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 r^. 165J Eost Main Street 
 
 - ■ -S Rochester, New York UC09 USA 
 
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3ubtic's IRcasons, 
 
 MR. JUSTICE BAIN. 
 12th DecomliLT 1892. 
 
 JlAiy I. 
 
 This suit hiis l.LTii iiistitukMl l,y tho I'laintif-fs with the oljcct iiiuinly, of 
 ol.tainiiij;' a (luclurfitioii tVoia the ('(.iirt that they liave the legal rinht t.. the 
 exclu.siveu.se fur street railway purpo.ses of the whole of the portions of Main 
 .street, Portafre avenue and Kennedy street in the City of Winnipeg, on which 
 they have been and are now oiierating their street railway, and an order fa- 
 nijunction to restrain tla Defendant Company from operating street railways 
 thereon. 
 
 Tlie contention of the Pl.aintiffs, as regards these streets is, tliat hy the 
 By-law of the City of Winnipeg, Xu. 17.s, and tlie agreement made between 
 them and the City in pursuance of this IJy-law they ac(iuired, for the period 
 mentioneil therein the legal right to the exclusive use for street railway purposes 
 of the whole of the portionsof the .streets laterally as well as longitudinally, which 
 they should occupy with their )-ailway, and that having so occupied the portions 
 of these .streets described in the Bill, the Defendant Company must be regarded 
 as trespassers thereon, ami should lie restrained by the Court from interfering 
 with the Plaintitfs' riglit. 
 
 Both the Plaintitis and the Defendant Company, relying on the franchises they 
 have obtained from the City, have invested a large amount of money in building 
 and operating their street railways on Main street and Portage avenue, two of 
 the main thoroughfares of the City : and important interests, both as regards the 
 two C(jmpanies and the City of Winnipeg, are involved in the decision of the 
 (juestions rai.sed by the suit. The main question briefly is, whether or not the 
 Plaintiff's ha\e the exclusive right or monopoly of operating street railways on 
 these streets for the period mentioned in their agreement ? By the Act, .55 Vic, 
 c. 5G, the Provincial Legislature incor[K)i'ated the Defendant Company and in the 
 .same Act validated and confirmed the By-law of the City of Winnipeg, under 
 which the Company has built, and is now operating, railwsiysin the streets of the 
 City. It appears that this Act was passed by the Legislature with the full 
 knowledge that the Plaintiffs were claiming to have the exclusive rights to the 
 whole of the streets they occupied with their railway; and that passage of the 
 Act was in fact op]iosed by the Plaintiffs before a Conunittee of the House. It 
 is provided in Sec. 33 that, 
 
 "Nothing in this Act or in the Schedule thereto . shall in anyway .itroct or talie away any 
 right held In-, or vested In the Winnipeg' Street H-.ulway Conipany [the PlainUffs] If any siicli 
 there be." 
 
jt'Ct laiiinly, of 
 li riylit to the 
 i-tions of Main 
 pej,', on Avliicli 
 1 1 fill onler or 
 itreet railways 
 
 ■;, tliiit by the 
 nmde between 
 for the perioil 
 ilway purposes 
 idinally, whicli 
 id the portions 
 st be regartletl 
 am interferin"- 
 
 'ranchises they 
 ey in laiilding 
 ,venue, two of 
 as regards the 
 ooision of t!ie 
 er or not the 
 L't railways on 
 e Act, 5o ^'ic., 
 my and in tlie 
 iniipeg, under 
 i streets of tlie 
 with the full 
 rights to the 
 passage of the 
 he House. It 
 
 ikc away any 
 ■1 it any sucli 
 
.IciKiF.'s Ueasoxs. 
 
 JJain, J JJiit sul|ji'ct t., tliis ivsLTvatioii, tlic effect of tlie Act is tliiit the Dcfen.l.mt 
 Cniiipiuiy lij.s l,r...|i expressly einpuweivd l,y tliu Lef,nsliiture to construct uiul 
 opemte their street ruilway on Muiii Street and Portfij,'u Avenu.e, on wliich streets 
 the Leo'islatiuv ioiew the PiaintiHs were in occupation with their railway. 
 The Defendants cnntend tliat in tlie fact of the le<rislativu authority, which 
 the Defendant Company has, the Court camiot, or at any I'ate sliould not, 
 I'y tile exerci.-e of its extraordinary jurisdiction prevent the Defendant Coni- 
 Jiany from exercisino- and enjoying' the ri,i,dit which lias lieeii oivcn to it 
 and that the Piaintiirs, if they have the ri^dit they claim, shoubl he left to 
 enforce it in an ordinary action ii;,^ainst the City. I am not prepared to say, 
 however, that if the Plaintiffs can cstahli.sh their riyht, the jurisdiction of the 
 i'r.iui to interfere i.y injunction is taken away, for I apprehend that the rights 
 ffiven liy the Statute to the Defendant Company \Tere in effect given upon the 
 condition that the plaintiff's had not a legal right to prevent the Defendant 
 Company operating a railway in these .streets. Put it is very evident, I think, 
 that before the Court can undertake to render the legislative grant the Defend- 
 ant Comiiany has received wholly nugatory and inefl'ectual, it will have to he 
 .satisfied heyond dtnil it or ((uestion that the Plaintiils have the legal rights they 
 claim. 
 
