IMAGE EVALUATION TEST TARGET (MT-3) <: // (^ /^ 1.0 I.I 1.25 IIIIIM ■ 4.0 1.4 2.5 [ 2.0 1.8 1.6 150mm V cP^ ^} Ol /. v /^PPLIED^ IN/HGE . Inc .^si 1653 East Main Street ,^^- Rochester, NY 14609 USA ,^=-^ Phone: 716/482-0300 ^S=:=S=. Fax: 716/268-5989 ffi 1993, Applied Image, Inc , All Rights Reserved ^\x^ A J>^ (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Maps, plates, charts, etc.. may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: L'exemplaire fitm6 fut reproduit grdce d la g^ndrositd de: Law Library Yorit University Toronto Les images suivantes ont 6t6 reproduites avec le plus grand soin, compte tenu de ia condition et de la nettetd de l'exemplaire film*, et en conformity avec les conditions du contrat de filmage. 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Les diagrammes suivants illustrent la mdthode. 32 X 1 2 3 1 2 3 4 5 6 ■ir'r::'^ y»-' " ■■^ «)' *fr i4!$lMitui' 2-) 2(; ;{2 40 44 4r» 4(> 46 41 1 r,i vi TAHLE OF COMFNTS. PART ir. TiiK " Haiiavay Cr.M'HKM" oi' thk Act. I AOII - fi2 * I'AUT III. rnoCEDUUE ON Hll.vniNO OF AN Avviw.. 72 rAUT IV. DioEsr OK Rki'oktki> Caskk. 7.-J I Aai4 . C2 72 TABLE OF CASES CITED. 73 Aiiderdon and Colchester, lie Beer c. Stroiul - Bell anrl Codling, lie - Berkeley v. Klderkin . Cobb i\ Mid Wales . Cuttin and Taylor, Re Cameron v. Kerr - Crewson v. (Jrand Trunk Bagenais r. Trenton . Darby v. Crowland Dawson i\ Murray Furness and Gilchrist, lie G. N. S. Fishing Co. v. Ed Hepburn v. Orford Healey and Macdonald, lie Hillborn and Pickering,' lie Kelly V. O'Grady McGillivray v. Millin - Miller i'. Grand Trunk Moore v. Gamgee Murray v. Dawson O'Byrne v. Campbell - M Beg. V. C. C. Judge of Essex [ehill 21, rAOK. ■ 13. 37 - 84 • - ■89 - 52 - 34 . 1)1 - 33 - 84 5, 18, 85 . - 84 21, 22. 7'.» - \Hy ■ 52 18,41,51, H4 - !»1 - 8!» 20,41), 82 - 81 27, 02, 82 - - 11, 20 -*, 41, 51, 78, 80, 84, 85 18, 32, 41, 51, 83, 84 - . - 52 u^ viu TABLE OF CXSFS CITED. 11, 20, 21, Reg. V. Petrio Keg. r. Malcolm Riddell v. McKay .... Roberts and Holland, Ee • ■ ■ Short V. Parmer Smith r. Cannington Vestry of St. Paucras v. Batterbury .... Williams v. Richards Warren v. Deslippes Young, lie York r. Osgoode - - 3, Di, 14, IG, 20, 33, -So, .37, 41, PAGE. - 33 13, 37 23, 88 33. 81 20. 33 - 90 - 52 - 84 5, 81 - 34 87, 88 ±1. PAGE. • • 88 . 13, 37 • 23, 88 21, 33. 81 - 20, 33 . - 90 . . 52 . . 84 . r>. 81 - - 34 41 ,87, 83 57 VICTOKIA, CHAP. 55, ONT. All Act respectin<,^ Ditches and Watercourses. [Assented to 5tu May, 18^4. HEK MAJP:STY, by and with the advice and consent of the Le^'islative Assembly of the Province of Ontario, enacts as follows : — shout title. I. This Act may be cited as " TJic Ditches and Watercourses Act,189i:> CERTAIN ACTS NOT AFFECTED. a. This Act shall not affect the Acts relating to municipal 01- .government drainage work. (Uov. Stat. c. 220, s. 3). This Act is intended to apply only to what may be termed " local " drainage schemes ; those where the number of original township lots to be affected is not more than seven and where the total expenditure is not to exceed $1,000.00 (see s. 5). More extensive schemes are to be worked out under the drainage clauses of the Municipal H.D.W.— 1 '■ ! i t I i ! 2 DITCHES AND WATERCOURSES ACT. Act, now consolidated in the Drainage Act of 1894 (57 Vic. c. 56). These a<;ain aie apart ironi drainage works undertaken by the government. INTElirUKTATION CLAUSK. 3. Where the words following? occur in this Act they shall bo construea in the manner hereinafter mentionea. unless a contrary intention appears:— Engineer. -En-'inecr" shall mean civil ent^meer, Ontario land surveyor," or' such pevson as any municipality may deem competent and appoint to carry out the provisions of this Act. (3eeRev. Stat. 0.220,3.2(2).) Judge. " Judae" shall mean the senior, junior or acting judge of the county court of the couiity in which the lands are situated in respect of which the proceedings under this Act are taken. Owner. .' Owner ■' (.>) shall mean and include an owner, the executor or executors of an owner, the guardian of an infant owner any person entitled to sell and convey the land, an agent under a General power of attorney, or a power of attorney authorizing the appointee to manage and lease the lands and a municipal corporation (/.) as regards any highways under its jurisdiction. (a) The former Acts did not contain any interpretation of the term "owner," and mucli rliffionltv was thereby occasioned. The drainage clauses \>[ the Municipal Act expressly made the 1^- , of 1S94 irfc from mcnt. i they bIuiU d, unless a itario land may deem of this A-ct. uig judge of are situated are taken. the executor t owner, any ;ent under a ' authorizing a municipal jurisdiction. iitain any and much e drainage made the DITCHES AND WATERCOURSB^S ACT. 3 assessment rolls of the municipality the evidence of ownership, but no such provision is found in tiiis Act. In York v. Osgoode, 24 O. R. 12, the Queen'sBenchDivisionalCourtdecided that "owner" in the Act was intended to mean the person appearino- hy the assessment roll to be the owner, " for it could never have been intended that in a proceeding such as this, under this Act, there should be an im^uiry as to the title of the apparent owner of the lands affected by the proposed work, and that a proceeding such as this should be set at naught by the appearance after the whole pro- ceeding was at an end of persons who were not assessed claiming to be i)ersons affected or interested by or ni the work awarded to be done." (Per Armour, C. J., at p. 26). This decision was reversed by the Court of Appeal (21 A. R. 168) which held that there was nothing in the Act to «how that the word " owner " was intended to have any other than its ordinary legal meaning, and this latter decision has been sustained by the judgment of the Supreme Court (rendered 11th March, 1895, not yet reported). The result is, therefore, that it is now very necessary to see to it that t\w. owner who (whether by himself or by one of the several representatives ii i ' 4 DITCHES AND WATERCOURSES ACT. named in this clause) institutes proceedings under this Act has a good legal title to the land with respect to which he makes the declaration required by s. 7. If he has not a good title, he exposes not only himself, but all other parties atlected by or interested in the s. lieme, to the trouble and expense of Superior Court litigation. (6) The municipality, as owner of the high- ways, is upon exactly the same footing as any individual owner under the Act. Clear days. "Clear days" sliP.U mean exclusive of the first and last daya of any number of days prescribed. (52 V. c. 19, s. 7). Ditch. " Ditch" shall mean and include a drain open or covered wholly or in part and whether in the channel of a natural stream, creek or watercourse or not, and also the work and material nee saary for bridges, culverts, catch-basins and guards. Non-resident. "Non-resident" shall mean a person who does not reside within the municipality in which his lands, affected by pro- ceedings under this \ct, are situate. Maintenance. "Maintenance" shall mean and include the preservation of a ditch and keeping it in repair. DITCHES AND WATERCOURSES ACT. 5 ^s under nd with required OSes not Dd by or ble and he high- f as any st and last 9, S.7). or covered if a natural 3 work and basins and 38 not reside cted by pro- preservatton I Construction. "Construction" shall mean the original opening or making of a ditch by artificial means. Written, writing. " Written," «' writing," or terms of like import, shall mclude words printed, engraved, lithographed or otherwise traced or copied. ^ APPOINTMENT OF EXGINEEB. 4. (1) Every municipal council shall («) name and appoint by by-law (Form A) one person to bo theengineer(/>) to carry out the provisions of this Act, and such engineer shall be and continue an officer of such corporation until his appointment is revoked by by-law and of which he shall have notice, and another engineer appointed in his stead, who shall have authority to commence proceedings under this Act or to continue such work as may have been already undertaken. (See Rev. Stat. c. 220, s. 2). (a) ''Shcall." This is imperative, and it is submitted that mandamus would lie to compel the council to appoint an encrineer: Dagcnais v. Trenton, 24 O. R. at p. 345. (h) See the interpretation clauses of the Act for the extended meaning of the word eno-ineer. The functions of the engineer are judicial : Warren v. Deslippes, 33 U. C. Q. B. 59. Fees of Clerk and Engineer. • (2) The council of every municipality shall, by by-law provide for the payment to the clerk of the municipality of a 6 DITCHES AND WATERCOURSES ACT. fair and reasonable remuneration for services performed by bim in carrying out tbe provisions of this Act, and the council shall also, by by-law, fix the charges to be made by the engineer of the municipality for services performed by him under this Act. Oath of Engineer. (3) Every engineer appointed by a municipal council under this section shall (a) before entering upcn his duties take and subscribe the following oath (or affirmation) and sliall file the same with the clerk of the municipality : — In the matter ol The Ditches and Watercourses Act, 1894. I {name in fall) of the town of , in the county of , engineer (or surveyor) make oath and say, {or do solemnly declare and affirm), that I will, to the best of my skill, knowledge, judgment and ability, honestly and faithfully, and without fear of, favour to, or prejudice against any owner or owners, perform the duties from time to time assigned to me in connection with any work under The Ditches and yVatercourses Act, 1894, and make a true and just award thereof. Sworn (or solemnly declared and affirmed)^ before me at the of in the county of this I day of A.D, 189 . j A commissioner, etc. {or township clerk, or J. P). (a) This provision is new, and it should he strictly observed. Until the enoineer has taken the oath or affirmation, he cannot be said to be clothed with the powers provided bj?^ the Act. I "formed by the council ide by the led by him ml council I his duties ation) und ct, 1894. the county th and say, the best of neatly and lice against me to time The Ditches just award hould be las taken aid to be Act. I I mTCHK.S AND W'ATKIU-'OTIUSKS ACT. 7 LIMIT OF WOllK. 5. (1) Every ditch to be constructed under this Act sliall bo continued to a sufficient outlet, (a) but shall not pass throutjh or into more than seven original township lots exclusive of any part thereof on or across any load allowance, {}>) unless the council of any municipality upon the petition of two-thirds of the owners of all the lands to bo affected by the ditch shall pass a resolution authorizing the extension thereof tlirongh or into any other lots within Buch municipality, and upon the passing of sucli resolution the proposed ditch may be extomled in pursuance of such resolution, but subject always to the provision of siib-seclion 2 of this section. {(i) " Sufficient outlet." The expression used in the former Act was " proper outlet " (R. S. 0. 1887, s. 4, s.-s. 2), and a sub-section was added (s.-s. 8) recpiirinjr the written consent of an owner to be obtained before Ids lands could be overflowed or flooded. The provision as to overflowing or flooding being omitted from the present Act, it follows that a " sufficient " outlet is intended to mean one which will carry away the water without overflowing or flooding. (/>) This provision is also new. It is submitt< d that the engineer can have no jurisdiction bej'ojid the seven lots, and the limit of costs pi-ovided by the next sub-section. It will be noticed that the words used are " shall not," and the rule of con- 8 PITCHES AND WATERCOURSES ACT. Jiiil III i struetion ot statutes is tl.at where negative words are used they make the statute imperative So too where the words are absohUe, explicit and peremptory, and show that no discretion is ^iven an,l especially so where jurisdiction is conferred.' i^ee 1 otter s Divarris, pp. 228, 229. Limit of Cost. (2) Provided nevertheless that no ditch, the whole cost whereof, according to the estimate of the en.inee or the a..