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Las diagrammes suivants lllustrant la mAthoda. rrata to paiure. □ 32X 1 2 3 1 2 3 4 5 6 She iti lixtfncf J Octal) " Aldoin " has taken pi "property occn "inuicistaiidiii "cxpciixc of ni\ •'titc Aravor, A "auit arc licrch "the purpose of "and fnrtlier, t "see fit to iiiaki A mcctiiij October, 1 8/ J, •;«!!,v. ifenderson. I l,n Air. ( iinib( Mr. Altlcrr uliicli, on bclia rcfcMTCfl to them •Mr. C'limbi tlic (|ucstion in uitli the s.mctioi nicnt he was abi Tile Chairii convenience to question for the understanding^ th entirely without | Mr. Cumber and .said : ''I THE QUEENVS WHARF DElMlT LANDS. ::l ®he (Catpavatian of iovonto, iincl ih Jtovthcvn llinlwaj (ffio. AI'IMtlNTMKXT ol' (( ».M M I'lTKK OF KM.h ll;V, lixtmct fn))n the Minutes of t lie Corpomtion on Momtay, the "jtli day of Octol)ei\ rSj2. , _ " '' Alder tiiaii Turner, seconded by Aldcrnuxu Hamilton, move,'., that i<.'/ienax eonsidcrcrble delay " //as taken place in the meeting of the Arbitrators in the matter of the valuation of the corporation ''property occupied by the Not them Railway Company of Canada, and whereas it is desirable that an "understanding should become to with the Company without furthci delay, and if possible without the "expense of arbitration or litigation. Jie it lesolved, that a srlect Com mi t tee, consisting of His Worship ''the Mayor, Aldermen J la mil ton, Moffatt, Henderson, Thomson, Cco/.^worfh, Kerr and the nun'er, be "and are hereb: app iuted to wait upon the Managing Director of t lie Northern Railway Company, for "the purpose of taking into consideration the whole matter, and wilii a view to its speedy settlement ; "and further, that the Committee report the result of their interview \eith any recommendation they mar "see fit to make to this C ouncil for consideration and approval, which was eai ried." A nicotiii;4 of the above Committee was hekl at tlie City Hall, on Moiitlay, the 28th day of October, 1872, at which were present: — Alderman Turner, Chainii.in, Aldermen Mofifatt, Thomson, Henderson, Hamilton, Kerr and Coatsworth ^^ Mr. Cumberland, the Manatiini,^ Director of the Xortlijrn Railway was in attendance. Mr. .\lderman Turner havin<4 tal4ht there could be no objection to that course, indeed it mi^ht be a ^reat convenience to the Committee to have such a report before them when they came to consider the question for the information of the Council ; at the same time it might be well to have a clear understandinjr that any statements made on either side duriMt,^ the discussion were to be regarded as entire!)- without prejudice to the rights of either part)'. Mr. Cumberland ha\ing assented to that understanding proceeded to address the Cf)mmittee, and said : Ml. ( II \ll; .IAS \M> 'iiii for tlu' (>i>|)ortiitiity which >'oii ;iri' so ^ood as to ^;i\o nic by X'oiir iiuil.itioM In discuss this ([ucstioii ;ii)(l to stale ihr xicws of ill) C'oiuj)an>' ill re^jard to the claim ol the cit)' 111!' paxnu'iit for tlic lands uc occiip)', because it is lii^li tiiiil" tliat some decision shoiiUi i)f arrived at uiinii a matter wliicii may i)e said to iiavc been an open wound, a sort of running,' sore, bclutiii \i)ur Corp. n'ation and mini' for many _\ears, a subject of contention l)etween us incoiuenient and injurious to all the intt'rests involved. ( Jri^dnally invented, a ^ood many years a^;o, by some municipal luistinf,'s orator, it has since bcv^^ii speculatively but systematically revived at each annual election, until th.it which w.is at first the mere chance hazard of a municipal candidate searchin^r for a ^'rievaiice and .i cry, has come, insensible ami without knowled{;e, to be re^jarded as a real and substantial claim a^'ainst m\' Comiianj-. It was subsoquentlj- submitted to and immersed in the learned and technical .ir^ument of the law. and there it has been drifting' for a tedious period without much satisfaction to anybody, and without much hope of a solution. I think, there- fore, that it may be well to briuLj the m.itter to the tribunal of ])l;iin common sense, to the iLul'MHeii'. of pl.iin business men, in order that b\- a simple review of the facts and of the re.il position (■'' the case we mav endea\ our to reach an understanding of it irres|)eciive of those inf.;enuities and subtk'lies of ie;.^al statement which so often, ind sometimes so justU', defeat themsehes by reason of tile su^]>icion att.ichin.Lj to them that more is due to the skill of the .idvocate than to the merits 111" tin- east'. .My ..ppiiituiiities ha\(.' of course been very ample for actpiirin^ a knowledj^e of the whole his- tory o''llie m.itt r in contention, .md 1 ;uii vain enough to fanc)' that I know all about it. I need scarcelv s.iy tli.it in s])e.ikin^f to jou to-ila_v 1 do not ]jresume to offer )()u a Icj^al argument — for 1 know no m ire of law than any of the rest of you — I only propose to lay before you a plain state- ment of wli.it 1 believe to be the facts, and (^niidcd and fortified by the hi^h le^al authorities by whom it li.is i)een m\- e;ooil fortune to be advised) to state the bearin^j of the law, as I understand it, upon those facts so far as ;i la\nian like mvself may venture to apprehei il and toapplj' the bearing of the law upon them; ;ind 1 am not without hone that the whole cpiestion will be found to be so plain ill all it^ maiirial features as to lead \'ou to a])preciate and adopt the views which have induced my Company to ij^iiore the cl.iims which have been ur^ed on behalf of your Corporation to the slif^htest semblance of a riL;ht in retjard to tin.' lands which have been the subject of contention. It lu.iv 1)1 well for in to start b_\ enquiring' how it vv.is that the Northern Railway Company came inlu po->se-isi( 111 (if these lands, whether the original owners of them were i)arties to that possession, .md by what aiithnrilv and under wiial procedure ami coiulitioiis we took and now occupy them. r>v reference to tlie original C'li.iiter of the Company, assented to b_v Her Majesty in Coiuicil on tile ,^otli jiilv, I1S40, and ])rocla n\^d in Canada on the 29th August. 