 Before it can he held that the Plaintiff's have the (exclusive right tliey claim, 
 it must he estalilished, not only that the right has in fact lieen made over and 
 granted to them hy the City, hut further that the conferring of such a right or 
 franchise was v.-ithin the corporate powers of the city : and the .answer of the 
 DefeiaLmts diiectiy challenges hoth these propositions. The Plaintiffs, they say 
 have not received from the City the exclusive right they claim, and if the City 
 did undertake to give such a riglit it had not power to do so and its grant was 
 invalid. 
 
 The expression in the Py-law and Agreement, 
 
 "mi'.l such railway shall liavo the exclusive rifht to such portion of any street or streets 
 as shall bo occupied by such railway " 
 
 is amhiguous, and it may lie a ([uestion of .some (hfliculty to decide what was 
 the extent of the exclusive riglit granted, and I think it will he hetter, before 
 construing the By-ltiw and Agreement, to deal with the tiuestion of tlie power 
 of tlie City to make such an exclusive grant as the Plaintiffs contend it did. If 
 I come to the conclusion that the City did go beyond its jxiwers if it gave the 
 right contended for, then it will not be necessary for me to undertake to construe 
 the By-law and Agreement. 
 
 Assuming, then, that the City did undertake to confer upon the Plaintiffs 
 
, till' D( Tcndiint 
 ) construct uixl 
 nil wliicli stroots 
 I tlit'ir niilway. 
 uithority, which 
 fitc shouM not, 
 
 DrlVlKhlllt Coiii- 
 cn u'ivfii til it 
 ■ mill 1)0 left to 
 prepared to say, 
 [•isdiction oi' the 
 I that the rights 
 j^ivi'u upon the 
 tlir J)el'enilant 
 •vidi'ut, I tlunk, 
 lit tlie DetVnd- 
 I'ill have to lie 
 ;,'al I'ights tliey 
 
 Ljlit they claim, 
 iiado over and 
 uch a right or 
 
 answor of the 
 intili's, tliey say 
 ud if the City 
 
 its (fraut was 
 
 trect or slrootis 
 
 cido what was 
 t)ctter, before 
 
 n of the power 
 
 tend it did. If 
 if it gave the 
 
 ike to construe 
 
 the Plaintiffk 
 
Baiv. J. 
 
 JuKOE's Reasons. 
 
 tl... oxclusive riKht tl.c-y clai.... tlu- 1 )..f.,ulant.s urge that the City could not 
 It-Kally jriv.. this ri-ht unless it had .-xprnss authority from the Legislature to do 
 sn. Th... PlaintiflV reply to this is that the express authority the Defendants 
 '•'■••"'u.,1 is found iu the City charter and in the i'laintitfV Act of Incorporation, 
 and furthennore they say that as the stn.ets were veste.I in the City l.y its 
 charter, it could give the exclusive right to use them, and that, at all events, as 
 the Legislature has not expressly, or by necessary implication .leprived the City 
 of the power to give this exclusive right, the circumstances are such that, it must 
 be deemed to have had the p.nver as incident to the power expressly given. 
 
 There can be no .,uestion of the City having had full power to enter into an 
 Agreement with the PlaintitTs authorizing then, to build and operate street rail- 
 ways on all or any of the streets of the ( 'ity. The provisions in section 1 54 of 
 the City Charter woul.l in then.selves give this power, an.l the Plaintitfs' Act of 
 Incorporation expressly authorizes the City 
 
 "ToKmnlpermisHloMtothL.H,u,lC,„np,inytoconHtnicnholrrallvvnj>,nsnfon-nm • • . 
 