-ee..ent of tl.e parties, will exceed ^1,000. O.all b coltrL d under tlie provisions of this Act. ■'."-"i.ien See the notes to the last preceding sub-section. LiND.S LURLE FOR CONSTIUCTION. li„H*'f''*M^''° '"'"''' ""^ ''™''^' Of "'"<='> >n»y be made able for the eonstruotion of a ditch under this Act shaTl be 1-e lyjng within a distance of seventy.five rodf irom the des„ndpo,ntot commencement of the ditch, but the^auds through or mto which the ditch does not pass, and whicit and' ttedrrectSt."'"" '"-'>3' benefited, and then o„„ for The limit in the former Act (s. 8, s.-s. 2) was Wty rods mstead of seventy-five as at present Any attempt to as.sess lands beyond this limit would be in excess of jurisdiction. liMi vo words ivo. So licit .and is given, )nf'orred. DITCHES AND WATERCOURSKS ACT. Proviso as to Eastern Ontario. 9 (2) Provided nevertheless that the council of any county lying east of the county of Frontenac may pass a by-law declaring' that within said county the lands lyin^j within a distance of one hundred rods from the sides and point of commencement of the ditch may be made liable instead of seventy-five rods, as mentioned in sub-section 1 of this section. i^hole cost ev or the uistructed section. be made . shall be from the the lands ich lands shall not only for 2) was resent. limit DECLARATION OF OWXEnsiIir. v. Any owner («) other than the municipality shall, before commencing proceedings under this Act, file with the clerk of the municipality in which the parcel of land requiring the ditch is situate, a declaration of ownership thereof (Form B) which may be taken before a justice of the peace, a commis- sioner for taking affidavits, or the clerk of the municipality {b). (a) See notes to s. 3 as to the care necessary to be taken on the question of ownership. (b) The several forms given in the schedule '' or forms to the like effect " arc sufficient for the purposes of the Act. See s. 40. By the 58 V. c. 54, s. 1 of the amending Act of ^895, this section is amended as follows : — JUDOE MAY PERMIT DECLARATION TO BE FILED. 1. Section 7 of The Ditches and Watercourses Act, 1894, is amonded by adding thereto the following : " Provided never, theless that in case of omission to file such declaration through inadvertence or mistake at the time aforesaid, the judge may 10 I^ITCIIKS AVf) WATRncotrnSKs AOf. m t conditio,. .fs„ci;'-";:„r:r;::r ""°" "'^" '"■"'" -"" Tliis ainon.Iniont l.ocamo l,iw loth Anril ISO-? Ifc IS not (It all lilcelv tliat tl „ f -i ? '^ ' ^■ file tl,e .I.cla,ntio,w f "'«/!"'"'•« ^ make a„,l be such ,„'""'""."' °«'ner.h,p w.mki be hel.l to ue .sueli ail oiiiiHsioii as would I,.. f„t.i * x, va irlitir ,^f 41 . """I" oe ratal to the rBOCEEmNOH FOR FHIE.VM.V MEKTINO. consfr-u„'^„ Tl' ^L^'IZ^' ."'„'"'" ""^ '"""- '"= clerk of the municinamv l^ • .""' ''''"'■'' «""« »'"• ">» this Act, servo Slon .1 . "'"'""°" '"■°"''"' '"^ ''J' »• '8 of lands to be affected ann "" "^ """''"""'' °' "'»<"''« him, and naX' tLrei "a d" ""'.'"f "'''™ ^»- ='«-^ "V convenient to the!ito:rtIdioT:t"v,::-.,r;te*^ ' '""'=° to meet and estimate the cost of th^ri-IT V '''^"''''' *'"« upon the apportionment of f h! ,! ' ^"^ ^^"'''' ^' P^^^'^^^' for construction amon^thL T '"' '"^^'^"^ "^^^-^^'^l among the several owners according to their IJITCHES AND WATRROOURSKS ACT. 11 reflpective interestH therein, and settle the proportions in which the ditch shall be maintained, and the notices sliall be served not less than twelve clear days (/>) before the time named therein for meetinj,', (See llev. Btat. c. 220, s. '., purt). Tlie object of this clause is plain. l>y taking advantage of its provisions the pai'ties may avoid the expense of tlie making of an award, and may yet obtain tlie full benefit of the other provisions of the Act. In any event the procedure detailed in this section is the first step after the filing of the declaration of ownership, in the direction of an award. {a) Strict service of the notices and other preliminaries may be waived by the subsequent action of the parties : Roberts v. Holland, 5 P. R. at 355, provided the jurisdiction be otherwise undoubted : Moore v. Gamgee, L. R. 25, Q. B. D. 244. {h) "Clear days." See interpretation clause. PROCEEDINGS IF PARTIES AGREE. 9. (1) If an agreement is arrived at by tha owners, as in the next preceding section is provided, it shall be reduced to writing (Form D), and 8if,'ned by all the owners, and shall within six days after the signin-,' thereof be liled with tlie clerk of the municipality in which the parcel of land, the owner of which requires the ditch is situate; but, should the lands affected He in two or more municipalities, the agreement shall 12 i>nrH^H AMI, ^y^n^ncovn. AOT. pari). V'Wi.M,!. (hup ,,„„^ Stat. c. li20, « 6 t'-o ditci,. Sec noj:;:; "io! " '''"''''•"'■" "^ MUNICIPALITY TO KRRP FORMg. (•-i) It shall ho tho diifv nf fi,« • . «. <...■.,.„.. 5;,":;:;::?'' "-"«■■" any case for wLt" " .ll'''™'' " """ » "' "»" Act «ha,l i„ vow or invalidate LyZZ! '"''"" "f """ '•■•''""°»» '«' provided the notice, roo ? ''"'""^'"e^ "n-ler this Act, duly served ; and Iny' L'f !' ' °' """ ''"'' '■»« '«"" ■•■> writing of the p ftie , „:r;"l ,'""^' ™"" "'" "»"->' in the same manner T tl „„ ' "'" "™''™' »'»" '"•Wed court, or of the judleora !!:,'""'']""• °' ''^ <"•"=' »' ""X so as to cause l,e sal ' Tr ""f" ""' ^"'^ "» """'""^d ^^^ same to conform to the provisions of this DITCHES AND WATERCOURSES ACT. 18 This is a most salutary pro\isioii, as errors are always likely to bo iiuulo in workiiiLj out sections 8 an«l 9. A clear •listinction must be })orne in mind, howevei", between preliminaries of a routine nature and those necessary to found jurisdiction : Re Anderdon and Colchester, 21 O. R. 17() ; /tVvy. V. Moholiii, 2 O. R. 511 ; York v. Oscjoudct 2iO.R. 12. ADJOUUNINO MKETIN(» TO ADD I'AUTIES. II, If at or before the mecLin},' of owuorti providod for in Bcctoin 9 of this Act, it bhall appear that any notice requirotl by section 8 has not been served, or has not been aervcd in time, or (hily served, the owners present at such nicetinj^ may adjourn the same to some subrfC(iuent day in order to allow the neces- sary notices to be duly served, and such adjourned meeting shall, if such notices have been fjiven and served as provided by section 8, be a suflicient compliance with the provisions of this Act. To avoid ol)jections, it is well to notify any parties who may not have attended the meetin<^ of the adjournment. REEVi'; ')0 SIGN FOR MUNICIl'ALITY. 13. The reeve or other head of the municipal council of any municipality shall have power on behalf of the municipal council thereof to sign the a^^reement aforesaid, and his sij^na- ture shall be binding upon the corporation. 14 DITCHES AND WATERCOURSES ACT. The assent of the municipality may be shown by reHolutions passed by the council : York v. Osgoode, 24 O. R, 12. rUOCKKUlNGS WHKN NO AGRKEMENT. 13. In case au a«iieement as aforesaid is not arrived at by the owners at the said meeting or within five days thereafter, (a) then the owner (/>) requiring the ditch may file with the clerk of the muiiicipaUty in which such parcel is situate, a requisition (c) (form E), naming; therein all the several parcels of land that will be affected by the ditch and the respective owners thereof, and requesting that the engineer appointed by the municip) " Shall examine the locality." This exami- nation should cover the whole of the ground coming within the scope of the requisition, in order that the engineer may fix a course best adapted to the drainage of the whole. (c) In either event, if he deem it proper, or if requested so to do, the engineer " may " take evidence. Notwithstanding the permissive word, it would not be wise for an engineer to refuse to take evidence after having been requested to do DITCHES AND WATERCOURSES ACT. 19 SO. Such a refusal would amply justify the jud^^e on appeal in sending the award back under section 23. (d) In bringing in further parties as here pro- vided, care must be taken to keep within the limits prescribed by sections 5 tnd 6. (e) In fixing the time for his adjourned meet- nig, the engineer must remember tliat the next sub-section requires him to make his award withm thirty days after his first attendance. THE AWARD. (2) The engineer may adjourn Jiia examination and the hearing of evidence from time to time, and if he shall find that the ditch is required, he shall, within thirty days after his first attendance, make his award in writing (form G) «) specifying clearly the location, description and course of the ditch, Its commencement and termination; (b) appor- tiomng the work and the furnishing of material among the lands affected and the owners thereof, according to his estimate of their respective interests in the ditch ; (c) fixing the time for performance by the respective owners; (d) apportioning the maintenance of the ditch among all or any of the owners, so that as far ao practicable each owner shall maintain tlie per tion on his own land ; and (e) stating the amount of his fees and the other charges, and by whom the same shall be paid (See Rev. Stat. c. 220, s. 8 (1).) ' This is beyond doubt the most important sec- tion of tlie Act. Too great stress cannot be laid 20 DITCHES AND WATERCOURSES ACT. )f appointin< upon the importanc( competent engineers, in view of the extraordinarily wide powers which they possess. The award oper- ates as the grant of an easement on the land through which it passes, binding privies in estate as well as parties; and so long as such award remains unchanged the rights of the parties and the nature of the easement must be governed by it. Kelly V. aOrachj, 34 U. C. Q. B. 562. It is true that an appeal lies to the County Judge as hereinafter provided (s. 22, et seq.), but questions of fact and matters of detail are for the engineer, whose discretion will not be reviewed if exercised reason- ably: Re Roberts and Holland, 5 P. R. at 353; Short V. Farmer, 24 U. C. Q. B. 633 ; Cameron v. Kerr, 25 U. C. Q. B. 533. The decision of the County Court Judge, too, is final, and not appeal- able. York V. Osgoode, 24 O. R. 12, provided that the engineer has had jurisdiction to make the award : Moore v. Gamgee, L. R. 25 Q. B. D. 244. (a) The preparation of the award, as a matter of detail, shall receive every possible care and attention. The location, description and course of the ditch, its commencement and termination, should be set out with unmistakable clearness. Failure to comply with the requirements of the DITCHES AND WATERCOURSES ACT. 21 bhoroughly lordinarily ward oper- nd through ate as well 'd remains the nature it, Kelly ue that an iiereinafter IS of fact leer, whose jed reason- i. at 353; 'ameron v. on of the lot appeal- vided that make the D. 244. 