1849, you will find that the Coiii])ariy had power, under Clausi's 10. 11. 12, 15, and 16, to take and acquire property, whether belonging t(. the Crown or otherwise, necess.irv to the construction of their line and works. Accordingly we tind that in pursuance of those powers the then Directors took the necessar)' and proper steps for acquiring the lands now under discussion, and that by a Hoard Minute of the 3th October, 1S51, "a letter vv.is read from the Chief Engineer dated, 28th September 1851, re- " porting his opinio'.' as to the quantity of land required for the Freight Terminus on the east "side of the Qu en's \Vli;>.rf, and enclosing a plan of the .same * * and recom. " mending also that when applicatiuld the e.vercise of those powers be necessary — that is to say, should the Officers of Ordnance decline to acquiesce in the takini; of these lands by the Com- pany—the Compan_\- would nevertheless take the lands under the .uitliorit)- of it;. Charti'r. Hut the Officers of Onlnance ilid accpiiesce, and we tinil that the i.ieutenant-tieneral command- ing ^ii Canada made a .Minute on the 14th November. icS^i, on the above application, to the effect that the Lieuten:int-(ieneral commanding' has no militar)- objection to the proposed " measure, * * that the value of the land is estimated at ^'200 currency per ' " acre. that no revenues are tierived fi I'liMl It, and that "the matter has been sent home tor the decision of the Hoard of ( )rilnance. AccordingI)-, we find that on the 9th Januar\', 1852, the Secret. iry of the J'o.ird of Ordnance, in London, aildresseil a letter to the Secretary of State for the Colonies, reco<;nizing the right of the Compaii)- tt) take these lanils, and jjroviding for their transfer /*vlhe following terms : — " It seems "from these reports, (from the inspector (ieneral of FortiP "itions, tlie Ordnance Store- " keeper, and the Ordnance Solicitor) there is no d<.ubt tliat under the provisions of the " loth clause of the Act to incorporate the Ontario, Simcor and Huron Railway Company, " the Comjiany cannot be considered to ha\e acted illegal.y in entering the reserve without "previous consent, and that the Department can only insist upon compensation in the " manner prescribed by the Company's Act. which will be to demand of the Company " such a sum as may be considered the fair value of the land taken, and if refused, to " ha\ e the i)rice fixed by the Chairman of the General Quarter Sessions, and the Justices "as ])rovided by the 17th Section of the Railway Act, allowing whatever sum may be so " recovered to be paid into the military chest to the public credit, * * in which " proposition the Master-General and Board request the acquiescence of the Secretary of " State, ant! through his Lordship, of the Secretary of War." Thereupon an order of the Board of Ordnance, dated 2nd t'ebruarj-, 1852, was sent to the Company, transmitting a copy of the above letter, and appro\ingof the proceedings of the respective Officers of Ordnance, at Montreal, under which "the Ontario Simcoe, and Huron Rai way Company " had taken possession of that portion of the Ordnance Reserve, at Toronto, v.hich they " required." , ; \\ ill, >ii, llu' "iili I nl tin hiiTLtors, ill rc!;iti'in|^ lii-luceii tlu- tjueeii's Wharf and the west siile of Mrock Street, ])roduced to what is known as " tlu- Windmill liiu," Mr Alfred Mrunel and myself IninL,^ personall\- present and directing the procedure 111 iiiir^ii.iiu III tlu- I'loai'd's oi'diT above n-citi-d, 1 cmitciul llun th.it these lands were, on the J ^rd December, I.S51 (and the tlu claim of the city to any control of or ri<^dits in rei^^ard to these lands is based solel\- on a Liccn-.e of I >ccup.ition ^n-anted to it by the Ciovernment of Canada on the 2gth March, 1S53, it beconu'-^ important to note thcit we entered upon f)ossession on the ^.^rd December, 1S51. ami to eii(|iiiri. in whom the title to these lands then was. Now It i-- be\-oiul all question that the title of all lands set apart .is " .Militiiry Reserves" (of \vhieli tlu- laiuU in (|uestion indisi)utably formed part) had alw.iys been in the Crown until by the piissin^' of till- Act, 7 Vic, c.ip. 11, (1844), the same were vested in "the rrincijxd OiTiccrs of Her Majesty's ( )i-dn,ince," an.l all lands set apart for Military Reserves, which hail not been disposed of by the Crown jireviously to the i)assint( of that Act, v.'cre then and thereby vested in the said ( )rficei-^ ; .iiul tlu)- coiitimietl so \ested until the passing' of the Act, 19 Vic, cap. 45, (June 1.S56), whicli tr.iiisferred someof theai to Her M.xjesty's i'rincipal .Secretary of State, and \ested the remainder in I Icr .M.'ijesty for the benefit of the l'ro\-ince. l-"romiiS44, therefore, until June, 1S56 tlu- Mililar)- Reserves were vestt-d in the Officers of ( )r(ln.ince, and it was onl\- at the latter date (June, 1.S361 tli.it tlu- l'ro\inci;d (io.ernment came into any control (jr authority over tlu-m ; whilst the .Act (iij \'ic, cin. 45) which .