 7mnCr' 'T° ""."" """" "" "'" """""'■ •"•^""■"'^ "■■ ""»• ""' "' • '"■"" '- 'h^" »-Pose. 
 P nsuch con... ,o,.,uu. for such perio,. or period, a. nny .,o respectively a^reC upon be, ween 
 the Company ami Uic said I'll y," 
 
 This is express authority for the City to allow the Comi-any to use its 
 streets, hut while the City n.ight have ahstained f.-o,„ allowing anyone else to 
 use the.n for that pu.-po,se,Itiml nothing h.,-e or in the City Charter that ex- 
 pressly authorizes the City to agree with the IMaintitis that they are to have the 
 exclusive right to the ,.se of the whole width of the streets, a..d that enables it to 
 put it out of its power to allow ..ther persons oi- companies to use other portions 
 of these streets for street railway purposes. The words 
 
 " upon such condition," 
 
 to Which Mr. Howell referred, certahily cannot he taken either to enlarge the 
 Legislative grant to the Plaintiffs or to confei- authority upon the City t.renter 
 into any agreement with the Plaintiffs that would he l)eyond its corporate 
 powers. 
 
 Main Street trnd Portage Avenue tire portions of the old r.)tids known tis tlie 
 "Great Highways" thtit were laid out l,y the Council of A.ssinihoia before the 
 transfer of the country to Canada, tmd these streets, as they now exist, follow, 
 with some slight deviations, the line of these great highways. On the- surrender 
 of the country up to Canadti by the Hu.lson's Bay Company, the soil in these 
 highways became vested in the Dominion Government, and liy Cap. 49 R. S. C. 
 it was provided that the Governor-General-in-Council might by Ordcr-in-Council 
 transfer to the Province the public thoroughfares or rotuls thtit existed tis such at 
 the date of the tnmsfe.-. It appetirs that by Order-in-Counoil dated the 8,-d of 
 
tlie City could not 
 ho Lt'gi.slftture to ilo 
 rity tlie l^efeixlants 
 ct of Incorporation, 
 in the City hy its 
 lat, at all events, as 
 
 II ileprivod the City 
 re sucli that, it must 
 cprossly given. 
 
 vvei- to enter into an 
 1 operate street rail- 
 Qs in section 154 of 
 ho Plaintiff's' Act of 
 
 csftid • • • 
 
 hem for thai piirpoee, 
 iKrecd upon between 
 
 'iiini)any to use its 
 in^ anyone else to 
 y Chaiter that ex- 
 ey are to have the 
 
 III that enables it to 
 use otlier portions 
 
 lier to enlarge the 
 
 the City to enter 
 
 ,'on(l its corporate 
 
 oads known as tlie 
 I'nilioia before the 
 now exist, follow, 
 On the surrender 
 , the soil in these 
 y Cap. 49 R. S. C. 
 y Order-in-Council 
 i existed as such at 
 i! dated the Snl of 
 
Bain, J. 
 
 Ji'tMiK's Reasons. 
 
 F.l.nmi-y, l.s,s,S. Main Str.rt was s,. tni..>f..riv,|, l,„t it is ,„,t sl,.,\v., timt I'.-rta;,',- 
 
 Avrnu.. Imis rv.T 1,....,, tiai.sfrnv,!. Main St. t for al.ait Imlf a mil,. ,„• .s<., runs 
 
 tlmni^'li Lnt l.ii, tl,r I'arisl, ,,f St, Juh,,, usually kii-mii a.s tl... Kudsnu's Hay 
 ("-inl'H.iysKi.smv, a.Ml ...arly all nf t|,r |,n,ti.a, ..f I'-ata;;.. AvMur c.ccni.i...| 
 l-y tlif I'.aiiitlHs is ill this luf aii.l ii. tlir -nmt tVm,, the ("n.wii to tlic Hu.l- 
 son's Hay Company, laitlMT stm-t is vxvrytr,] ,„• ,vs.ia...|. Tins PaUnt was 
 issue, 1 licfoic- till' ilatcot" tlif City Cliartcr ><( \HS2. 
 
 My section l.Vx.r tlio City ( "liarU-r of 1S,S2, it is j.rovi.lv.l tImt 
 
 "cvory puUlIf nm.l.Hlr,.,.,. ulo . ,halH.>. v.,..,! i„ Ih.. (My, .uLirct to linj riKhU in th. .oil, which 
 Iho Imlh IdimU who htiil out xiii li road, Hiicfl, olc, PL'^tT* (.■(!." 
 
 Th..,, in th.' following,' section it is provi,l,.,l that all persons havin- nm.le any 
 reservation in any stret-t shall api.ly within six months for a settlement or 
 adjustment of such claim, otherwise such claim shall cease to exist. Tiie efFect 
 of these provisions is, it is argu.Ml, that the actual ownership of the streets was 
 
 vested in the City, au.l thereftm., that the City could dispose of them or grant 
 any rights and privileges in them it saw fit. 
 