3 a matter care and nd course rmination, clearness. its of the statute in this respect will invalidate the award : Dawson v. Murray, 29 U. C. Q. B. 464; Murray v. Daivson, 17 U. C. C. P. 588. Points should be clearly fixed from place to place along the course of the ditch, and the directions, distances and dimensions from point to point accurately stated. No room should be left for any possible charge of indefiniteness. Engineers too frequently depend upon the stakes placed by them in their field work, forgetting how readily these are displaced. (/>) The apportionment of the work and the furnishing of material, among the lands affected and the owners thereof, is to be in accordance with the engineer's estimate of their respective interests in the ditch. In other words this apportionment should hi based on the respective proportions of benefit to b3 derived. This is a matter to which the engineer should give most careful consideration, as it is one with which, as being matter of discretion, the judge in appeal will not readily interfere {Re Roberts and Jolland, 5 P. R. at 353), while yet there is no more frequent ground of complaint on appeal. (c) It is not sufficient, where the work is to be done by several different parties, to fix one general ill 22 WTCHES AND WATERCOURSES ACT. \[\\ time for the completion of the whole work but each particular party should be jLjiven a specified tune within which to complete his own portion See Murraij v. Dmvson and Dawsoii v. Mttrrav ante. ^' (d) The maintenance of a ditch may often be of more importance than its original construction, this depending largely upon the nature of the locality and of the soil. The remarks already made upon the question of the apportionment of the original work will apply here with equal force. (e) The amount of the engineer's fees and the other charges must be stated, and the burden of payment equitably distributed, in proportion with the benefit received. The scale of fees of the engineer and of the township clerk are fixed hv by-law under s. 4, s.-s. 3. Covering Ditches. (3) In any case where a ditch is to be covered, the engineer shall m his award specify the kind of material to be used in the covered portion of such ditch. See s. 33 as to covered ditches. CROSSINQ LAND OF PERSON NOT BENEFITED. 11, Should the engineer be of the opinion that the land nf any owner will not be sufficiently affected by the construction DITCHES AND WATERCOURSES ACT. 23 of the ditch to make him liable to perform any part thereof, and that it ia necessary or not, as the case may be, to construct the ditch across or into his land, he may, by his award, relieve such owner from performing any part of the work of the ditch and place its construction on the other owners ; and any person carrying out the provisions of the award ui)on the land of the owner so relieved shall not be considered a trespasser while causing no unnecessary damage, and he shall replace any fences opened or removed by him. (See Rev. Stat. c. 220, s. 9 (1).) This section was originally enacted to meet the difficulties arisintr in cases such as that of Riddell V. McKay, 13 U. C. L. J. 92, in which it was held that the former Act applied only where the lands of each of the adjoining owners derived actual benefit. With such questions arising, the necessity for this provision is obvious. Without it^ assuming Riddell v. McKay to be good law, a man could not continue his drain across his neighbor's land, unless the neighbor would derive actual benefit, and cases frequently arose where the Act was practically useless by reason of the difficulty of obtaining an outlet. FILING AWAUD, AND NOTICES TO PERSONS AFFECTED. 1§. The engineer shall forthwith, (a) after making his award as hereinbefore provided, file the same, and any plan, profile or specifications of the ditch, with the clerk of the municipality in which the land requiring the ditch is situate, but should the lands affected lie in two or more municipalities. I ! 24 DITCHES AND WATERCOURSES ACT. Bivon in ovidenoo in Ly L, " ° T""'?'*'"*' ""• "'"^ "« «re „M,er official docnZntf m rr:?'''«,' ^!' ""'"'°'' ""P^' »» ity, or of eacl. of til r '•",'' "'" "'"^ "' ">" municipal- flU ./of l,„ata°d 'Ll^'r'" ''?• "'"" '<"'""'"'■ "•""'he witl,^„tl,e::„"ta,fof^'^^^^^^^^^^ or persona, servic'c, (.j ofTlill,, .l':,^' :'^^;:«:»„7jf '-="« t.onof worK to be done and lateral fu nisW bv 1 " "■"■" notified as sliown hv fi,« „ i ■, ^"""^"©^ by the person i" which ho Zll rcco d r "'"' ""' "''^'' ^'""' keepa book '- sent notit he adl' ;roTwo,: J""" """" '" """■" "" tho date upon wliiel, .1 „ '" ^""^ ™' '^u'. ^"i or per.„a?,;r::;: ";r ZTtat— r,r.r -' °'=- r ^'--^•, .^^^ f- 23. it is- provided that "in every ease .„ wluclt the original record could be received undei the hand of tho proper officer, or person in whose custody ..„cl. official or public'docun.:::;: wit proof • ^'''^'' 7 --!-We « evidence ^ffi .,/••• ot the signature or of the offical character of the person or persons appear „^ to We signed the same, and without further prlof DITCHES AND WATERCOURSES ACT. 25 {c) The notice should give the date of the award as well as the date of filing. The award must be actually niade in writing within thirty days after the date of the engineer's first appointment, but it is not clear that it nmst be filed within that time. The party receiving the notice should therefore be informed of both dates. {(i) Substitutional service under s. 15, s.-s. (1), will not satisfy the reijuirements of this section.. The service must be either actual personal service, or service by registered letter. WHERE DITCH CONTINUED INTO ANOTHEB MUNICIPALITY. 19* If the lands affected by the ditch are situate in two or more municipalities, the engineer of the municipality in which proceedings were commenced shall have full power and author- ity to continue the ditch into or through so much of the lands in any other municipality as may be found necessary, but within the limit of length as hereinbefore provided, and all proceedings authorized under the provisions of this Act shall be taken and carried on in the municipality where commenced. (See Rev. Stat. c. 220, s. 26, pari.) Under s. 18, should the land affected be in two or more municipalities, the award and any plan, profile or specifications shall be filed by the engineer with the clerk of each municipality. As to the payment and collection of costs, see ss. 20, 27 and 30, post. ao DITCHES AND IVATEncODRSES ACT. ™«nfcrp;,^r:::™:rer;h.'"tr„r«^' ■■■■ '^™. - -- w..ioh pr«=ecd,n«„v„oo„mn,„„c alu ^^rdl'ir^''^ 'i; of each of the other nninw.,Voi.u' forward to the clerk .eHifloate a«ecti„r o7S "t: Ufof ^J °' "^r^ rcBpect velv and fho m„«- • i "^^^^^^ therein s..m for wMo, ,al Jd r r'-M •' "'"'"" """' P^^ "» to the troa,un. „? 1 1';;^;;' :"„"': ":"' - '-•>'« comitionoed, and unless Urn «.L.. , P'ooeed.ngs were tmcate Uafe to pa trri^Coru^I tr.'.r "^ '"' "''• take all proceediriL's for f ho o«ii V- * ? ^"^^^ P^^^r to on within its own „„Hs." ^S^TZ'sTTi^ t ^.r" confer. ''''"'^^*''P°'''-*°*''«l'--'>ing3 for WORK ON RAILWAY LANDS. an ag';l*nftitr™f..:L7e'r"'"''''',"'^ "^^ "-*- '""' or en,argen,ent hy'thTLul;rn,;:r;oV:VSur''":"°" on the lands of such railway corananv .„/7 t °' "'"'^'■' the cost of such work after Lm^lL.'^' . !°'' ""« Payment of of the nmnicipamrand tL olt rirn ,"' "^ «"""' '"""» and levy the amonnt »„ n»u °''"""''.»'>''" l'»™ POwer to assess ».;.htLjrp:LyCc:i™i:r^^^^ ti~z;Lrr:LVi:r;is^^^^^ Of the work to be done and maSs fTrlt*; ^^"^ «"' t.ve owners in the construction of sueh di^a •^: "hirry DITCHES AND WATKRC0UR8EH ACT. 27 seem just ; and Buch assessment shall in every case bo doter* mined by a supplementary award made by the engineer, and subject to appeal to the judge in the same manner as other awards made under this Act. (2) No agreement with a railway company shall be entered into by a municipal council under this section which will impose a special liability on the owners without the consent in writing, iilcd with the clerk of the mujiicipality, of two-thirds of the owners liable for the construction of the ditch in rcspoct to which such work on railway lands is to bounder- taken. (3) The cost of any such work on railway lands shall bo exclusive of the sura fixed as the limit of the cost of the work imposed by section 5 of this Act. It was decided in the case of Miller v. The Grand Trunk lly. Co., 45 U. C. Q. B. 222, that railway companies were not subject to the provisions of "The Ditches and Watercourses Act" as then in force, except as provided by s. 13 of the Act, when they would derive benefit from the work done. The ground work of this decision was that the Act as then framed was expressly confined in its operation to private and individual interests, rights and liabilities, and not to those of a public nature. The scope of the Act being after- wards enlarged, the matter became again open to question, but it has since been made the subject of definite legislation. i3y 53 Vic. c. G9, known as 28 DITCHES AND WATERCOURSES ACT. PHI "the Kaihvay Clauses of the Ditches and Water courses Act." it is p,ovidccI that eveiy i" con,pa„y owning and operating a railway in the P~„ of Ontario shall for the purposefott Act, and full provision ,s made to carry out the piovisions of the Act as applied to railways T h statute is entailed in its effect, and no doub tigation as to its validity in all respects has be, thereby avoided, by 54 Vic. c. 50, wherebv i t i^ declared that the "railway clauses' £,\e apply, to such railways only as are under the eg-slative jurisdiction of this province with Ispe I to he m u„, ,,^. ,,, ^^^ p, J.^,^_^ Althoi^S irf " "' ^"^ ""'•""'"'' ■» "*«' -e slill i" force being expressly preserved by s. 41 of this Ac tt e j ,.,„, ,, ,.^,. ^„. ^^ . y^^ .;jf J.^^. lendei the provisions of this present section eminently desirable, in order that friendly a,~ under the legislative jurisdiction of this province w.th respect to the matters by this Act provWed Ihe railway clauses are printed as an appendix to this work without any annotation, it beW considered that the remarks under th diifS DITCHES AND WATERCOURSES ACT. 29 corresponding sections of the main Act may readily be applied, mutatifi ruidandis. APPEAL TO COUNTY JODflE. <32. (1) Any owner (e tow„ HaU of which proceedings for th« ,1;!^ *^ municipality in judge, f^r the grSte Invenien e oH ""':?°'' ""'^»» ""» expense, shall fl. some othZ „ce for Z t ' ""^ '° "^^ ■nay if he think proper ord« such sal if '^^ ^''° '"'^S" 'he appellant or aLlial. to f,, I T'' '° *« P»'« "-y sufficient indemnit^'^f^tsfcol ^/the f "' ""' "» » upon receivingnotice from r„ J ^P'"'' ""d the clerk, the engineer whose a^tdTs !nneilf ' '■'*"/<""'-«' "otify interested, in the manner provided foXf ""' "" ''^'"°'' und^thisAct. ,SeeBev.kt.c1.t.nVr,a;:5l^ Which the aeS bf r""i: J" r'""" wait until all possible appea;; ha e\e flod^? m order that tlie proper convenience ofTll ! ' v-itiK Will ot course notifv fh« 4., i prompt!, after tbe expiration o. Il^nft DITCHES AND WATERCOURSES ACT. 81 (6) No limit of time is provided, but a time sliould bo chosen which will permit a reasonable length of notice being given to the parties in- terested. The judge must finally determine the appeal within two months from the date of his receipt from the clerk of the notice of appeal (s-s. 6 of this section). Inspection by Another Engineer. (4) Any appellant may havo the lands and premises inspected by any other engineer or person who, for such pur- poses, may enter upon such lands and premises, but shall do no unnecessary damage. (See 53 V. c. 08, s. 1). This is a recent provision, and a very reasonable one. It would be manifestly unfair that a party making reasonable and proper preparations for giving evidence in support of his appeal should render himself liable as for petty trespass. Clerk of the Courts. (5) The clerk of the municipality to whom the notice of appeal is given shall be the clerk of the court, and shall record the proceedings. This is new. Formerly the clerk of the Division Court fulfilled this duty, but as it is almost invariably necessary to have the clerk of the municipality present at the proof of the pre- liminaries, the change is a good one. 82 DITCHES AND WATERCOURSES ACT. Ilearhnj and Determination of Appeal thereof from ti.e clerk nl ,Z , ^' fecMving notice viW. (See «:: St.. e to : n',^;';'''"' -™<«'o.epro. Both the hearing and determination of the «n peal must t,ike place within the two months ThT rentt/ tt ""I- "■■^•'■■■"^ -- ^'^n^i; consent ot the parties interested, and it is suh n.tted that the failure of the jud^e to make ht determu,at on within the timetou^U not be take as a lapse of t . appeal, but that a mandamus vtou d p owdT V :^ 'tf '''"^ ""'"^ - p-i provideu by tne Act as against him See th« reasonnig « V'Byrne v, CampleU. 