^avc them that control expressly declares tliat tiie transfer thereby ui.ide of tlu- Militai)- Reserves from the Officers of Ordnance to the I'rovincial (io\'ernmcnt sliall be subject io (ill sii'c.t. i>>^r,yii/:://s. &(\,iT/imi(v lUttird into loit/i or hv t/ic Principal Officers, and spcci- ficii/ly ii/tii ill U'un/s reserves the rii^fits of the ( hitnrir. Siiitcoe, aihi Huron Roilxcoy L oiiipaiiy in res;ar(i U> :iie lands then occupied by them. 1 contend then that it is intls[uitable that the titleoftlie.se lands was in the Crown until 1844: lh.it then, by the .\ct, 7 Vic. cap. 1 1, the title passed to the I'rinciiial Officers of Ordnance, and that it continued vested in them until June, 1856, when, by the Act 19 Vic, cap. 45, the title again passed (in part,) to the )'i.)vincial (iovcnunent, but subject to " all sales, agreements, Sfc, then nlreadj- entered into with or by the I'rincipal Officers ; " and in.asmuch as we entered upon these lands on the 2 5rd December, i.S;i, under the ])o\vers of our Charter ;-nd with the acquiescence of "the Master tleneral and Hoard of Ordnance," of the Secretary of State and of the Secretary ofj War (as expressed in the docunieiits I have recited ;) that the License of Occupation granted byth^ Provincial Ciovernment to the Citv on the 29th March, 1853, upon which alone your Corporate rests its claim, h.ad and could have no force or effect in regard to these lands. M" But, you will naturally ask, wli.at then was the meaning of this Licen.se of Occupation so is«^ef) by the Provincial C.overnment .= If the title to these lands was not then (March, T853) vested ^^ ^^ Ciovernment, to what l.mds, lid they, by that instrument, intend to convey to your Corporaplfel right of occupation ? And liiTc it tn.iy In; well ti> dinct your aUciitinn to the iMiticiilar rc^iorvations made: in that License, which \ mi will find i^ made " Milijecl to an\- cl.iinis that in.iy be est.d)lished by the lespec- " live ( )fficers (if liir Majestv's Onlnance, by the Miiil,u\ Aiithcirities, and alsit to the "occupation by tiie Ontario, Simcoe and Huron Railwav Compau) nt such space as ni.i>' "be necissary for them for the purpose nf a 'I irminus, and which h.i-, ahead) been taken " possession of h)' them," Now, in my humble jud^nnenl, these reservation^, taken in tunnection with Mie chain of the title as I have already set it out, yield the whole question .11 re^.irds the /diit/ then already occupied by my Company ; for at the date of that License we were already in possession, under agreement with the Officers of Her Majesty's Ordnance, who win, moreover, the owners of n// the .\Iilitarv reserves until juni', 1856, or upwarils of three ye,u> after tin I.iciii>e was issued. O Hut the lanils of which we bec.uui' possessed on the J^iil lJeeemi)er, 1S51, were in truth of two kinds, viz.: " land " (ilr\- land), and "hind covered with w.Uii," .m expression anil distinction which \'ou will find set out in words in tlu' License itsell'. Now whilst we contend that the title of the "/W.vV was in ilu ( ijlieers ..f ( )r(lnance, we quite admit that the title of " tin- Uiiui covered -^villi ictilcr" w;is in tin I'rosinci.il (io\ernment; and wc submit that by keeping' this distinction in view, ami thus onl_\ , tln' lan^nia^'e of the License is consistent with the exclusion of the /(///^/ (as vested in the Ordnance/ trom its operation, and with the evident intention of the (iovernment to License to the cit\' all and whatever lands, and land covered with water, between the Oueen's Wharf and Hrock Street, as were not then vestcil in the Ordnance, or subject to an\' claims or .iirreenienls made anil est.ihlished by them. i believe this interpretation to be the true one, I'or it is monstrous to suppose that when },'rantin^ the License the liovernment was ignorant of the fact th.ii the "land" was vested in the Ordnance, and utterl)' beyond their control anil authority ; whilst ii is quite reasonable to assume that it was the intention of the (iovermnent to coiuey all the land and lands covered with water over which it was then competent for them to exercise Jurisdiction. 1 repeat (for the point is of importance) that there seems to nu: to be no other solution of the ilitTiculties involved in tlu lan^ua^e of the License, taken in connection with the facts of the case, and the position of the titles; for it is ab-urd to iiretend th.it in March, 1853, the Provincial (iovernment should assume to deal with propertv alto^^'ether lieyond its jurisdiction — to give a License of occupation to lands vested in another and a higher authority. ;ind already occupied "in pjrnianeiice, ' and under 'Jh.irter powers by another corporation- .eservin;^' nevertheless the rights of both— .Mill (notwithstanding that it reserves the occupation by ni\- (.'om])an\' and the rights of the Ordnance from whom we acquired the land) yet directs pavmcn; of the \alue of those lands to the city. 1 .Vccording then to my reading, the License, in effect, say> to the cit\- " v.e convey to you what- ever lands we possess and control," and to the Company it s.iys "you shall be protected and maintained in the possession of your lands, but you must pa> to the Ordnance whatever claim they have against \-ou for the land (dr\- land) taken from them, and \-ou must pay to the city for the remainder (the land covered with water) the fair value thereof at the time you took it, to assist the citv in the construction of the public works, in aid of which the License is granted. 