 It is clear eimugh, I think, that in saying the streets, etc., should lie vested 
 in the City, tiie Legislature intended that some jiropeity in the actual soil should 
 vest in the City. But it is e.|ually clear, I think, that whatever that property 
 was, the City aciuircd and held it only as for a street and for the use and pur- 
 poses of the pul.lic, and thi.t it could not dispose of or deal with it in any 
 manner not autluu-ized l.y its charter. Like most of the provisions of our various 
 Acts dealing with Municipalities this section 155 was taken from the Ontario 
 Municipal Act, and its etTect was discussed in the ca.se of Sarnia v. Great Western 
 Railway C<»mpany, 21 U. C. Q. B., 5<), which .lecided that the Plaintiffs, an in- 
 corporated town, could not maintain an action of ejectment against the Defend- 
 ants for portions of the streets of the Town. If the streets were vested in the 
 Town, as was contended, it may be open to .louht, perhaps, if the actual decision 
 in the case was correct ( Vespra v. Cook, 2(! U. C. C. P., ] 892), hut I refer to the case 
 because I think the following remarks made by McLean, J., very well describe 
 the nature of the property that is vested in a Municipality by the section in: 
 question. 
 
 "That8ecUon,"ho says. •• I thh.k <loe« vest intho Municip,UiUe. tho flevoral «treot8 and 
 roads wahm Iheir borders, but it does not necessarily follow that it convoys such a freehold and 
 estate us will enable a Municipality to maintain ejectment -every individual intho community 
 has an equal right to a pui)lic street or a road, and the Municpalities cannot bo considered as 
 proprietors, and so entitled to control the possession any more than any other person or corporation 
 or person interested in the streets or liighways. The property vested in the Jlunieipality is a. 
 (jualifled property, to be held and exercised for the benoSt of the whole body of the corporation. 
 ' They, so far, m.-\y be said .0 hold the freehold, but it is only as trustee for the public, 
 and notby virtue of any title which co.ifers a riRht f exclusive possession, " 
 
'. >liii\vii that I'ortii^'u 
 lilt' a mill' 111* sn, runs 
 IS the Ifijilsuii's liny 
 
 LJI' AviMUlt' nci'lljiicd 
 
 ' Cl'iiuii t(i the Hiul- 
 Tliis I'litciit was 
 
 <l tliut 
 
 (lu.s ill till' r.oll, which 
 
 liiiviii;,' iMiuli' any 
 
 for a si'ttleiiieiit or 
 
 ' .'Xist. Til., effect 
 
 of the streets was 
 
 of thoiii ur ((raut 
 
 1?., should ho Vested 
 If actual soil should 
 ever that property 
 r the use and pur- 
 sal with it in any 
 sions of our various 
 from the Ontario 
 ia V. Great Western 
 e Plaintiffs, an iu- 
 j,'ainst the Defend- 
 were vested in the 
 the actual decisioa 
 1 1 refer to the case 
 .ery well describe 
 by the section in' 
 
 iuvorftl Klreots nnd 
 icli n freehold and 
 in the community 
 t be conKidorcd as 
 rson or CDrpdration 
 J Jlunicipalily is a 
 )f the corporation. 
 stec for the public, 
 

 Rain. J. 
 
 .Ii'due's Reasons. 
 
 NotwitlistfiiKliiiy, tlifii, thi\t t!if projHTty in tlic strcots, iis strci'ts, was 
 vt'steil in t}ie City, I t'link tlic iiowtr of tlic City to cji.spust' of or doal with the 
 stroi'ts was strictly limited I>y its corporate powers. 
 
 And T ciiiniot say that I find anything tliat really eontlicts with this view in 
 the case of Covcniale v. (^harlton, -4. Q, H. D,, 104., whieh was strongly pressed on 
 uie hy Mr. How(>ll. In that ease the court were considering u provision of the 
 Piihlic Health Act 
 
 "Mult nil si reel '^ -\\a\\ vi'.-t. in mid lie iiiiiliT tlicooiilnil of. I lie iirlmii iiiilliorily." 
 
 and what the case decided was, as James L. ,1., .said in KoHs v. St. Oeorge, 4. Ch. 
 1). 7.S5. 
 