15 O. R 339 As to li.e procedure on the hearinjr of th^ appeal, see Appendix " B." ^ fOWERs OP ..roOB ON AppeH. should the aw»Tir.ffl"™f '"'"'» ««™"'P»»y W"! «nd "".an he in hisdL^ern™:urse''She\rr' "'>'-' to pro ide for the payment oJth' f • """""^ P""" tioned, and also tuZT „f T'" '" ""' »""<' "■««- payment thereof hyL"; ti t:r '-"^ »»^ o'^" "» r "'^o lu 6n^ a rr Old, Or any of them DITCHES AND WATERCOURSES ACT. 33 as to him may seem just, and may fix the amount of such costH. (c) (a) The powers of the judge on appeal are very wide indeed, but it is against the policy of the courts to exercise them to the full extent of their latitude. Thus questions of fact and matters of detail should be left largely, if not altogether, to the discretion of the engineer, and if it appear that this discretion has been reasonably exercised the judge on appeal will hesitate before interfer- ing : Re Roberts and Holland, 5 P. R. at 853 ; Shori V. Parmer, 24 U. C. Q. B. 633 ; Cameron v. Kerr, 25 U. C. Q. B. 533. {b) " May inspect the premises." Without this express provision it is doubtful if the judge could inspect the locus in quo : Reg. v. Petrie, 20 O. R. 217. Knowledge of the locus by the judge must facilitate the taking of evidence. (c) The decision of the county judge is final and not appealable, provided always that the engineer has the necessary jurisdiction to make the award : York v. Osgoode, 24 0. R. 12. The question of costs is altogether in the dis- cretion of the judge. The costs include only those of the engineer, the clerk and the judge himself, H.D.W. — 3 84 DITCHES ANT) WATERCOURSES ACT. o hVr S„ r '" J"'"^'; *" °'*^ P-^y-"' of eo«t thoZlf ™"" ^*''' "'■'""^'■y '^"^^ ■»' ">«t even though successful in opposing an appeal the expense which they cannot recover fron. the un- oi of w """^""^i'^ ^'"""^' ^"^^ -pondents, ■some of whom may refuse to take up the defence ea Is for legislative redress. The award bein. the a of an official appointed by the municipal t the municipahy should be obliged to assume t)t bmden of its defence, provision being made for a rateable levy upon all parties affeetedl- interested f JiiinS, lie ma> uirecc tnat the engineer DITCHES AND WATERCOURSES ACT. 85 be deprived of all foes in respect to the award or of such part thereof as the judge may deem proper. But such order shall not deprive any party to the proceediiiga of any remedy he may otherwise have against the engineer. This clause must speak for itself. It is to be hoped that its application will be rare. FEKS OF THE JUDGE. (9) The judge shall be entitled to charge for holding court for the trial of appeals under this Act, and for the inspection of the premises the sum of five dollars a day, which charge shall be considered part of the costs of appeal under the pro- visions of the next preceding sub-section. Under the next sub-section the payment of these and the other costs of the appeal is to be enforced in the same manner as the payment of the costs of the award. ENFORCEMENT OF AWARD AS AMENDED. * (10) The award as so altered or affirmed shall be certified by the clerk together with the costs ordered, nnd by whom to be paid, and shall be enforced in the same manner as the award of the engineer, and the time for the performance of its requirements shall be computed from ^^he date of such judg- raent in appeal ; (a) and the clerk shall immediately after the liearing, send by registered letter, to the clerk of any other municipality in which lands affected by the ditch are situate, a certified copy of the changes made in the award by the judge, which copy shall be filed with the award, and each clerk shall forthwith by registered letter notify every owner within his 86 DITCHES AND WATERCOURSES ACT. taken up by the appeal proceedings. To prevent anysnch contention, it i. distinctfy adviaaWrt o!coO:eion."'^^^'^'"''^''''^^-'°'''^'^- AWA«» HOT TO BE 8KT „,„K FOR WA»T OF F0»« OKLY. Of want otSco^X^Tuh 1'°™ ™'^ " °" '«=°<"""- the proviBione of this Mt ^ "*°"*'"^ '° '"'"•>' <"" • . ^j". '" ", ''^'■y ^*"«''''« provision. The Act is intended to be worked out largely by unskilled rzT S" "^" rr^"^ ''^ ^^^-'^^ "-^ errors Care must be taken, however, to distin- under thtT/"' i-gularities as '.nay col under this section, and the omission of some act necessary to found iHri-dip':— v i -T J """ J""-"'C"""; lo?-i- V. O«^oorfe, DITCHES AND WATERCOURSES ACT. 24 0. R. 12 ; Re Anderdon and Colchester, 21 O. R. 476; Reg. v. Malcolm, 2 O. R. 511. The spirit of this section is the same as that of section 10, WHEN AWABD BINDIN0, NOTWITHSTANDING DKFKCT8. 24. Every award made under the provisions of this Act shall after the lapse of the time hereinbefore limited for appeal to the judfje, and after the determination of appeals, if any, by him, where the award is affirmed, be valid and binding to all intents and purposes notwithstanding any defect in form or substance either in the award or in any of the proceedings relating to the works to be done thereunder taken under the provisions of this Act. This asrain must assume the award to be made by an engineer having jurisdicticm to make the award : York v. Osgoode, 24 O. R. 12. The award may be reconsidered after a lapse of two years, if for an open drain ; or of one year, if for a covered drain. (See s. 36.) By s. 2 of the amending Act of 1895 (see after g. 36), it is further provided, for eastern Ontario only, that in the event of a ditch proving insuffi- cient to carry away the water coming into it, an overflow resulting such as to cause actual damage, the agreement or award may be reconsidered after six months, so far as may be vecessary to remedy the defect to which the owerflow is due. 88 "•".m, ..„ WAmcoUBS., ACI. ^-- - the division court or in leV' ^'^'^* '^^ '^^---d by ^tat. c. 220, 8. 12.) " "'® °«»nty court. (See Rev. Subpoenas for ordi'ni,Mr ,. -i without any order o 2 ^'^^^ '"''y ^e i«,,ued. '''e m«„icii,it;';°ir ,! f ^»"«; V the cleric of attendance of re^^^Tj'' ";^t section, If «,„ other officials is fe„uh^d ! t' °'' "^ '"''•'-•" --e..,.„...j«roi?jtntrj,r ISSUE OF SUBPffiNAS. f •;-i*tS:^ ^rnL;:L;Ta;,';: 'ir --^^ ^'"-^^^^^ *«.« ^^-^^ Of a division 'our' a to C- " '''^ ^^^^^^ - th ^'tnesses upon the applicatron of ! '''""'^ ^^ ^"''P^"-^ to or upon an order of the u'wfo, T ''"''^ *" *^^ ?''-«««- ..« as a Witness before him.'' '' '"' *'^ ^'^^^^^^-^ -^ any person See the note to the In^f i^».^« j- "® ^^^^ preceding section. WITNESS FEES. mt„essos in any action iu he divti " °' '^^^ "»»"■<"' '<> *" tin; aivisiun court. Ill ! DITCHES AND WATERCOURSES ACT. * 89 • The tariff of fees to witnesses is as follows:-— Attendance j^er diem, to witnesses residinfr within three miles of the place where the court is held, if within the county... $0 75 And if without the county 1 00 Attendance iter diem if residence over three miles distant, and within county 1 00 Attendance 'per diem if residence over three miles distant, and without county 1 25 The travelling expenses of witnesses, over three miles, shall be allowed accor^Jing to the sums reasonably and actually paid, but in no case shall exceed twenty cents per mile, one way. The fees of the engineer are fixed by by-law under the Act. Surveyors, engineers and certain other professional witnesses are entitled to specific fees by statute. MDNICIPALITIES TO PAY COSTS AND COLLECT SAME FROM PERSONS LIABLE. 27. The municipality or each of the municipalities shall within ten days after the expiration of the time for appeal or after appeal, (a) as the case may be, pay to the engineer and judge and all other persons entitled to the same, their charges and fees or the portion thereof awarded or adjudged to be paid by the owners therein, and shall, if the same be not forthwith repaid by the persons awarded or adjudged to pay the same, 40 WTCHEH ,NB WATMCOUKHKS ACT. cause the amount wifh o«.. placed upon tl,„„J„JJt ;„,"/;:„",:"'• ""''«' "'»'-»'°. '» be •he person so in dofault »„,i . '"■'"' "g"'""' Hio lands o/ -.,ar«e npon ^ultX^^'Z^C'^V''''''''''-'' "--' (55 Vic. c. 48.) Assessment Act, ■1892." the same. if required in w, .tLTs' 5} u ''° V"^*^* °^^ ^«$:!5j23x W ana i, ho aids the dit^' "'"' "" ™-"^ not completed in accordance wtl' the 1 ^\'"^ ""' 'bereof J^ "ork and supply 0, materil „ ?., ^ ' ^:' """^ '^' V" "'« >«."«S "''"''"'yinfavourofthomnnH .. V '°"^'' bidder givi„„ «i, and approved by'hT X^/,^ "f"'' he was appoint? thereof within a limited time but „! ^ f"" '«'-''"n>«..=e place:- "»«• but no such letting shall talce («) Until notice in wrltin. „. »,. . beenpostedup" ^atl: tthrr'"'"'^'* '»"'»« "^ in the neishbourhoodo/ttr'"' •"""?''"'«» work is to be done for tL , '^^ "' "bid, the m And until after tZrl' T "" ^'"- "' -fe by «s«^Lt'r rtrf \°' "■» address of such ner.„na . 'asLknown award as do not fesMe L" 7''** '" '"^ »aid munipipaWi,,, „ the case mTvi"'"""'"""^ "' 4^H| /y \f^ DITCHEH AND WATERCOURSES ACT. 41 lereto, to be t'»e lands of ipou become in the same 220, 8. 14.) e jnd|re'8 ipal taxes fc, 1892." >■» iQspeciV^^^ he owners ^ rt thereof let (6j the ei" giving 3 appoint- formanoe hall take '*ing has us places hich the I ? of the 5-known he said .lity or (a) It was held in 0' Byrne v. Campbell, 15 0. R. 339, that an action would lie against the engineer for breach of his duty to make this inspection. By section 38 of the present Act, how- ever, this right of action is taken away, and the only penalty incurred by the engineer is that provided by s. 37. (6) This section provides the only remedy at the disposal of a party complaining of the non- completion of the award. See s. 38 of the Act which affirms the law as laid down in Murray v. Dawson, 17 U. C. C. P. 588 and Hepburn v. Orford, 19 O. R. 585. See further notes under s. 38. (c) The mere publication of the engineer ' notice does not aflford ground for an action of trespass where the award is invalid. York v. Osgoode, 24 0. R. 12. . Extension of time for perjomuincc. (2) If, however, the engineer is satisfied of the good faith of the person failing in the performance of the award, and there is good reason (a) for the non performance thereof, he may, in his discretion, and upon payment of his fees and charges, extend the time for performance. (See Rev. Stat. c. 220, 8. 15.) (a) It would appear that good faith and goo4 42 DilOHES AND WATEECOnRSES ACT. reason must co-exist in order to justify the engineer i„ extending the time. ^ Uamuy o/coner in i^Jault .,„ Ooe. »,.,. «/,.,.,,.„«*„,. to let commenced. »me manner as mu.«pa, I™ a """■ '° """"-'^'^i" "- Before this section was enacted, a partv in default could do the work after the ..li^^! Z nouce of letting and prior to its return "d^yL fund fo;7he "'^ "°f ^ "° -''^•^ *° '«*■ -^' - theitlf P^^'"^°' °^ 'l^*^ -'« o-sioned by PojiJer /o re-let. mance and completion. (52 Z. 49" s') """ '°"^'"- This provision is useful where the party buying 'be work fa s i,^ „.„.f..„„ .-,, ' ^ ■' "& in the work *-*jii!« '^ -^^ -f "ijii^ irtiih i;0 pci lorm it. H DITCHES AND WATERCOURSES ACT. 43 CEBTIl'ICATE OF ENQINEPm ON COMPLETION OF WOBK LET. 89< The engineer shall, within ten da>s after receipt of notice in writing of the supplying of material and completion of the work let, as in the next preceding section mentioned, inspect the same, (a) and shall if he find the material furnished and the work completed, certify the same in writing. (Form H) (b) stating the name of the contractor, the amount payable to him, the fees and charges which the engineer is entitled to for his services rendered necessary by reason of the non- performance, and by whom the same are to be paid. (See Kev. Stat. c. 220, s. 16.) (a) An engineer failing to make this inspection becomes liable to the penalty mentioned in section 87, but incurs no further liability. (b) The production of this certificate is a con- dition precedent to recovery by the contractor of the amount payable to him, (see Hudson on Building Contracts (Ed. of 1891) pp. 262, et seq.) unless it be shown that the certificate has been fraudulently and collusively witheld (Hudson, p. 298, et seq.). PAYMENT OF AMOUNTS CERTIFIED. 