1 ask you then, gentlemen, to observe that I assume so far, to have established two positions, viz : 1st. That you have no claim whatever in connection with the land taken from the Ordnance ; and 2nd, Th.it your claim is limited to the land covered with water to which alone it aps com- ])etent to the Covernment to convey to you any rights at all. We will now, if you please, proceed to consider the nature and extent of your claim in respect of the land covered with water observing, however, that the argument I propose to present to you, would have equal force in regard to the dry lands were they not dismissed, as T have dismissed them, altogether from the case. 6 .^!j y . I Uy ,, SHIM) .111 I I. |i'iii 111 I li- l)_, Mr, SainU'cifil I'li'iiiiii ; m\Ii . \\,i^ tlu I'.n^iiuiT of tlic Com panv -iiul Surveyor to ilu' ( )rilii.iiKi) it .ipptiirs tliat in .uliiilioii to tin i i.ri^ ariis of " land" taken from thf ( irilnaiiuf iIktc wcri' ahoiit ju adfi of land loMivd with watir, to he reilaimi'd from the Hav l>v lll•l•a^l -work and I'iirtli-t'dliiit,'. and it is these jo acres touhieii I am alioiit to apply the uriii^ of the I .iei.nse of ( Jeeiipatioii Now the ori^iinal intention when tiie License of Ueciipalioii wa-^ j;ranteil, i-< admilled In Mr Dalton (your own Counsel) in iiis letter of tiit- 1st Jan;'ary, 1X64, to ha' e' heen in view of. and as a provision for, the loiistruction of an I'isplanade by tlif City to the Qinriis Wliitrf. 'I'he Keport of the I'.xeeutive (duneil, approved hy the (iovcriinr-Cieneral on the 91)1 Deceinher, I1S52, and upon wliicii the l.ieiiise of ( )eeu|).ition of the J^th March, 1S55 was subsequently based, contains the fol- lowing; lant;ua(ic: '• I'he Conuuitte..' hav^* taken into consitlcration the Keport of the Commissioner of C'lown " Lands dated 19th Aii^'usi, i.S^j on an application by the M,iyor and Corporation of the "Cit)- of 'I'oroiito, for a ^r.int of the water honlai^e opposite the s.iid cit\', aihi i:\tiiiiiiii_i; "from thi- cntitiiitc of tlif I liirhov dt the Qinrii's ll'hnrf to Siiiiioc Stint, for thcf 01 inatioii " (/ ii loiiliiiiioiis l-'..liiniuli\ by filliiii^ out to n certain line to m. et the increasin^^ eomtner. "cial business of that Cit\, ,ind for other public purposes. • rile C'oniinittee lumibU' advise that |)ciulin^ an application to {'.irliament for authority to "come)' w.iter lots to the Corporation at ii noiiiinni price to ennble them to carry into " e'fect ,i;;re it public inipiovements, a License of ( )ccupalion be granted to the Corporation of " the City of I'oroiilo for the unpatented water Utts on the folloi^'im^ cona'itionx. 1st, Tiiat "the Lsplaiiade contemplateil to be matle alon_i^ the sniil :>.'ater frontage shall continence " within a period of one year, and be duly proceeded '^cith and prof erly maintained upon a plan " lo be submitted to aiul approveil by v'our I'-xccllcncv in C'ouncil." A;4aiii in a subsecpient Report of the I'.xecutive Council, approveil by His Ivxceilenc)' on the j-)th M ircli, i.'^S.v " I'lie Coiiimill .e of Council recommend that tin- License of Occupation be " i->^iied as i)raye(l for to the ^L-^yor, Aldermen and citizens of Toronto, subject, however, J^' "to an\ claims which may bi; established by the respective officers of Her ALijesty's ■; '• ( )i-dniii;Le, o • by the Militarx' .Authorities, anil subject also to the occupation by the ,v* , •' Ontario, SiiiKoi; and Huron li.iilwaj' Company, of such space as may be necessary for ' y " tlu 111 for the i)urpose of ,1 Terminus, and which has ahead)* been taken jjossession of by r ' f l*' ' "them » * » and subject i^enerally tc the other conditions imposed by the Order U«\' 1 ^' - ill Council if ijt/i Pccnibcr, jSj;j. And hiially, Ihc l.icciis- of Occupation itself after describing; the ua'.er lots to be transferred to tlu' City, comprising llic -oholc froiidii^e from the cast (f Peter Street to the Qnccn's Wharf; contains tile follow ini; terms, \ iz. ; " To ha\e and to hokl the aforesaid parcels of land unto the said Mayor, "Aldermen and Common Council of the City of Toronto, and their successors in office for " and I'.urin^^ l)leasuii', subject ne\erlheless to the following limitations and conditions, that r ; "- " is to say " 1st. I'hal the lisplanadc contemplated to be made along the .