 "IliiU wiiiii'lliinx niiivo lliiiii iin cnsMtMi'iit juisncmI lollii' Iciivil lioanl. iinil llinl tlu'.v Imil Komo 
 rinlilsiif pniprrly in. iiTul on iiiiil In rospccl of llir ~oil uliirli woiiM cnlillo llii'niiis owm'iv Ki Iirlnn 
 a posscssor.v Ml lion " 
 
 The decision too. was given on a special case stated hy two private individuals, 
 
 and the iiuestioii whether the grant of the pastinage on the road l>y the Local 
 
 Hoard to till' I'Inintitr was within the powers of the jinnrd, was in no way rai.scd 
 
 liy the cast', or toiiehed upon hy the Court. In Wandsworth lioard of Works v. 
 
 Cnited Telephone (\anpany, 13 Q. H. D.. iU)|. the Master of the H.. lis .speaking 
 
 of this case and of the section in iinesti(ai said 
 
 " M.v own vii'W ;il till' linio WMH " " ' it iHlsscil llii' I'l'OIUTt .v sous lo i'MmIiIc tlio 
 
 I.ociil Iloiml an far ns iui.vlio(l.v I'lsc thi\n till" initillr wan coiu-ornod to do wiili it what any othor 
 owner than th«puhlio nilKht do. Thcro ndKht boa broaoli of llu'ir duty tothepnblic hut with 
 ri'iK-ard to anybody elm than tin- public Ibcy could do with it as any otlicr owner could do. Ibat is 
 without infriuKinKtbiit which was their primaryduljr, nauu'ly lo \ivo\i II as a street." 
 
 The " street" in miestion was, it a])pears, a grei'n lane in a rural district, and 
 till- exclusive grant that had heeii made was that of the pasturage idong the sides 
 of the lane for a period of seven moiith.s ; aid e\-ei! if it htul heen ludd that the 
 Local Hoanl ha<l authority to make sueii a grant I could hardly consider the 
 case decisive of the one hefore niiv 
 
 On this contention of the I'laintitl's I must hold then, tiiat the property the 
 City had in tl*e streets wmild not. i:i it.self. authorize it to give the Plaintitls the 
 exclusive right they claim, unle.ss it otherwise appears that it was the intention 
 of the Legislature that this was a dis)iosition of the stretits that the City should 
 ho authorized to mid<e. I Iiiiac already held that there is no such authority 
 expiessiy gi\en, and it remains now for me to consider if the intention of the 
 Legislature that the City was to have this authority can he inferred or implied. 
 
 The weight of authority seems to show that at Common Law a corporation 
 co\dd hind itself to do luiything to which a natural person could hind himself, and 
 deal with its property as a natund })er.st)n might deal with his own ; and in deal- 
 ing with corporations created hy, or under, acts of parliament for iletinite purposes 
 
 i 
 
!is strt'i'ts, wns 
 or (leal with the 
 
 ivitli tliis vii>w in 
 
 niifjly pressed on 
 
 provision of the 
 
 horily," 
 
 St. Ocnrrji., 4 Ch. 
 
 ml llu'V Imd koiiio 
 s owiu'iv 1(1 liriiiK 
 
 vfitc iiiiiivichmls, 
 111 liy till' Local 
 in no way raised 
 lanl of Works v. 
 I' KoIIs speakinjj; 
 
 iOiiH Id ciiiibU' tho 
 
 what niiy oilier 
 
 [> piiblk' 1)111 with 
 
 r ooulil <lo, tlintiii 
 
 'Ct." 
 
 •ural district, and 
 H' alonj; the sides 
 eon held that the 
 rdlv consider the 
 
 the property the 
 the i'liiintitfs the 
 ,as tlie intention 
 
 the City should 
 o such authority 
 
 intention of tlie 
 n'red or implied, 
 iiiw a corporation 
 hind himself, and 
 wii ; and in deal- 
 definite purposes 
 
Bain, J. 
 
 JuDfJE's Reasons. 
 
 and witli power.s for effecting that purpose, there are evidently two ways in which 
 the powers of sucli Corporations may he measured. One is, that it may be pre- 
 sumed that the transactions of such Corporations are valid, and that tliey will he 
 lield to he invalid only if it can be shown that the Legislature has deprived tliem, 
 either expressly, or by necessary implication, of the power to enter into such 
 transactions. The other is that their transactions will be held to be valid only if 
 it appears they were authorized either expressly or by nece.ssary implication, 
 Mr. Howell urged that the former view is the one that prevails in the English 
 Courts, but, as has been pointed out by a learned author (Pollock on Contracts, 
 p. 117), the decision of the Hou.se of Lords in Ashbury Ry. Carriage Co. v. Riche, 
 L. R. 7 H. L. 653, has made the conflict between the two series much less sensible 
 in practice than might be expected ; and it seems to me, indeed, that this decision 
 goes very far to establish that for all practical purposes the theory of limited 
 capacity is the one that is to prevail. 
 
