railway Committee " 
 
 llow fixed 
 
 Classification of freight 
 
 For service as common carrier 
 
 Revision of by-law fixing 
 
 " To wiiom payable 
 
 Enforcement of payment of '89, 
 
 -Sale of goods in default of payment 290, " 
 
 Sale of unclaimed goods for 290, 
 
 " « Application of proceeds. . .290, "' 
 
 " Disposal of unclaimed balance 290," 
 
 " Extortionate — damages for 
 
 Toll bridge— Interference with rights of '64 not« 
 
 Track — See Line. 
 
 " No person to walk on Append. 
 
 « * ' " Penalty " 
 
 Traffic — Meaning of 
 
 Traffic arrangements — Powers of Railway Committee as to . . . 
 
 « Interchange of traffic 278, 
 
 « Approval of CJovernor in Council. 278, " 
 
 5 
 II 
 
 102 
 '03 
 •03 
 103 
 105 
 '05 
 106 
 106 
 106 
 106 
 
 121 
 121 
 
 5 
 II 
 
 107 
 107 
 
 ^L\ 
 
V: 
 
 683 
 
 The Railway I-aw (if Canada. 
 
 I'i; 
 
 I". 
 
 li : I 
 
 I. ' 
 
 \ 
 
 ft 
 
 « 
 
 li 
 
 II 
 
 l( 
 CI 
 
 < I 
 (I 
 
 loS 
 
 kS 
 109 
 
 109 
 107 
 
 107 
 107 
 
 Paoe 
 Traffic arrangements — Fncilities to lie affnrded in respect of 
 
 traffic 278, A])pen(l. 107 
 
 ** No unilue advnntage 27S, " 107 
 
 "' As to continuous line of railway " K S 
 
 A<;reenients in violation void 27S, 
 
 Penalty for refusal to convey and re- 
 ceive goods 
 
 Penalty for recovery and application . . 
 K(]ual facilities to Kxpress companies 
 
 279. 
 
 Generally 277. " 
 
 agreements between lonipanies as to 
 
 27S. 
 " coii-ent of st('ckliii!deis.27S, " 
 
 " 10 lie ]nililisl!cd in Canadian Clazette. 
 
 27S, Append. 107 
 " approv.il liy (]()vernor in Council. 278, " 107 
 Sec. 240 ordy applies to agreements between 
 
 rnilway companies 279 
 
 " Kxpress Companies .... 279, 280,281, Append. 109 
 
 " Kailway Comniiltee's Juris-diction exclusive. 281 
 
 Train — Ordering a special 340 
 
 " What constitutes, wiiliin meaninj^ ofsec. 52 R. S, C., cli. too.. 385 
 
 '•■ Appliances for stopping; 3S6. Ap|>end. 109 
 
 " Regulation ofs])eed, in railway out of rep.iir "' 97 
 
 " " " I'enalty " 
 
 •' Running of may be inohibited in cnse of danger. 272, •' 
 
 " " Penalty 272, '• 
 
 " To be run at regular hours 
 
 " To stop before passing swing bridge 
 
 " " " •• Exception '• 
 
 '•• Delay 
 
 " Speed of, in cities 37S, .Xppem 
 
 Moving reversely 379, •' 
 
 " penally " 
 
 Overdue " 
 
 *' duty of Mation agents when " 
 
 " " penalty " 
 
 " Copy of section to be posted iiji '• 
 
 " Wrongfully entering 
 
 Tramway Company — Court can ap[)oint a nianagcr or receiver over. . . 
 
 130 note (5) 
 Transhipment of freight Towers of Railway C'onimitte'; as to..\ppend. 11 
 
 'I'rees — Power to fell 81, •■• 38 
 
 '' Compensation for <laniages to 154 note (2) 
 
 " Injury to 185 
 
 « 
 (( 
 
 CI 
 
 11 
 It 
 
 97 
 
 97 
 
 97 
 
 no 
 
 «'.> 
 339 
 n.S 
 i'5 
 US 
 117 
 117 
 
 •'7 
 117 
 121 
 
 
Analvtuai Indkx. 
 
 683 
 
 Tage 
 
 1(1. 107 
 107 
 
 l.S 
 loS 
 
 109 
 109 
 
 107 
 
 107 
 
 107 
 107 
 
 340 
 
 385 
 109 
 
 97 
 97 
 97 
 97 
 110 
 
 "3 
 "3 
 
 339 
 US 
 I'S 
 "S 
 
 117 
 117 
 117 
 117 
 
 121 
 
 Tack 
 
 Trusts — Company not bound to st-e to 48, Append. 32 
 
 ' ' «• proviso " 32 
 
 " Where company deal in stock held in trust for their own bene- 
 
 lit 49 
 
 ' Meaning of words " In trust ." 49 
 
 Trust Deeds 122 
 
 Trustees i '9 
 
 for bondholders, 
 
 notice to 
 
 as common earri 
 
 95 
 120 
 120 
 
 140 
 
 5 
 III 
 
 40 
 106 
 106 
 
 24 
 21 
 
 27 
 
 39' 
 
 " who are '21 
 
 '' po wers oi, to convey lands 140 
 
 " " limited in certain cases 14 1 
 
 Tunnels — See Hridg^-s and Tunnels. 
 