\aid water frontage be covi- " menccd within a perioii of one year, and be duly proceeded with and properly maintained "upon a plan to be submitted to and ai)proved b>- inc in Council." We thus see that in the Repnrts quoted, as well as in the License itself, the transfer of the water lots between I'eter and Batluirst Streets was conditional upon the construction by the City of an Es- flanadc "along the said water fron/agc." and further, nfon the coinincnccinent of that worh within one year from the 2()th March, iS-jj. Now that onU-r in CouikiI, a^ I believe you will admit, has never been altered, it has never been^ amended, it has ne\er b.en rescinded. It remains to-day just what it was when issued ; whatever -■ its merits then were, whate\er riijlits it then S'1^'*-^ o"" whatever conditions it then inqiosed arc neither increased nor diminished, and if you have any title at all under that instrument, you must take it^.:^_-: just as it .stands, with all its conditions ; you cannot take its benefits and reject its burthens. y<' cannot claim under one clause and repudiate the provisions of another, you must accept it as a wh<%.j \.r 1^ .111(1 uilllullt i\,|Mnll lit ,lll> |Mrt. It is iis elf ir as llDUIIil.lV tll.ll lll mtrlltiill nf tlll' l.iirllsi- fnlllUMi and fr.uiKil on tlu- petition (if tlio Curixmiliun it, ell, was |)ii\wtl\ wliat tin winds »\|in^s_tliai \(iii >li()uUi ^jct .1 l.ii.('n->c III < )iiii|)iifi(iii til I'crtain I. mils ni I'l'iti r lo ,i.\stst \i>ii !i> i,iii.\fi lut, iiiht ,.'.■:! :,'it/iiii mii' y,,ii iwiii ilu- ,t,Ui ot ilic l.iniisi lliivc von done this .' And nut ll.l\in^J done it, do >iiu miw ri'piidiatc \ uiii lialiility ti> do it, .ind i-l.iiniini; oxi'niptiiHi iVoiii tin- cnnditimis imposcil u|)i)n llic ^;r,inl, \ct «>i( k tn -t'ci'ii' to \ oiir-.fl\fs all its advanta^is. And licrc it ma)' be convenient for me to note tli.it in eorioljc.i.itn.ii of the condition ■^o to con- struct that I'lsplanadc, there is a further condition in the License in tin; foiluwiiiL; words, \i/; "Jnd "that a ri^dit of way he secured to the public, or to Mich Public L'l.rpoiations over such "portions of the said tracts or parcels of l,ind, ,ind for Midi purposes and subject to such "rcfjiiiatioiis as sli.dl be ,i))pid\e(l by im in touncil." Now everj'body knows tliat the object of tii.il provision «.i^ lo secure lo the (ir.iiid I lunk Rail\va\', as well as to the (in ,it Western and the Nortlurn Kailwa)'s, a ri^lit of \va\' from the west into tlie C'itx', and we tind tiiis oiiject >pici("ic,ili>' stt oul in ,i Report of tlie C'ommittei' of the Executive Coiim il approved on the Jnd of September, l.S-;(j, ulieie it is stated that "the Com- " mittee have had unilcr consideration a comnuinicatioii dated June, 1.S5S, from the Hoard "of Kaiiwav L'oinmissioners, containiiiin^ a proposal to brin^( tiie (ireat Western, the "(Jraiul i'ruiik aiul the Northern lines of R.iilways, umli r one fence passin'^; to t!ie Nortli "of the olil branches to the block of l.md and water front. iL;e lyin^^ to the .Soutii of the present "Parliament lUiildini^^s in the Cit\' of Toronto;" ami finilur 011 it s.iys "that the (Irand "Trunk Railwav shall make all the necessary arran^eiiunts without charge to the (iovern- " iiient for a more convenient approach to tlie Lit)', .iiul to tile proposed site for tlie " I'assentjer terminus, in tlii' manner shown in the iil.m submitteil," which plan sliowcd that the line-i of the Railwavs were to be c.uried over and upon the "continuous line of Esplanade "from the (Jueen's Wh.irf to .Sinicoe Street," wh'ch, under the conditions of the License, the City was liounti to construct. We accordiiii^ly contend that the License of ( )ccupation was conditional upon these three jirovi- sions: ist. The construction of the c.)ntinuous line of i'',splan;i(ie from the (Jueeii's Wharf to Sinicoe Street; 2nd, Upon the commencemi nt of that work within one ve.ir from the date of the License ; anil 3rd, The ^ranlin;; of a Railway rijjlu of way upon that Lsiilanade.ifter it should be constructed ; and we say tli.it as none of tl ese coiulitions have been comiilied with, \ nu have no rij^hts whatever to or in connection with the lands covered with water dealt with in tin. License, and tiiat the License is forfeit. .j.'i . Iiul it has been contended on behalf of the Citj- that the c mditioii in the License reiiuiriii^r the City to construct the ICsplanade did not involve the construction of it on tlie frontage granted, and from the Queen's Wharf to Simcoe Street ; but that the condition has been satisfied by the con- struction of the ICs])lanade F.ast of Ihock Street as now e.vistiiiL;. Unfortunately for that view, however, I shall be able to show tliat you vourselves recognized your liability to construct the continuous I'^splanade from the Queen's Wharf i'.astward, in \arious public documents, and over and over again. Wh}', your own Counsel (Mr. Daltoii) in a letter addressed to the Commissioner of Crown Lands dated 1st January, 1.S64, admits that the License was originally granted in view of, and as a provision for, tlie construction of an espl.made, by tlie City, to the Queen's Wharf; and in another letter (9th April. 1863) he says that "the esplanade to " Brock Street, mentioned in the agreement of I'lst June, iHiC), is substituted by the effect "of all that took ^Xv^zc for the Esplanade mentioned in tlie IJeense," namely, an Esplanade to :he Qnee.i's Wharf \ but that " whatever rights the Northern Railway had under the License still remain, because the Northern Railway was not a party to the agreenitnt mentioned," which I take to mean that if we were called upon under the License to pay the City for the lands taken, we had a right to demand fmni the City the construction cf tlie Esplanade as a condition precedent to the jjav mcnt. 1 tt*' V r .' • ill till-. -laiiif litter, ^jrDWiii^; boiilLi' as lie ^juci, aiul n iiu.miiI)i riii); llu coiulitii)!! nl the License ' {I0 til . I ri^ht ol way, he (l)-niaiuls, atiinii^st lit III r tiling's, that "the ei)ntiiuiatii>ri ul the l'>|ilai)atle, ■ anil tile traek ol tile (iraiiil I rutik thereon, iVuiii iimek Street tu the (Jueeii's Wharf " -.III mitl lie />/•(■.