 In Attorney-General vs. Great Eastern Railway Company, 5 App. Cas. 473, 
 Lord Blackburn, speaking of Ashbury vs. Riche, said : 
 
 "That case appears to me to decide, at all events this, that where there Is an Act of Parlia- 
 ment creating a corporation for a particular purpose, and Kivint? its power for that particular 
 piirpoBe, what it does not expressly, or Impliedly authorize, is to be taken to he prohibited. 
 
 In the later case of Baroness Wenlock vs. The River Dee Company, 10 Appeal 
 Cases 354, this principle was again confirmed, and ajiplied to the great loss of the 
 Plaintifl", and it was held to apply to all Corporations created by Statute for 
 particular purposes. As Lord Watson said, p. 362, 
 
 " Whenever a corporation is created by Act of Parliament with reference to the purposee of 
 the Act and solely with a view to carrying Hiese provisions into execution, I am of opinion not 
 only that the objects which the corporation may legitimately pursue must be ascertained from the 
 Act itself, but that the powers which the corporation may lawfully use in furtherance of these 
 objects must either be expressly conferred or derived from Its pro\ isions." 
 
 The principles then upon which I must decide the question l)efore me are thus 
 clearly and authoritatively prescribed, but the difficulty in the case lies in the 
 application of the principles to the facts, and it so happens that there are no 
 cases, at least that I have been referred to, in which the English Courts have had 
 to decide a question of tais kind upon a state of tacts, which is at all similar to 
 that presented here. 
 
 It is a long-eBtal)lished principle of English law, that 
 
 " when the law doth gi\ j anything to one, it giveth impliedly whatever is necessary for the 
 taking and enjoying the same," 
 
 Co. Liett 56., and in the case of the Attorney-General v. Great Eastern Railway 
 Company that I have I'eferred to, I find Lord Selborne thus defining in what 
 spirit the principle laid down in the Ashbury ca.so should be applied ; 
 
,' two ways in which 
 timt it may be pre- 
 nd that tliey will be 
 ? hns deprived them, 
 to enter into such 
 d to be valid only if 
 cessary implication, 
 •ails in the English 
 )llGck on Contracts, 
 arriage Co, v. Riche, 
 's much less sensible 
 id, that this decision 
 e theory of limited 
 
 iiy, 5 App. Cas. 473, 
 
 •0 Is nn Act of Parlla- 
 Tfor that particular 
 he prohibited. 
 
 -onipany, 10 Appeal 
 the great loss of the 
 ted by Statute for 
 
 nee to the purpoHes of 
 I am of opinioa not 
 ascertained from the 
 furtherance of these 
 
 )n before me are thus 
 the case lies in the 
 that there are no 
 sh Courts have had 
 is at all similar to 
 
 r ie necessary for the 
 
 it Eastern Railway 
 IS defining in what 
 ipplied : 
 
 i 
 1 
 
Bain, J. 
 
 Ji'Dge's Reasons. 
 
 "I ai,-ro(.' with Lonl '"■;tl( c .lunifs," liusiiys, "thiit thiw doctrine ouRht to bo reasonably and 
 not iinreafoiinbly undorHtood and applied, and that whatever may bo fairly regarded as incidental 
 to or conseciinntial upon tliosc lliinifs which tlie LoKislaturo liaHauthorizcd, oiiifht not (unless ox- 
 prossdy prohibited) to be held bj judicial construction to bo ultra vires." 
 
 Ill tilt,' later cukc of Small v. Smith, 10 App. Cas. 129, Lord Selborno again 
 said : 
 
 '• I entirely adhere to what was said in this hou.so in tho cvso of Attorney (Joneral v. Great 
 Kast(^rn Hallway Company, that when you have KOt a main purpose oxprossod and ample authority 
 Kivon to ellectiiato that main purpose, thiuKs which aro incidental to it, and which may reasonably 
 and properly he done, and aKiiinsl which no expressed prohibition is found, may and ou^ht. prima 
 facie to follow from the authority for ctfectiiatinK the main purpose by proper and general means." 
 
 l>ut hu also points out tluit 
 
 " the grounds of such an implication must be found in tho nature of the situation, and the 
 reasonable conserjuences of that situation, and not in what a man wltomay do what ho pleases with 
 his own may. or nuiy not consider proi)c'. to do under such cireumstanccs." 
 