30. The council shall, at their meeting next after the filing of the certificate or certificates as in the next preceding section mentioned, pay the sums therein set forth to the persons therein named, (a) and unless the owners within the nmnioipality, upon notice, pay the sunis for which they are 44 DITCHES AND WATERCOURSES ACT. thereby made liable, the council shall have power to cause the amount each owner is liable for, together with seven per cent, added thereto, to be placed upon the collector's roll, and the same shall thereupon become a charge against his lands, and shall be collected in the same manner as municipal taxes (6) (See Rev. Stat. c. 220, s. 18.) (a) See note (6) to the last preceding section. (6) See note (6) to section 27. ROCK-CDTTINO OR BLASTINO. 31. (1) If it appear to the engineer that rook-cutting or olasting is required, the engineer may («.) cause the work of cuttmg or blasting and removing the rock to be done by letting the same out to public competition by tender or otherwise, instead of requiring each owner benefited to do his share of the work; and the engineer shall, by his award, determine the fractional part of the whole cost which shall be paid by each of the owners benefited, and, upon completion of the rock-cutting or blasting and removal,*, shall certify to the clerk of the municipality by which he was appointed, the total cost thereof mcludmg his fees and charges ; and the said clerk and the clerk of any other municipality affected shall notify all the owners liable to contribute under the award within their ' respective municipalities, of the said total cost and the part to be paid by him, and unless forthwith paid, the same, with seven per cent, added thereto, shall be placed on the collector's roll of the municipality in which his lands are situate, and the same shall thereupon become a charge against the land of the owners so liable, and shall be collected in the same manner as municipal taxes. (See Rev, Stat. o. 220, a. 9 (1).) DITCHES AND WATERCOURSES ACT. 45 (a) This is a matter of discretion with the engineer. The total cost of a work under this Act being limited to $1,000, it is obvious that a work involving any considerable amount of rock-cutting or blasting would be better undertaken under the Drainage Act. (57 V. c. 56.) PAYMENT OF CONTRACTOR AND ENOINEER. (2) It shall be the duty of the municipality in which pro- ceedings for the work were commenced, through the treasurer thereof, to pay the contractor for the rnok-cutting or blasting and removal as soon as done to the r. Motion and upon the certificates of the engineer, and also t .. the fees and charges of the engineer in connection therewith. (See Kev. Stat. c. 220, s. 13). As to the necessity of the production of a certificate before payment, see the notes to s. 29. OWNERS DESIRING TO USE DITCH AFTER CONSTRUCTION. 32. In case any owner during or after the construction of a ditch desires to avail himself of such ditch for the pur- pose of draining other lands than those contemplated by the original proceedings, he may avail himself of the provisions of this Act, as if he were an owner requiring the construction of a ditch : but no owner shall make use of a ditch after con- struction, unless under an agreement or award, pursuant to the provisions of this Act. (See Rev. Stat. o. 220, s. 25.) Under this section a ditch already constructed under the provisions of the Act may be used as 46 DITCHES AND WATERCOURSES ACT. »n outlet for a ne«. ditch to be s. constructed, aud .f necessary may be deepened and widened for that purpose. In this event the lands crossed by the portions requiring to be deepened and widened must be included in the new scheme, and must be o^"tn .'\ I""'f '' "^ '''"" °"Sinal township lots to which the scheme is limited by s. 5. DEEPEN.™, WIDENIW 01, COV.MM EXISTINO DIT0HF.8. 33. TIlis Act Shall apply i„ j,,^ deepening, widenhm or covenng of any ditch already or hereafter constmcTed anf the for rzUr: i^„ vrcir„nr ';r''""""° - "™ Ao^ hn( i„ , , ^^®' *'^® provisions of tliia tied --"wni r%^" ^'^*°' '^ ''''''''' -^^-^ -^-» wJw Ir , f ^^' '^^P^^'^'y ^^'^ ^" "^« «"rface and other water from land, and roads draining naturally towards and nto It as well as for the water from all the lands made Lb f for the construction thereof. (See Rev. Stat. c. 220 s. 28 J By s. 36 an award for the construction of a covered drain may be reconsidered after the expiration of one year, and one for the construction of an open drain after the expiration of two years. MAINTENANCE OF DITCHES. .n.n**' The maintenance of any ditch, whether covered or open, construe ed, or of any creek or watercourse that has been de pened or widened, under the provisions of Tke DiteZslna Wafercourses Act, being chapter 199 of the Roviaed StatuLs of DITCHES AND WATERCOURSES ACT. 47 Ontario 1877 ; The Ditches and Watercourses Act, 16ii3, being chapter 27 of the Acts passed in the 46th year of Her Majesty's roign; or The Ditches and Watercourses ^c^ being chapter 220 of the Revised Statutes of Ontario, 1887, or constructed deepened, widened or covered un-^.er this Act, shall bo per- lormed by the respective owners, in such proportion as is provided in the original or any subsequent award ; and the manner of enforcing the same, shall be as hereinafter provided. (See 52 V. c. 49, s. G.) ENFORCING MAINTENANCE. ii!i, (1) If any owner whose duty it is to maintain any portion of a ditch, shall neglect to maintain the same in the manner provided by the award, any of the owners parties to the award whose lands are affected by the ditch, may, in writing, notify the owner (a) making default, to have his por- tion put in repair within thirty days from the receipt of such notice ; and if the repairs are not made and completed within thirty days, the owner giving the notice, may notify the engineer, in writing, to inspect the portion complained of. (6) (a) As to the mode of service of notices see s. 15. Care must be taken to see that the notice is addressed to the actual owner of the land, within the meaning of the interpretation clause. (6) The making of the inspection cannot be enforced other than as provided in s. 37. Inspection and consequent expenses. "^) The inspection by the engineer and the proceedings for doing and completing the repairs required and enforcing pay- 48 DITCHES AND WATERCOURSES ACT. ment of costs, fees and charges shall be as hereinbefore provided in case of non-completion of the construction of a ditch ; (a) but should the engineer find no cause of complaint he shall certify the same with the amount of his fees and charges to the owner who complained and also to the clerk of the muni- cipality, and the owner who made complaint, shall pay the fees and charges of the engineer, and if not forthwith paid by him, the same shall be charged and collected in the same manner as is provided for by this Act, in the case of other certificates of the engineer. (a) See ss. 28, 29 and 30 and notes. Re tjonstrwting ditches not made under any statute. (3) Any owner interested in or affected by any ditch here tofore or hereafter constructed, which has not been constructed under any of the Acts mentioned in section 34 of this Act, nor under this Act, nor under any Act relating to the construction of drainage work by local assessment, may take proceedings for the deepening, widening, extending, covering or repair of such ditch in the same manner as for the construction of a ditc\ under this Act ; provided always that the extent of the work and costs thereof and assessment therefor shall not exceed the limitations imposed by sections 6 and 6 of this Act. (a) (a) Section 5 limits the cost of the whole work to within $1000, and its extent to within seven original township lots (exclusive of road allow- ance), and s. 6 provides that only those whose lands lie within seventy-five rods from the sides auu pv/iiiu v/i Cv/iuiiicnv;eiiicnu ui tu8 Oiu.'ii inay ue DITCHES AND WATERCOURSES ACT. 49 mode liable for its construction. See too the note to s. 82. KECONSIDICRATION OF AWAIiD. HO. Any owner party to the award whose lauds are affected by a ditch, whether constructed under this Act or any otlier Act respecting,' ditches and watercourses, may, at any time after the expiration of two years from the completion of the construction thereof, or in case of a covered drain at any time after the expiration of one year, take proceedings for the reconsideration of the agreement or award under which it was constructed, and in every such case he ^shall take the same proceedings, and in the sam.e form and manner, as are hereinbefore provided in the case of the construction of a ditch. This section is new, and very necessary. The award ope/ates as an easement {Kelly v. (f Grady, 34 U. C. Q. B. 562), and as the practical workino- of a ditch does not always come up to the expectations of the engineer, it would be a very serious matter if there were no provision for reconsideration. The amending Act of 1895 (58 Vic. c. 54) further provides as follows : — PROVISO AS TO EASTERN ONTARIO. 3. Section 3[5 of The Ditches and Watercourses Act, 1894, is amended by adding at the end thereof the following pro- viso : — H.D.W. — 4 60 DITCHES AND WATERCOURSES ACT. " Provided that should any ditch, after its construction, prove insufficient for the purposes for which it was constructed so as to cause an overflow of water upon any hinds along the said ditch and has caused damage to the same, any owner party to the award may at any time after the expiration of six months from the completioji of the ditch take proceedings as aforesaid for the reconsideration of the agreement or award under which such ditch was constructed for the purpose of remedying the defect in that particular respect. This proviso shall apply only to that portion of the province lyin^j east of the county of Frontenac." This amendment is undoubtedly a step in the right direction, and it is difficult to see why it should not be made to apply to the whole province. It applies only to cases where actual damage has been caused by overflowing, and then only for the purpose of remedying the defect in tlie award in that particular respect. This amendment became law on 16th April. 1895, but as the Act of which it is part is .read with and as part of the main Act, it is retro-active in effect. PENALTY FOR ENGINEER FAILING TO INSPECT. StT. Any engineer who wilfully neglects to make any inspection provided for by this Act lor thirty days after he has received written notice to inspect, shall be liable to a fine of not less than ^5 or more than ^10, to be recovered with costs on complaint made before a Justice of the Peace having jurisdiction in the matter, and in default of payment the same DITCHES AND WATERCOURSES ACT. 51 shall be recoverable by distress, and every such tine shall be paid over to the treasurer of the municipality in which the offence arose. (See liev, Stat. c. 220, s. 17.) This would seem to be tlie only penalty to which breach of duty on the part of the engineer will render him liable, especially in view of the next following section. It was held in O'Byrne v. Campbell, 15 O. R. 339, before the passing of section 88, that an action for damages would lie against the engineer for breach of the imperative duty to inspect, but it was pointed out that it would be practically impossible to prove any damage as proximately caused by this breach. In Hepburn v. Orford, 19 O. R. 585, following Murray v. Dawson, 17 U. C. C. P. 588, it was held that an action for damages sustained by non- completion of an award v/ould not lie at the suit of one party to an award against the other parties, the only remedy for non-completion being that provided by the Act itself. Section 38 of the present Act was no doubt intended to set all such questions finally at rest, and although it is unfortu- nately not very clear as to the existence or non- existence of any remedy against the engineer beyond the penalty mentioned in this section, it will probably be held to have the intended effect. 