<(•/ ;'«v/." Ami uiinii tliw iiiiinl he Ha> s ; "I In -^j tu refer tu tlie cuiitrael " III tui 111 tile ( it) .inil tlu (Iraiiil i niiik KaiKsay Ciiiii|Mn\ , ti.iieii ^iitli .\ii^;iist, 185(1, •■ l>y \\hiili the ( it\ /v/i///,' r'// ///<• l.iiiii.u (if On ii/' to the (Jraiiil I'runk, which they liavi' not ^;iven, over \\orks which b>' the same iiistnimeni tiny were boiiinl to toiistnict, but which wi-, not they, lia\e constructed at our own cost! It is clear that when Mr. l>.iltoii claimed in tli.it litter tli.it "the License of Occupation should li ■ curie I out" lie fori^rot that if the .Ndrthern was cilled upon to pa)' for the kind it took, the C'it)', ,is a condition pri'Cedeiit thereto, w.is also callid ujioii, .is he admits, to construct .in i'ispliinade in iVoiit o| that land; and upmi that l'!s|ilaiiade, so constructed, to ^'i\e a rii^lit of wa)' to the re-'pective R.iilwa)' C'oiH|).lllies. Hut I shall be ,ible l.i show that when the C'it)' eilte'-ed into tile .ij^n't enient of the ;,olh Aiij^ust, 185^), Imiitiiv.; the construction of the iisplaiiade to the frontage l''..ist of itrock, it had been ilisco\- ired lli.it tile cost of the i'isplanadc thence to tlii' Oueen's Wharf \\oiild bi' imiiieiisel)' in excess of the most e.N.i^'^'eraled value to l)e attached to the lands for which they wmild thus acciuire a rif^Iit to payment ; and tlia." it was in the economical interest of the City to forfeit all the advanta^^es of 'It" the License and all claim to the lands West of lirock Street, rather tli.'in to undertake the coiistruc- l.a JjuM of the i'.spjan.ide as oii^'in.ill)- reipiind liy the License. • ',' .r'' I shall proceed to est.iblish this b\ rel'erence to \'ariou-> |)iil>lie documents setting; out the polic)' ■ :' I and action ot the ('it\' in this matter. \\\ till !\i|iort (No. 5) of the .Standin;^ Committee on Wharses and Harbors, dated 22 April, 1854, and signed b\- the i ionor.ibli'. ('< W. Allan, C'h.iirm.in, tlie Committee .L;ives a review of " the "subjects connected with the undert.ikin^r " (the l'".s|ilan.ide), the nature of the Tenure by wliich the Coriiitr itioii holiU the water lots, iS;c., and proceeds to state tli.it "by ;i License of Occup.'ition issued " by the Ci. (i.on the 27th March, 1X53, in conformit)- with ])i-evious orders in Council, the ■' City acquired the rij^dit to occupy all the water lots * * between the west side "ul'l'eler Street and the Queen's Wharf * * sul)ject, however, to the following •• comlitions" (amoii^jst others), "namely. ///,i/ tlir i.splaiuuic lo he hiiilt ciloii}^- tin- 7CiUfr "/>■(>// /a i^r ()/ t/it-.u- lots sliould be commenced within a )-ear from the date of the License "of CX'cup.ition :" and it proceeds to sa)' tli.it "powers were };iveii to the Corporation l)y tiie " Act 10, \'ic., caj). 211) * * to contract for the buildintr of the ICsplanade (/rrf'jA " till- water lots licld iiihicr the License of Oecii/'otioii accori/iii^i^ to the provisions of the said "License." lUit a new plan of the I'lsplan.ide h.ivinj; been adopted, " the City liad only " tlie power to contr.ict for the construction of the Ivsplanade, rtrtw^////,^ /<; the new plan " alon;4 that part of the w.iter frontage held under the License of Occupation ami extending ' . " /;•('/// Ilrock Street to Simcoe Street," thus showing that the portion west of Ikock Street to the Oueen's Wh;.rf hail been abandoned. .t'- iind Again oil 1 itli September, 1S54, the I2tli I'^eport of the Committee on Finance and Assessment signed by K. H. Rutherford, in giving a statement of " unproductive property" include? " the " water lots between i'ltcr Street and the C^ucen's Wharf /or the purpose of an ICsplanade, " .111(1 for which the onl\- title \'et given is a License of Occupation." Again, on the 12th Maicli, i,S35, a Select Committee was appointed, with Mr. Adam Wilson C'hairman, to furnish "the fullisi information on the subject of the Esplanade," and to whom 'a jiapers connected tlicrewith were nferred," and in the Report of tliat Committee we find that whil the Esplanade .Act of i.S;^ was before the Legislature " the City obtained a License of Occupatij ^ cnsc the cross sniii treet nent An.l ,nil "Mr 3n 1 " of certain uatiT l«>t> ami >tri|)H nf I. mil />,t:,rrii Kirs' ll'linr/ ,vi,i tlir (J/ion's Wlinrf, " sultjcct, ,1111(111^,' utlur cKiiditiniis, to iln' ciiiiditiiin iif ^.ltIIma•llc•i^^; tlu' l-NplaiKulc witiiin " one year from tlir ilati- of tlu- I.iiiiiM-, and /'////(//«/ tlusnun- upon ,i plan to be subinitlfd "to and appn>\i(| by tin- ( iovirnor-tiiiural in Council. I'hc I'lHplaihuU' Alt of iS5^ waN tian |)a-.M(l upon llu- pctnioii .;/ the iorpoiiifioi;, and K'^''"H " powir to the City to contract with any one to erect and build an I".-ip!anade in front of "ami upon t/ir :or/(i /o/s in the Cit\ de>cribcd in tin li'ttirt pati'nt ,\ni\ I.ici'nse of " ( )ccupation " Anil furtlur on It ^tati-> that 'at the reipiest of tiie Connnittce on \Vhar\e>. and Harbor.