 Appl^'inii: these principles then, what I must considei- is, was there anything 
 in the nature of the situati(jn and in the circumstances of the case from which it 
 is a lejfitimate iind reasonable inference that when the Legislature authorized the 
 City to arrange for the construction of screet lailways and to make an agreement 
 with the Plaintiffs to that end, it also intended that the City might agree with the 
 Plaintiti's that thej' alone ami that none Init themselves should be able to obtain 
 the privilege of using the street.-? for street railwa\' purposes for the period 
 limited. 
 
 Tho Plaintiffs believing, doubtless, that the right or franchise which they 
 received from the City was an exclusive one for at least 20 years, have invested 
 a large sum of money in the construction of their several lines of railway, and 
 in providing and maintaining the necessary rolling stock therefor, and as far as 
 the evidence shows they have carried out the terms of the Agreement and have 
 done nothing to forfeit the rights and privileges the City conferred upon them- 
 The operation of the Defendant Company's Railway, it also appears, will have 
 the effect of materially diminishing the value of the Plaintiff's property; and 
 as the circumstances of the case are presented in the evidence I see no reason 
 why the Court should hesitate to extend its assistance to the Plaintiffs if by 
 legitimate inference it can come to the conclusion that it was the intention of the 
 Legislature that the franchise which the City was authorized to grant might 
 also be an exclusive one. But I am bound to say that, in my opinion, the 
 Plaintiffs have not shown anything in tlie situation or circumstances that existed 
 when the ajrreement was made, that would make it what has been termed a 
 
 "potential necessity" 
 
 that the franchise should be exclusive or from vvhi(\ T can, in any way legiti- 
 
 I 
 
ht to bo rei\soimbly and 
 ■ resarclud iis inciilcntiil 
 I, oiitflil not (unless ox- 
 
 Lord Selborne ajjain 
 
 nrneyClencral v. 'treat 
 odand ample authority 
 '. which may reasonably 
 may and ouf<lit. prima 
 )or and general means." 
 
 the situation, and the 
 lo what ho pleases with 
 
 s, was there anything 
 lie case from which it 
 lature autliorizotl the 
 make an agreement 
 might agree with the 
 ikl be able to obtain 
 (OSes for the period 
 
 ranchise which they 
 years, have invested 
 ines of railway, and 
 lerefor, and as far as 
 Agreement and have 
 onferred upon them, 
 io appears, will have 
 titf 's property ; and 
 jnce I see no reason 
 ) the Plaintiffs if by 
 s the intention of the 
 ized to grant might 
 in my opinion, the 
 instances that existed 
 as been termed a 
 
 1, in any way legiti- 
 
Ji'DiiK's Reasons. 
 
 Bai.V, J. inntfly iiitVr tlmt it was iiitm.Ird l,y the U-crisIatuiv tlmt it sIk.uM lu- oxclusivo. 
 At tlu' time it was eiitnvd int.., Wimiipt-ir was a now and -rruwiii!,' town witii a 
 population ..f alMnifc 25,000, and it is well known that at tlmt time it was expect- 
 ed tlie popnlatinn Av.aild increase much more rapidly than it has. .Main .street 
 mul I'ortaf-e ave.uie are streets of unusual width, havin<,r a uniform width of 
 132 foot, and tl... other streets that have been reforrod to liave a. width of 00 
 foot. At this time none of the streets liml boon paved, and it is shown that in 
 the Sprincr and Fall and in wet weather the streets often became ahncst impas- 
 sable for ordinary vehicles. Tiiose are about the only facts sliown that bear upon 
 tlio (jucstion: an.l while it may be inferre.l from thom that the City woul.l be 
 desirous of liaviu^ street railways introduced they fail to suggest to me any such 
 conclusion as that it was nece.ssarj-, in order that the City nnV'ht come to an 
 agreement with the Plaintitis to build and operate street railways, it should be 
 able to give the Plaintifl's the exclusive right and put it out of its power for .so 
 long a period of twenty years to agree to give a similar right to others should it 
 afterwards pr<)\e to be to the public benefit to do .so. The width of the streets, 
 .-•specially of the two I am immediately dealing with, is such that it is clearly 
 not physically impossible, or even highly inconvenient, or necessarily dangerous 
 for two rival c.anpanies to maintain and operate street railways upon them; so 
 it cannot be .said that the franchise which the Plaintiffs obtained was one that 
 has .sometimes been called a natural monopoly, that is, one in which competition 
 would be physically impossible, or nece.s.sarily destructive. And there is nothintr 
 to show either, that at the time the agreement was made the City, on account of 
 its inability to induce the Plaintiffs, or others, to un.lertake the construction of 
 street railways, had either t(j agree to give the Plaintiffs a monopoly or to do 
 withou* 'Uvays ; and I cannot find that from considerations of this sort or any 
 <.ther, itM.., necessary that the City .should have the power to give the ex- 
 clusive right in order that it might l)e ab^o to carry into effect the powers granted 
 to it. 
 