 Tutors may convey lands 
 
 " Undertaking, '1 lie" 103, Append. 
 
 ( 'lira /^/;v.(— Effect of 
 
 Un<lue discrimination 01 preferences — See 'lolls— See Traffic. 
 
 United States — Powers in.iy be exercised in Append 
 
 U npaid vendor's lien 
 
 Vendor — 1 .ien of unpaid 
 
 Vice President— lilection of 20, Append 
 
 " Powers of 
 
 « When shall act 21, Append 
 
 Volenti uoii Jit injuria 
 
 Votes of shareholders M- Append 21 
 
 '< proxies 15 and note (4), " 22 
 
 Warehousemen — See Carriers. 
 
 Warrant of possession 215,216, Append. 74 
 
 i' •' bcfiiie aw.ird 215, 75 
 
 " " conditions for granting of " '' 75 
 
 Water-Courses Interference with 238, 243 
 
 Water Pipes— Poweis of Railway Committee as to interference with 
 
 Append. 
 
 << Power of Company to diveit or alter 
 
 Weeds to be cut down 
 
 «« «• penalty for noncompliance 
 
 «« «< mayor may cause work to be done " 
 
 ct " application of penalty 
 
 Witnesses— Power of Railway Committee to compel atten- 
 dance of Append. 12 
 
 ' ' Examinatii n of by Arbitrators 
 
 Working expenses take precedence of right of bondholders 95, Append. 44 
 
 '« " meaning of n 5 
 
 DD 
 
 II 
 
 39 
 
 12 2 
 122 
 122 
 122 
 
 13 
 149 
 
 n 
 
h 
 
 iii 
 
 ill 
 
 i. 
 
 
 68 1 
 
 Thk Railway Law of Canada. 
 
 Working the railway — Best appliances for conimunication and stopping 
 
 trains to he used 386, Append. 
 
 " " " " ])enalty " 
 
 " " " " liability for damages 386, " 
 
 " " Bells and whistles 
 
 " Position of passenger cars '' 
 
 " Trains to be run at regular hours. .339, " 
 
 '• Conveyance of (iassengers and goods 294, " 
 
 " Right of action in case of neglect. ,293, " 
 
 " Servants to wear badges '♦ 
 
 " F.xpulti'.m of passengers lefii^ingtu ])ay 
 
 fare 783, 
 
 '■ Injuiylo passengers standing on |,hu- 
 
 fprrn, etc 330, 
 
 " checks to be affiNed to baggage. .. .344, '• 
 
 " .ally for refusing to afiix cliccks. 344, " 
 
 « 
 (I 
 
 (I 
 
 evidence of value of bngijage 
 
 544- 
 
 dangerous goods 293, 
 
 ': to be p.hiinly niaiked. . 
 
 " penalty 
 
 ' ' may be refused 
 
 " carriage of sucli goods . . 
 trains to slop Ijefore jiassing a swing 
 
 bridge 
 
 exception in cases of inteiloeking 
 
 switches .... 
 
 Bell 10 be I ling or whistle sounded at 
 
 crossings 379, 
 
 I'enalty 
 
 Person to be stationed at ciossings.3SG, 
 
 Electric railway crossings 
 
 Tiains to slop at crossings 386, 
 
 " " exceptions. . . 
 
 Rale of speed in cities 37S, 
 
 As to trains uinning reversely 379, 
 
 " " " penalty... 
 
 Cars not to stand on railway crossings.. 
 
 ])enalty , 
 
 (( 
 
 >;< 
 
 (t 
 
 (( 
 
 (( 
 
 (( 
 
 proviso , 
 
 Packing of frogs 394, 
 
 " " and of wing and guard 
 
 ™ls 394, 
 
 " "Oil cups 394, 
 
 'orkmen — Claims of, when to be retained out of subsidy .... 
 
 Pagk 
 
 109 
 109 
 109 
 no 
 10 
 
 10 
 
 no 
 [II 
 III 
 
 III 
 
 II 
 112 
 
 [12 
 
 I 12 
 12 
 
 LI2 
 12 
 
 II", 
 
 113 
 
 114 
 114 
 [I4 
 
 H4 
 114 
 
 'I5 
 
 IIS 
 115 
 US 
 IIS 
 
 116 
 116 
 116 
 
 ti6 
 116 
 '47 
 
 u. 
 
 -•«'" 
 
 <9i- 
 
Pagk 
 
 109 
 109 
 109 
 no 
 no 
 no 
 no 
 m 
 ni 
 
 ni 
 
 III 
 112 
 n2 
 n2 
 nz 
 n2 
 n2 
 
 U3 
 H3 
 
 •'3 
 
 113 
 
 114 
 114 
 114 
 114 
 114 
 
 115 
 «iS 
 115 
 IIS 
 115 
 
 n6 
 116 
 n6 
 
 n6 
 n6 
 
 147