-. " Mr. .Slianl\- prepared a plan and specifications/^/- t/iriKiistrnction of an l\sp,\'n■ to .Simcoe Street •' in .1 direct line," Tenders were received on loth Sei)teniber, ltS5 ;, fi)r constructing the works onthe respectivepians of these I'ai^'ineers , the lowest bein^' on Mr. Shatiie's plan, X"iiK).iK)o, and on Mr. Howard's plan. jCJ!,, 000. I have troubled nou with these extracts to siiow that up to [tiie loth September, 1853, the city recoi,Miised the condition imposed upon it by the License of Uccupation to construct the ICsplanacle to the (Jueeii's Wharf, it obtaineil le^ds'.ative powers for the purpose, it instructed the I'aij^nneer.s to embrace thai portion of the work in tiieir designs and estimates; and it e\en went so far as to re- ceive ti'iulers from contractors for its construction Mut now there came a chanj.ie, ami we linil t'rom tin.' same report th.it noni' of the tenders received on the loth .September, l' of the City;" thus suddenly, ami for the first lime abamlonini,' that portion of it West o' lirock, and crossin},' the lands ^'ranted b_\- the License. I ha\e no desire to stir u|) the dirt)' water a^'itated al the time b)- this famous report of Mr, Adam Wilson, but I may be permitted :o observe that your own Committee, of which he was chairman, did not hesitate to impute the change to a desire to cscap-: from the construction of the most difficult and ci>stl_\- |)ortion of the whole work, namel)-, that between Urock Street and the (Jueen's Wharf, where as the rejjort states, the water was deepest. .\l any rale that work was abandoned, and on the 4th Jainiar)-, I.S54, a contract was executeil for an I'^splanade " commencing at Hrock Street," and in referrin<:j to this limitation of the work the Report proceeds to jxplain that •' the whole distance between the Oueen's Wharf and Hrock Street, " /las Ihcn ohandoncii, a ilistance of rather more than 1700 feet, the cost of which, includinj^ " the jetty at the Oueen's Wharf would be, according to Mr. Sha dy's estimate, ,^25,799." May 1 not sa)-, gentlemen, that here at length, we ha\e reached the secret and the justification of the ilefault of the Cit\' to conform to and fulfil the conditions of the License, which was to {jive them a rijjht to payment for these lands, and to gi'oc titcni not/iinf^ more. Why at the above estimate (and who wouki doubt the accuracy of Mr. Shanly's estimate .') of nearly ;{j26,ooo, the outlay in works necessarj' to secure payment of the value of the land would liave been ten times as much as the lands were worth, even at a most extravagant valuation ; and so most people would conclude, as I think was the fact and the motive, that the Corporation, in the interest of economy, did well and wisely in rcccdin^j from so expensive a bargain. Hut I must tax your patience a little further upon this part of the subject. , • 10 Not VLi\ loii^ .iflLi- llic- construction of the I'lsijlanadc fn)Mi lirock Street had commenced, (hfficu'.ties arose between the Corporation and its contractors, and these difficulties culminated in the quaslii.i^ of tlio contract (if t:)e 4th January, 1S54. It was, as all will remember, of the utmost public import.mce that the ICastern and Western portions of the tlrand Irunk Railway should be connected at Toronto without delay; and so we hnd that the Kaih' ly Commissioners repicscnted by the Honorable Mr. K ' dy united with the Corporation and the Grand Trunl: Company in devising' some ii'easures for allayinj; the disputes which had arisen, and for securinfj the early re- sumpti'iii and cumpie'.inn of t!vj woiks ; and these efforts resulted in the execution of a second contract made directly wiMi the (Irand Trunk Company, and dated 30th August, 1856, which contract was a^i^iiiii for an l''.si)lanade, commencing at Hrock Street, and iis^ain abandoning all that portion of the ()ri},Mnal jiroposition between Hrock Street and the Qu'-en's Wharf required by the condition^ of the License of Occupation. I advert to this p;irt of the proceedinf;s, because it has bjcn ur^'ed that the presence and in- lli.encc of Mr. Killaly, actinj; for the Railway Commissioners and the Government, and his participa- tion, in i)romotin.L; the contract for "an Lsplanaile, commencin^^ on Hrock Street," was a waiver of the condition of th'; License, wiiich recpiired "a continuous l^splanade from the Queen's Wharf," anil consequently (as Mr. Dalton puts it), that "the License continncs to the City free of trnsts." liut I am letl to iloubt wiiether that learned authority was cpiite as industrious as I have been in hunting' uj) the facts, else he w:Hild have ob.served that lonjj before the contract was entered '.ito with the (ir.i.ui Tnin!. 'Au;;u;.t, 1.S56,)— before Mr. Killaly had any connection whatevei with tlie ma'.tei -and entler the terms of the original contract, executed on the 4th January, US54, the Cor- poration hatl of its own jud^Miieni anil Motion, in its own interest, and without assistance, inter- ference, or reco^Miition of the Government, voluntarily "abandoned" the Esplanade from the Oueen's Wharf, and had voluntarily receded from the conditions of the License. In the ab.sence of any authoritative "waiver" of the conditions of the License — and 1 have never seen or heard (' bad bar.rain, anii in placing- the burthen of Uie works upon us. Hut h .el' that ma\' be. wi- contend that the License has been forfeited, that }' •ou now Have nc') lo:iis stanii in connection with it, and noclaim whatever upcn us : na)-, we go further, and say that as we ha\e constructed the works demandt:d by the License, :Mid have transferred the Railway right of wa\' to the other Railway