52 DITCHES AND WATERCOURSES ACT. ACTIONS FOB MANDAMUS, ETC., NOT TO LIE. St§. No action, suit oi other proceeding shall Ho or be hatl or taken for a mandamus or other order to enforce or compel the performance of an award or completion of a ditch made under this Act, but the same shall be enforced in the manner provided for by tbis Act. (See 52 V. c 40. s. 4.) See the notes to the last preceding section. This section is no doubt intended to enact the law as laid down in such cases as Berkeley v. ElderJcin, 1 E. & B. 805 ; Vestry of St. Fancras V. Batterhury, 2 C. B. N. S. c. 477 ; G. N. S. Fishing Co. V. Edgehill, L. R. 11 Q. B. D. 225; Regina v. County Court Judge of Essex, L. R. 18 Q. B. D. 704 and the cases in our own courts mentioned in the notes to the last preceding section CEllTAIN ACTS BEPEALED. 39. This Act is substituted for The Ditches and Water- courses Act as amended by the.Act passed in^the Slst year of Her Majesty's reign chapteredi35, hy^The Ditches and Wat.r- courses Amendment Act;iS89,&ud the Act passed in the 53rd year of Her Majesty's reign chaptered 68, and all Acts and parts of Acts inconsistent with this Act are hereby repealed. USE OF FOBMS. 40. In carrying into effect the provisions of this Act, 'the forms set forth in the schedule hereto may be U8ed,>nd the samo or forxYiB to the like effect shall be deemed sufficient for the purposes mentioned in the said schedule. DITCHES AND WATERCOURSES ACT. 58 UAILWAY CLAUSES NOT AFFECTED. 41. Nothing in this Act contained shall repeal, alter or affect tho Act passed in the 53rd year of Her Majesty's reii^n, chapte/ed 69, intituled An Act to amend the Ditches and Watereouriies Act as applied to liailways, and the Act in amendment thereof passed in the 54th year of Her Majesty's reign and chaptered 50. The "Railway Clauses" are given in an ap- pendix to this work. FOBMER WORKS AND PENDING MATTERS NOT \FPECTED. 42. Nothing in this Act contained shall be taken or deemed to affect the validity of anything'heretofore done or any liability incurred, nor the disposal of the costs in any action or other proceeding now pending under any former Act relating to ditches and watercourses. 54 DITCHES AND VVATKROOURHKa ACT. FORMS. Form " A." {Section 4.) BY-LAW FOR APPOINTMENT OF ENGINEER. A by-law for the appointmont of an onj^ineer under The DiVhes and Wuterconrses Act, l(i94. Finally passed 189 The municipal council of the of in the county of enacts as follows : 1. Pursuant to the provisions of section 4 of The Ditches and IVatercourses Act, 1894, {name of pcmon) of the town {or township of in the county of is hereby appointed as the engineer for this municipality to carry out the provisions of the said Act. 2. The said engineer shall be paid the following fees for services rendered under the said Act {or as the case may be). 3. This by-law shall take effect from and after the final passing thereof. Reeve. Clerk. New. Seal. DITCHES AND WATEltCOURSES ACT. 55 FoiiM "B." {Section 7.) DKCriAnATION OF OWNERflHIP. In the matter of The Ditches and Watercounes Act, 1891, and of a ditch in the township {or as the cane may be) of in the county of I of the of in the county of ^*^ solemnly declare and affirm that I am the owner vit lin the meaning of The Ditches and Watercoumes Act, IrJf-, of lot {or the sub-division of the lot, naming it) number i" tlie concession of the township of , being {describe the nature of ownership). Solemnly declared and affirmed before me at the of in the county of A.D. 189 New. a Commissioner. (J. P. or clerk.) Form '«C." {Section 8.) NOTICE TO OWNERS OF LANDS AFFECTED BY PROPOSED DITCH. To Sir, Township of ,(date) 189 . I am within the meaning of The Ditches and Water- courses Act, 1894, the owner of lot {or the sub-division, as in the d-'-cIarai ion) nnmber in the concession of ,and ■WlWtT^W^,,-.-.^ -v« ^» 56 DITCHES AND WATERCOURSES ACT. as such owner I require a ditch to be constructed {or if for reconsideration of agreement or aicard to deepen, widen or other- wise improve the ditch, state the object) for tlie draining,' of my said land under the said Act. The following other lands will be affected : {here set out the other parcels of land, lot, concession, and township and the name of the owner in each case ; also each road and the municipality controlling it.) I hereby request that you, as owner of the said {state his land), will attend at {state place of meeting), on , the day of , 189 , at the hour of o'clock in the noon, with the object of agreeing, if possible, on the respective portions of the work and materials to be done and furnished by the several owners interested and the several portions of the ditch to be maintained by them. Yours, etc. , (A'ame of owner.) {See Rev. Stat. c. 220, Form B.) Form "D." {Section 9.) AGREEMENT BY OWNERS. Township of {date) 189 Whereas it is found necessary that a ditch should be constructed {or deepened, or widened, or otherwise imp^-ovcd) under the provisions of The Ditches and. Watercourses Act, 1894, for the draining of the following lands (and roads if any) ; {here describe each parcel and give name of otvner as in the notice, including the applicant's own land, lot, conctcsion and toicnship, and also roads and by tchom cnntrolled,) DITCHES AND WATERCOURSES ACT. 67 Therefore we the owners wvtliin the meaning of the said Act of the eaid lands {ttd if ro ads proceed and the reeve of the said municipality on behalf of the council thereof) do agree each with the other as follows : That a ditch be constructed {or as the case may he) and we do hereby estimate the cost thereof at the sum of « , and the ditch shall be of the following description : (here give point of commencement, course and termination, its depth, bottom and top width and other particulars as ai/reed upon, also any bridges, cul- verts or catch basins, etc., required.) I owner of {describe his lands) agree to {here give portion of work to be done, or material to be supplied) and to complete the performance thereof on or before the day of , A.D. 189 . I ^j.^^j. owner of, etc. {as above, to the end of the That the ditch when constructed shall be maintained as follows : I owner of {describe his lands) agree to maintain the portion of ditch from {fix the point of com- mencement) to {fix the point of termination of his portion), I owner of {describe his lands) agree to maintain, ®*°" («s above, to the end of the ditch). Signed in presence of ) [ (Signed by the parties here.) {See Rev. Stat., c. 220, Form A.) ♦ Form " E." (Section 13.) REQUISITION FOR EXAMINATION BY ENGINEER. To{navuofclerl). . ^°""^^^^P °* iahty, and such report shall be final and binding as set forth in sub section 6 of this section. (JO) The engineer of the municipality in making his awanUwhich shall be made when a final agreement has'been conclu, 1 as set forth in the nc-t snh.«.nf.-.». .,,..,! j^ ^^ of the work to be performed upon the lands of^ the railway gg PITCHKH AND WATERCOURSES ACT. company, apportion such work and the eatimated costs of the same upon tho eoveral ownerH interested in the conat action of such work in proportion to tho henoHt to be derived. (11) The entiineer of tlie municipahty shall within 30 days from the date of approval by the nmna«or of the railway, as provided in subsection 2 of this section, n- in the event of the refusal of such approval, thon from the date of the agreement if made by the engineers aK provided for in subsection o of this section, or in tho event of tho engineers faihng to agree, then from the dato of the report as made by the eug.necr as provided for in subsection U of this section, make his award and tile the same with the clerk of tho municipahty. and said award shall embrace the lands oC the owners, which may be liable for the construction of any such ditch or drain, or the widening or deepening of any creek or watercourse, or for the enlarging or construction of any bridge or culvert. (12) Any interested owner may appeal against tho award of said engineer in the same manner and form as is pi^v.ded in Thr Ditcher and iratnroum',, Act, and the amendmer.ts thereto, but such appeal shall as in respect to the work upon the lands of the railway comjiany, be confined to his right of being made liable for any portion of such work, and the pro- portion or cost of the same, but such appeal shall not affect the railway company. NOTICE TO COMPANY. 6 (1) The clerk of tho municipality shall within four days after expiration of tho time for appeal if no appeal has been made, or if an appeal has been made, within four days after the final decision upon such appeal, send to the manager of the railway company by registered letter, a notice staging D1T0HE8 AND WATElUJOURSF.fl ACT. C9 tho place and day upon wliich tlio woik will bo commenced and proceeded with, which day Hlmll not be sooner than twenty, nor later than thirty days from the day of notice, and in such letter of notice lie shall ask the niana«?er of the railway which of the following modes of doinj^ the work he will select on be- half of the railway company : (rt) First, the railway company to do the work by their own employees for such amount as may have been finally agreed upon and made part of the report and award ; or {})) Second, that the work may be performed by the party or parties who are liable for the cost of per- formance of said work, and done under the super- vision of the railway engineer, or some one acting in his behalf, and subject to the provisions of section 3. (2) The manager of the railway, or some one acting in his behalf, shall within ten days after receiving the said notice, notify the clerk of the municipality, by registered letter, which of the said modes of doing the work he will select on behalf of the railway company, and if he selects to do the work under the provisions of clause (b) of the preceding sub-section, upon the receipt of such notice the clerk of the municipality shall forthwith notify the parties who are liable to perform the work, of the day that has been fixed for tho commencement of the said work, by the manager of the railway. (3) If the work is completed under the provisions of clauses (a) or (b) of sub-section (1) of this section, then, in either of such cases, the engineer of the railway company shall send to the clerk of the municipality, by registbred letter, a 111 70 DITCHES AND WATEftcOURSES AOT. ! I certilicats, certifying that tlie work lias been completed in accordance with tlie copy of the plans and profile as may have been finally agreed upon and fiirnislied to the railway com- pany. (4) When the work is completed under the provisions of clause (a) of subsection (1) of this section, the council of the municipality shall at their first meeting, after the clerk has received the certificate mentioned in the preceding stib-section, order the payment of the cost of the work and the aiune shall be paid by the municipality in accordance with the provisions of section 13 of said Ditches and Watercourses Act to the railway o»" to the party authorized by the railway company to receive the same, and if not forthwith paid by the party or parties who are liable for the same under the provisions of the award, it shall be entered upon the collector's roll as provided in sections 14 and 18 of The Ditches and Watercourses Act. l^NLAROING URIDOES AND CrLVEBTS, "7. In any case where the engineer of the municipality reports that an existing bridge or culvert in the road-bed of any railway has to be enlarged ;)y the deepening or widening of the same, or that a new bridge or culvert is required, and that the same has been agreed to and reported either as pro- vided in sub-section 2 of section 5, or as in sub-section 5 of said section 5, or as provided in sub-section G of section 5 of this Act, then all such deepening or widening or construction shall be performed by the railway company and by their employees and at the cost of the municipality in the first instance, said cost to be collect'^d from, and paid for by the owners who will be liable for the same, as provided for in the said sections 14 and 18 of The Ditches and Watercourses Act. DlfCHES ANi3 WATtlRCOtRSES ACT?. 71 COMPANY NOT LIABLK FOU COBT. 8. The railway company shall not be liable for the coPt of any work performeJ upon the lands, or luuler the road-bcas of any railway, under the provisions of this Act, DOING WOIIK WHEN COMPANY nEFUSES. tt. If any railway company neglects or refuses to proceed with the work within the time spccilied in the report for the completion of the same, then in such case the party or parties who are liable for the payment of the costs of the work under the provisions of the report or award, as may have finally been decided upon, may proceed with and complete said work upon the landn of the railway company, except the enlarj^infi of a bridge or culvert and the excavation in connection therewith. COMPANY LIABLE FOU NEGLECT. 10. If the railway company neglect or refuse to enlarge or construct a bridge or culvert within the time specified in the award or report for the completion of tlie same, then in such case tlie railway company shall bo held liable for all damages sustained by the party or parties, embraced in the roport'^or award, on account of the non-enlargement of such brid'^e or culvert; and such damages siiall accrue from the date men- tioned in the report for the completion of the work. now ACT READ AND CITED. 11. This Act may bo read and cited as The Itnllnny Clauses of the Ditches and Watercourses Act and shall be read as part of said Act. 72 DITCHES AND WATERCOURSES ACT. A PPENDTX " B. ?? Pkocedure on Hearing of an Appeal Before THE County Judge. In view of the many technical matters of which proof must be given upon the hearing of an appeal before the County Judge, a short summary of pro- cedure upon such hearing should be of practical assistance. The sections of the Act wKich especi- ally apply to appeals are sections 22, 23, 25 and 26. Upon the hearing of an appeal by the County Judge the appellant must commence the proceed- ings by proving his appeal. In order to do this he must prove that the following steps have been taken : — 1. That he has been served with notice of the filing of an award, or tliat an award has been made and filed affecting his lands, under the provisions of section 18. 2. That lie is the "owner," within the meaning of the interpretation clauses of the Act, of land afiected by the award. DITCHES AND WATERCOURSES ACT. 78 3. That within fifteen clear days from the filing of the award he did serve upon the Clerk of the municipality in which the proceedings for the ditch were initiated, a notice in writing of his intention to appeal from the award, particularly setting forth therein the grounds of the appeal. Section 22, s.-s. 1 and 2. 4. That the Clerk after the expiration of the fifteen days forwarded by registered letter or delivered to the Judge, a copy of the notice or notices of appeal and a certified copy of the award with the plans and specifications. Paragraph 22, S."S, o. 5. That the Judge thereafter notified the Clerk of the time appointed for the hearing of the appeal as provided by section 22, s.-s. 3. 6. If security ordered by the appointment that such security was duly given. 7. That the Clerk had notified the Engineer and all parties interested of the hearing of the appeal. Section 22, s.-s. 3. These steps having been properly proved the appellant is properly before the Court, and xuay then proceed to attack the award. It has been 1' ? Hi 74 ii I i I DltCHteS AND WATERCOURSES AcT. the expenencc ot the writer that .some. Judges ro.,mre the respondent, at this .stage of the p"o- ceedmg«, to prove that a valid award has been made, but it is confidently submitted that thi.s pro- cedure IS based upon a misconception of the rights of the parties. The award being n.ade is „n official act, wh.ch mast be presumed to have been ri,.htlv done untd the contrary is shewn, and it is, «,ere- forc, clear that the appellant, having proved his status, ,nust proceed to shew that there is some weakness, either in the award itself or in the .jurisdiction of the Engineer by whom it was made. A question may arise, in the event of it appeai- mg that the Engineer has acted without proper .Iuri.sdict,on, as to whether the Judge, who be m- pe..o-,uyles.gnaUc derives his juri.sdiction through that of the Engineer, has any authoritv to set aside the amird. It is submitte.I, howev;,-, that the great balance of convenience is in favour of the Judge exercising such authority. By his doino- .so the parties are placed in the proper position with- out the necessity of Superior Court litigation. It is almost impossible within the narrov/ com- pass of a work such as this to indicate the numerous objections to the merits of an award wl,;,.l, .,.,,, Pitches and wateIic'ourses act. n ' Judges tlie pro- »aH been Ms pro- e riglits 1 official rightly 1, there- ved hip, is somo in the s made. ippear- proper > beino- irouoh to set r, til at of the )inon so with- 1. ' com- jei'ous ) may possibly be taken, but the advisor of the appellant is refei-red to the notes under the diffei'cnt sections of the Act, especially to tliose under sections IG an« ^leclaration of owneraliip under section 7. 4 Service of notice of a fnendly meeting and e 1.0 d,ng of such meeting twelve clear day. thereafter under section 8. '' anid^L\""r'"' ^'^^' "•»' ""'Agreement was aruvedatby the owners p,-esent at the friendlv n>eet.ng and that no adjournment was had as provded for by section 11, or if such adjourned mee ,ng was held that no agreement was'aS at at such meeting. '"vcu 6. That the requisition was filed as provided bv section 13,and that the pe^on filing such'^rejSiJ^ was an " owner " within the n.eaning of the ^r pretation clause of the Act. forv ..w,th enclosed a copy of it by registered letter to the Engineer. Section 14. 8. That on receipt of such copy by the Engineer and place for his attendance in answer to the sUt^::: cT "°d'"^ f^" ""' "^y" - --than sixteen clear days .from the date on which he received the copy of the reauisif.;.^ «„„..-!_ !' DITCHES AND WATERCOURSES ACT. 77 ration of iting and ear days lent was friendly had aa Ijoiirned arrived 'ided by uisition , e infcer- aisition i letter igineer a time ;o the e than ch he - ^.4. KJU 1' 9. That the Clerk filed the Engineer's notice of appointment and sent a copy of it by registered letter to the owner making the requisition. Sec- tion 14. 10. That at least four clear days before the date of appointment the owner served the other owners named in the requisition with the notice of the appointment. Section 14. 11. That the owner also endorsed on one copy of the notice the time and manner of service on the other owners, and left such copy so endorsed with the Engineer not later than the day before the date of the appointment. Section 14. 12. That the Engineer attended at the time and place appointed by him as aforesaid, and examined the locality and took the other proceedings required by section 16. 13. The making and filing of the award and the notices to the persons aflfected required by section 18. M 78 DITCHES AND WATISBCOUBSKS ACT. APPENDJX "C." n.OEST OF Ontakio Rkpoutk,, Ca.sk,s Undku the UlTCJIKS AKD WATEUCdUlisES AcT. „ll„ ^u "■fljoimns' tlie plaintiffs land alleging the existence of a Inr^e .maltity of up us putzTT' '"'^"■""' """ ^-o"' parti Sr Ser «.e F 'v-''"^''"'^ "^'^''^ and liabilities undc the Fence- Viewer « Act (C. S. U. C c 57^ rhe declaration then went on to recite the , wa d d t iL t^r T? -"■'-*■•'". -'"ieh directeHwo ditches to be made by the parties, one by each and one uded thus, "said ditch to be inade'^bfo e t « Isfc October, 18G5 " Pl-n-nfm' fi "^">ic t]»e ionnanceof the award 'J nrt rr"' T'l and refusal to perfornUt on t\nli;rS;' Hirti:rt;::;:r'"r K„] t "^"'"iHi, tJi.it the declaraton was not Ivd as fading to disclose a case which 2Z e F n e-Viewers jnrisdicion. .-, ieh it suffici™t ; d " b ha ,t was bad as settin. out an award M <'nl not hx the tune each party should have with „ DITCHE8 AND WATERCOURSES ACT. DEH THE iKlnufc as "s land, surplus ties dis- abilities . c. 57). award :ed two ah, and ore tlie d per- leglect ^ part^ fusal as not >'(i tlie lycHd, iviiich ithin which to perform his sliare of the ditchinHm.«:that 'Jiore was no .laina-^e • Jl,.l,l that as a rioht was involvo,!, the pl.u'ntiff was ent.tlcl to a vc,-,)ict on the general issue for n,>,ninal 'l^images. I'l,„ Townsliip Clerk proJuce,! a copy winch he swore was a true copy of the fenVe- vicvvers awar.l the original being in Ins cu-sto-ly. He d, that such copy was admissible in evidence under C. S. U. C. c. 32, s. 6. these awards bein. made by a statutable public officer acting in a judical capacity, an,i which n.ighfc aflect a lar,re portion of the public, and even municipalities. ■Senible, per A. Wilson, J., that if the copy had been one delivered by the fenceviewers under Hie statute, ,t might have been received without proving ,t to be a true copy. Warrcny. DMip- iMR, ,1,1 Q. B. r,i). ' ■' Ihe question whether a joint interest exists is to be detennmed entirely by the fenceviewers. and tiieir discretion cannot be reviewed if fairly and ^, ^ ^...^. .\?^.v^\> IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I |45 1^ m M ■ 4.0 2.5 2.2 ZO 1.8 1.25 WWWA 1.6 150mm .01 iSs-- ^W % *> V' ^^5^^ v^ // ^. y / /^PPLIED^ IIVUGE . Inc .^= 1653 East Main Street .^= -- Rochester, NY 14609 USA -sss-^ Phone: 716/482-0300 .=5-.^^ Fax: 716/288-5989 © 1993, Applied Image, Inc., All Rights Reserved i\ ^ V e award, ought to have done the work, were the pei^ons proximately 84 DITCHES AND WATEnCOURMES ACT. i-o.sponMil.le for the danuioes. O'Birrn,' v. Cnnp- (>ell,JoO. U..i.J9,QJi.ll Where an award l,as l.oen inado un<]or the "Ditches and Watoreoursos Act, ISSH," the only remedy (Sec see. 5 of the present Act.) The award when rcoistered operates as a " lien and char-e " upon the lands, and the -reatest caution should therefore be exercised in such an important proceeding. il DITCHES ANDWAIJECOUESES ACT. 89 isiou, 24 •■b'A//) of , 1805. 'icourscs he lands I by the led that )n of II benefit Jt aside. )k eare- uifcelvey icli out- •e (a). I "lien greatest !uch an Everything hIiouM be set out accurately in the award. If uncertain it must be set aside. On the facts set out in this case : — Held, that the fenceviewers had no jurisdiction to make the award. Re Ml d' ('<>n deviate Iternative may be oute, and he award Unless there is a preponderating benefit to the land through which it is necessary to construct or maintain a ditch, for the benefit of the superior owner, the inferior owner should not be required to construct or maintain it, where it is shewn that any corresponding benefit to his land is counter- balanced by the inconvenience or nature of its location. Re Healey cO Maalonald, 26 C.LJ. 600. (8o8 n9w 830. 