Companies, as required b\' its terms, we are equitably entitled, and that the Patent ouj^ht to issue to us. Here ni)- statement of the care might stop, but it may be interesting and convenient to }ou that I should discuss some further points in relation to the actual value of the lands; and to whom, if at all, payment should be niaile. Reverting to the Rejiort of Mr. Fleming we find that the area of " land" (as distinguishcil from " land covered w'tli water") orii^inally taken by my Confipany in December, 1851, was 1 1.65 acres, of which 6.2; acres have since been transferred t") the Grand Trunk and Great Western Railways free of charge as a .ight of \\,iv from tjic Queen's Wharf to Brock Street ; leaving r balance of 5.40 acres of the land originally taken and now in possession of my Company. This land I contend, as you will remei.iber, was Oiunancc land, and whatever may be paid for it must, as stated in the. letter of the Secretary of the Hoard of Ordnance of the 9th January, 1852, be paid "into the " Military Chest to the pul '^ • credit." Now the respective Officers of Ordnance reportedj 11 on tile 15th Novcml)cr, 1.S51 that tlicsc lands were worth ^"200 per acre. Hut the laiuls ii, eluded in th/'s valuation C(>m|)rised those east of Urock Street to IVter Strtet, upon which the offices of Oril- nunce and Ordnance scores were then located; and these lands were of nuicii iiijjher value than those west of Ikock Street, which were then an open and broken front, unoccupied by and unavail- able f(V an>' class of buildint^s ; and it can be established by eviilence that $250 or $300 per acre would have been re{,Mrded as a hijih valuation. Hut assuming $500 as an outside fij,'ure, then we have 5.40 acres rit $500 i;er acre - $2,700 ; and taking' the date of the order of the Hoard of Ord- nance (2nd February, \i'^2) as the date of transfer from wliich interest ou^ht to be computed .say to 2nd Februarj', I.S73, we have 2 1 years interest at six per cent, or $3,602; ^nvinij a total sum, princi|)al and interest, of $6,102 for the 5.40 acres taken from the Ordnance. I'his p.iyment if made to anybody must be maile, on the i):ij.{inai terms of the order of the Ho.ird of Ordnance, to the Imperial " Militarj- Chest to the pu!)lic credit," for not only docs the iJcense of ( )ccupation reserve the claims of the Kes|)ecti\ e Officers of '. )rdnance, but the Act 19, Vic- cap. 45, transferring; the Milit;ul)tedly in the Provincial (loverninint, that the License was conditional. I. L'pon \()iir constructing and niaintainin;^ a contimious esplanade from tlu' ( Mveii's W'hi.rf to tin' I'.astward. J. That \<>u shouiil commence that work within one \'ear from the ilate of the License. V That you should .tjrant :-. free rij^ht of way throughout the frontajje, and upon tiie works so constructed to tlie respective Railway Companies. And, 1 say, that inasmuch as you have not complied with any of these conditions, and ha\i' evaded the outlay necessar)- thereto, you are not entitled to an\- ( f the idvanta,L[cs which the Licence mii;lit otherwise ha\e conferretl uixm \'ou. And linall)-, havinij reference to like cases .is bet\\een prisate owners of water lots and tlu' Corporation in r .^^.trd to the lisplanade, 1 contend that inasmuch as my Company has taken upon itself the burthen of the works ilictated bythe ]-icense, -has constructed and is maintaining them, — and lias transferri'd a " right of way " to the other Railway Corporations : has in fact satisfied all the conditions nf tlir License, we are eipiitabi)' entitled to the Patent .and ought to receix'e it. .Such. .Sir. is our \iew of the position which 1 respectfulh- '.resent to the consideration of the Committee; observing that • e are most anxious to reach .some friendly s';ttlemcnt of the question, if such be ])ossil)!e ; for whilst (and 1 say it with all possible ileference) we shall, if need be, defend our rights to the highest appeal to which thoy can be carried, we yet feel that it would be in the public interest as well as to the advantage of my Companv to accomplish such a friendly adjust- ment of llu- (lifticult)' as would avert recourse to litigation ; a ricoursi' we sh uld not fear, but whicii lor mail)' rea-ons we should much regret. I thank >.)u for the patient hearing you have so kindly given me, and shall be happy to the utni.ist of 111)' power to afford you any further explanation or assistance towards an understanding of the case, in the hojjc that together we ma)- perhajis liajiiiiK discover some measure of agreement under wiiich the Patent nia)- at once issue. riu- Cli,iiniian. whilst reserving an)- ex[)ression of o])inion upon the case as presenteil, expressed the thanks nf ilie Committee to Mr. Cumberland for the manner in whicli he had submitted it ; and said that the Committee would at an early date take the whole subject into careful consiileration, and would \)c glad to receive the report of the statement so soon as it hat! been prepared. rile (. omniiitee then adjourned. :lic (late of tile uuiulitioiinl. Oilmen's Whi.rf License. )n the works so ons, ami have ayes wliicli tlie r lots and tlu' lias taken upon in^theni, — and ttisfied all the ,'e it. Jcrntion of the A the question, ecd be, defend \ould be in the 'riendly adjust- fear, but which K I -■ happ}' to the 1 imderstandinj;' e of atjreenient iited, ex'pressetl mitted it ; and consiilevation, rc