17 K the present Act.) The provision of the Act as to fees to witnesses being that these fees shall be the same as those allowed in the Division Court : Held, that the costs of a map or survey cannot be taxed as disbursements against an unsuccessful respondent. Re Curtin & Taylor, 26 C. L. J. 600. :s wholly 88 & Gil- Aiiroi AKriii .\i;uEi Appk/ Ari'EL INDEX. A. AlilOLKN'MKVT of uwiK'is' liicctilic: ].; • ■ii^'iiifcr.s' I'.MUiiiiiHlioii 17.1!' .Aki'ikmaiimx (,f i.iioiiiccr (i vvlicii inltiiini^tind hy ;iiM'n;'iii<'<'i' 17 Ai;i;KK\iKN"r i>( nwnci-t II < <|uiviili'iit t(» award ]'j ti> 1m' (ildl ]o nut void for iiifonii;ililifi 1^ fui'iii of . : )-,() may 1h> amfiidcd I'j suliji'Ct to a|i|if;il r TJ witli railuay coiniiaiiy ^(; Appkal to CVainty .]\id>,'(' 2<.) tiiiio witliiji uliich to l)f taken \>i\ jtr<>ci'fulin Hccurity for costs on jjO notico fr>f licariiig )f ;,;,, clerk of nuinicipality to record pnjceedings ;<() powers c»f Judge on []j ;^;j procedure on hearing of ;',2, 72 within what time to be heard ;{2 CustM on ;^o ;^;^ Appellant to serve notice of apiieal >2'.i may have land inspected by another engint cr '31 to receive notice of liearing 31 to give security if ordered ;3o [93J ■Ji 94 INDEX. Appointment of engineer, by by-law ^^*''^' form of by-law.... g. for examination of locality by engineer." .'.'■■■■ 15 oy Judge to hear appeal . '■ oil Apportionment of work by award .'.'.■.■.■; ." " " ' ' " ' * ' " j^ gj maintenance by award . ' ia Assessment roll, not test of ownership ^t Authohity of engineer— "* is limited as to extent and cost of work 7 on making of examination of locality ...'.'.'..'.'. jI award ^ to continue in«o other municipalities .' ^ on non-compliance with award . . Z to re-let work ^" as to rock-cutting or blasting... f, AWABD, when to be made by engineer. .■.■;;.■ ,. ^ what to contain "*" operates as an easement ^^' ?? when and how re-considered. ot ?? to be filed with clerk '' *^ how given in evidence. f^ appeal from \ ^ ^'* amendment by Judge. .......',. ^"^ enforcement of, as amended ? to be certified by clerk as amended t not to be set aside for form only. Z when binding notwithstanding defects S form of ^' 59 R BzKvnr must exist in certain cases where does not exist. Blasting 22 By-Law to appoint engineer. ...,.,... ** revoke engineer's appointment '. ". ^' ^f iix fees of clerk and engineer... « extend limit of work 7 Cki "C CLE Con: "Co Gobi Cost Cost Page. 6 54 15 30 . . 19, 21 ly 3 7 17 20 25 40 42 44 . 19, 20 . 19, 20 20 37, 49 23 24 . 29-36 32 35 35 36 37 59 8 22 44 5, 54 5 6 7 INDEX. 95 o. Pap h Certificate of engineer, form of q{ Charges of clerk and engineer 5 q 22 *' Clear days," definition of term \\ ' ' 4 Clerk of municipality — remuneration to be fixed by by-law 5 agreement to be filed with u 12 declaration of ownership to be filed with 9 requisition to be filed with I4 to send copy of requisition to engineer 15 receive appointment from engineer 15 file notice of appointment 15 notify owner filing requisition 15 keep supply of forms 12 award to be filed with 03 to notify parties of award 24 keep record of notices 24 notify other municipalities 2G 44 notice of appeal to be filed with 29 to notify Judge of appeal 30 parties of Judge's appointment 30 act as clerk of Appeal Court 31 notify parties of amendments to award 35 may issue subpoenas to witnesses 38 Contractor for completion of work 42, 43 rock-cutting and blasting 44 '• Construction," definition of the word 5 Corporation— see Council. Cost of work, limit of g Costs, where different municipalities concerned 26 of making the award 19 security for an appeal 30 of appeal proceedings 32 award, how collected 39 96 INDKX. Cos' I'M <,cc,i,si.)„<.(| hy.k.faultof .1 pari.; Paok. A-.i v->'t.M;ir. oininnicipalLty— to .appoint Migiji(.,'r l)y hy-law ... ens'inoor an officfi- of ... . '' to fix fees of clerk and i-ngiiKw . '' '"ay e to KST of reported cases.... '^' Ditch, definition of term "'* to be fully described in award . ...'.'. , ^ covered 1' when continued into a^ljoining municipality ^' ~^' t\ re-construction of . rt'hen may be used as outlet "'''' '''^ persons desiring to use, after construction 4^ maintenance of . ^'^^ Drain— see Ditch. 22, 4G INDEX. 97 Vac.k. 44 4y 7 12 . . . ].■! • . . 11 . . . [5!» 42 4:5 4r^ .. 4 ;, 4s 4 •• 22 .. 4 . . J) nn {) . . 1(5 ,48 ;37 78 .. 4 19 J, 22, 46 2r, . .10, 4.8 , 40 . 45 .22. 4G E. Pack. Easemen't, award operates as an 20 Eastern Ontario, special provisions for ■. . . o 50 Exi'ORCiNG iJerformance of award 40' 50 award as*amended by Judpre ;^5 Engineer — definition of the word ^ appointment of r, to be appointed by Council 5 fees of r, »' oath of office j; to be an officer of corporation 5 revocation of authority of 5 mandamus to compel appointment 5 functions of, are judicial 5 remuneration fixed by by-law (; jurisdiction of— see Authority. notice to, of filing of requisition 15 to make apjMnntment for examination 15 examination of locality by 17 ig to attend on return of appointment 17 to take evidence in certain cases 17 may direct further notices to be served 17 may adjourn proceedings I7 to make award in writing jg to file award 23 may continue ditch into adjoining municipality i»5 of api)ellant may inspect premises 31 when deprived of fees 34 witness fees of, on appeal , 39 to inspect work after time for completion 39 to let work if not completed 40 may extend time for performance 41 penalties incurred by 41 50 H.D.W. — 7 B in 98 INDEX. K.VGiNEER-(Continued) : to certify fees and expenses to Cot.ncil ^ ■'"!; may re-let work 12 to c-rtify completion of work "^^ inay have rock-cutting and blastini,^ dV.ne '^^' "!^ to inspect when alleged defaul- :„ nuiintenance It to certify result of inspection .... '""'""*'"'-« ^7 Evidence, when taken by engineer *^ award as, in legal proceedings H on appeal proceedings .... ., powers of Judge as to '^''^' "^^ EXAMiNATiox of Iocali<,v by engineer before award r f^ witnesses by engineer before award" '.'.'. r j^ before Judge in ajjpeal . ' ' ,-> l^remises by Judge .,„ by engineer after time for completion ." .' .' .' .' . . .' .' ." ' '' ^ as to maintenance ,7 Extension of limit of work time for completion "^ 41 F. Fees of engineer and clerk Judge '*f ^ witnesses on appeal ^^ to be stated in award '^^ collection of ■.,'■■. _ ^'^ i'lLiNG of declaration of ownership "' ' " ' '^' ^f agreement '* requisition ^^ award ■^■* asamended by Judge.... H iwoDiNG or overflowing lands t Forms, copies to be kept by municipality" ". . ! 1 may be adapted to .suit ca.se t, o*A -12 42 ■ • . 13, 44 44 47 48 17 24 . . .•-;2, SH 38 • . 17, 18 . . 17, 18 32 . . 32, 33 3!) 47 7 41 . . . n, r> 35 38 1!) ■'4, 45, 48 !> 12 14 23 35 I 12 52 INDEX. 99 ,, ,, , . Page. * ORM of by-law ai)pointing (-ngiiiper 54 declaration of ownership 55 notice of friendlj' meetnig 55 agreement of owners 5q requisition p» notice of engineer's appointment 58 award r,y certificate of engineer (jl Friendlv meeting, notice of 10 form of 55 proceeding.^ at lo H may be adjourned to add parties 13 Fronten'ac, counties east of j) 50 G. Government drainage work not affected 1 H. Highways, ownership of 2 where affected in different municipalities 26 I. Informalities, not to invalidate proceedings 12, 36 Inspection -see Examination. Interpretation clause 2 J. Judge, definition of 2 may allow declaration to be filed may amend agreement 12 to be notified of appeal ?{> to apix)int time for hearing appeal : may order security for costs 30 Judge— {Continued) : powers of, on appeal may inspect premises ^^' .^^ • may deprive engineer of fees . ! ! ! JI^ <■<'♦"< of, on ai)i)eal '^^ power.s of, as to evidence. ^''^ oN L. L.Ams, what, liable for construction ... when not benefited ** in adjoiniiig municipalities ." ^f. Lki-ting work on non-completion * Limit of cost ^^ ' work ^' ^ how extended ^' I Locality to be examined by engineer „ ' may be examined by ?Judge. ^"'lo M. M.viNTENANCE, definition of apportionment of , ,, enforcing . ' "^^ V r 4(] 47 Mandamus, when applicable and when not . ,' ,' Z Material, furnishing of ^. -i^, &^ Meeting of owners-see Friendly Meeting. ^'^ Municipal Act, drainage clauses of drainage work not affected ... f Council— set Council. Municipality— see Council. Municipalities, where land in different 34, 2.5, 26 INDEX. 101 32, 33 32 34 35 38 8 22 2« 40 1.8 1,7 7 17,18 32 2 1 I N. VMiK. Non-performance of work, proceedings on I'l, 43 Non-resident, definition of 4 owners, how served IG Notices, may be waived in certain cas^s 11 of friendly meeting ... 10, 55 api>ointment by engineer 15, 58 mode of serving 1*} adjournment, when not served 13 of filing of award 24 record of, to be kept 24 of appeal from award 21> appointment for hearing appeal 30 result of appeal 35 letting work on non-completion 40 neglect to maintain 47 O. Oath of engineer (; evidence under, when to be taken 17 Occupant, may be served with notices 10, K) to notify owner of service 17 Outlet must be sufficient 7 how existing ditch used as 46 OvERi! LOWING or flooding lands 7 Owner— definition of the word 2, 3 to file declaration of ownership , {) requisition . 14 filing requisition to be notified of engineer's appointment 15 notify other owners 15 endorse notice of appoiiiment 15 leave notice endorsed with engineer 15 102 INDEX. 0\vxER_(C,.„ti„ued): ^^•hero not benefited . •^''^"''" may petition to extenrlHniit'of woik ^- Uu-mUy meeting of own.rs . 7 may appeal to Judge ^^ in default, liability of -'> ^^ing to u«e ditch after ^ol^tru^iion ! ! ! It may have award re-considered . ,, f * OuNEHSHir, declaration of, to be filed '^'^' ^^ See Owner. •' f P. IKXALTIES incurred by engineer .. I KTiTiox to extend limit of work '*^' ^^ PiAN, to be filed vvitli award ^ how given in evidence ^3 I iiEUMKVARiEs to jurisdiction of eni^inm- -i; V/ ^* P«OFiLK to be filed with award ^•'' ^^' ^'^' ^^ how given in evidence ^^ Procedcre on appeal, summary ;f -'4 PnocEEmNos. not to be void fo^r informality: ''11 on friendly meeting. . . ^ where parties do not agree ..'.'.' ' }} to bring on the engineer on engineer's api^intmcnt It, appeal to Judge. ... ^^ I' to enforce the award ...".'. ". o-' !Hf maintenance.. ^"'^''f^ 46, 47 R. Railway lands, work on clauses of the Act. ........'...' . ''^ -5 not affected by this Act ^^' ^^ Reconsideration of oward ^3 37,49 TAfJK. 22 7 10 2f) 42 45 .'^7, 4J) {) . . 41, 50 7 23 24 4, 15, 16 23 24 .. 72-77 12 . 10, 11 14 .14 17 . 32, 72 5, 40, 52 • 46, 47 26 • 62, 71 53 . 37, 4f) INDEX. 103 Page. REGistnATioN of notice of appointment 15 Repaihing ditches 4(j, 48 Reeve to sign for nuniicii)ality 13 Remuneration of clerk and engineer 5, o Judge on appeal 35 witnesse.s on apjieal oS, 39 Requisition to be filed by owner 14 form of 57 Roads, municipality as owner of 2 where affected in different miuiicipalicics 20 RocK-curnxG 44 a. Security for costs on appeal 30 Service of notices, mode of 10, 25 Shout title of Act 1 SpE(;ifications to be filed with award 23 Sufficient outlet, meaning of 7 SuBPocNAs to witnesses s^ Taxes, when costs collected as 40, 42, 43, 44 Time for reconsideration of award 49 "clear days," meaning of 4 for performance to be fixed by award 19 appeal from award 29 notifying parties to appeal 31 disposing of appeal 32 performance of award as amended 35 Title of Act 1 104 INDEX. W. Paok. Want of form not to invalidate ajfreement 12 award 30 Watkkcoiuse— see Ditch. Wii/KXiNo existing ditch 40, IM WiTNESSKs, when heard by engineer 17 on appeal 32 how attendance procured 33 fees of 38, 30 Work, apiiortionuient of, by award 1<> enforcing performance of 35, 40 rock-cutting an0 blasting 44 municipal and government, not affected 1 limit of 7 lands liable for 8 on railway lands 26 letting of, on non -completion 40 extension of time for 41 certificate of comiiletion of 43 heretofore done not affected 53 Writing, definition of 5 award to be in ] 9 Writtex, definition of 5 Paok. 12 3C 4G, IS 17 32 38 38, 39 11> 35, 40 44 1 7 8 26 40 41 43 63 5 19 5 yjr -