 Then, again, the right the Plaintiffs claim they acquired from the City is in 
 the nature of a monopoly. It is true that the right of laying down tracks and 
 of operating railways in the public streets is not a right connnon to all, and the 
 right to do this must come directly, or indirectly, from the Legislature. But 
 others as well as the Plaintiffs might wish to acfjuire this right, and against all such, 
 if they have what they claim, have a practical monopoly. Had the Legislature 
 intended that the Plaintiffs were to be authorized to obtain such a monopoly in 
 the streets of Winnipeg it would have been veiy easy when they were specially 
 
it sIkpuM lie cxclusivo. 
 L,'rn\viiiif town witli a 
 at time it was expuct- 
 I it has. Main .street 
 
 a uiiit'onu width of 
 have ;l width of (iO 
 1 it is sliown tliat in 
 ecame alino.st iinpas- 
 shown that hoar upon 
 ; the City would lie 
 igf;c'st to nie any such 
 y iniglit come to an 
 iiilways, it slionld be 
 
 of its power for so 
 :Iit to others sliould it 
 width of the streets, 
 ich that it is clearly 
 lecessarily (hmgerous 
 vays upon tliem ; so 
 tained was one that 
 1 wliich competition 
 A.nd there is nothintr 
 -i City, on account of 
 ! the constructien of 
 
 monopoly or to do 
 IS of this sort or any 
 :er to pve the ex- 
 t the powers granted 
 
 from the City is in 
 ig ilown tracks and 
 mon to all, and the 
 e Legislature. But 
 , and against all such, 
 Had the Legislature 
 such a monopoly in 
 the}' were specially 
 
Ji'DfiE's Reason's. 
 
 Hafn, .1 'li'ivliii^' witli tlir uiattci- to have said so; luit as they have not said so, the inten- 
 tion tluit thi'v niij4ht olitain sucli a inonopcjly is not to lit- iuiputeil without good 
 reason for so doin^'. 
 
 The section oF tlie City Ciiarter tliut authorizes the City or tlie Council to 
 pass by-hiws for the construction of street railways also authorizes l)y-laws for 
 regulatincr and ndscrning them when they are constructed: and it was urged 
 that this power to regulate implied a power to restrict and limit, and that a h}-- 
 law limiting thf rii;ht to use the streets to the Plaintirt's alone is not unreason- 
 able, and therefore is not ultra vires. It is quite true that a power to regulate, 
 nuist in certain cases involve a power not only to limit, hut also to prohibit, 
 l)ecause if it did not the power would, in many cases be found to be nugatory 
 If the public benetit sought to be obtained in giving a Municipality power to 
 regulate can only be obtained by prohibition, then a By-law going that length 
 may be held to lie unreasonable and ultra vin-K Slattory v. Naylor, 13 App. 
 Cas., 44G. But the circumstajices here, as we have seen, do not show any neces- 
 sity for limiting thf right to use the streets cxclusivoly to the Plaintitis. The 
 power to govern and regulate the operation of street railways after they have 
 been constructed is one that is absolutely necessnry that the City should have. 
 The word " regulate " in the sub-section lias a well-detined meaning, and I think 
 the Legislature never intended in using that word that it was to be implied from 
 it that the City might give to one person or company the monopoly of using the 
 streets for a long or indefinite term. 
 
 In England until at least the passing of the Municipal Acts in later years, 
 the powers of incorporated towns and cities rested on an entirely different basis 
 from those of municipal corporations in tliis Province. Here, and in the Pro- 
 vince of Ontario, from which our municipal system is closely copied, municipali- 
 ties have been established directly by the Legislature for the sole purpose of 
 more convenient!}' carrying out the details of certain portions of civil govern- 
 ment specially delegated to them, and nmnicipal corporations exist only for the 
 purposes for whicli they were created. This is also the theory and system f)f 
 municipal government that exists in, I think all the states of the Unit»d States, 
 and as has been pointed out by Mr. Bryce in liis work on Ultra Vires, there is no 
 country in which there are so manj- corporations or in which the law, as to the 
 powers of corporations, municipalities and nmnicipal and others has been so 
 much discussed as in the United States. Both in this Court and in the Courts 
 of Ontario when (juestions of municipal law are under discussion decisions of the 
 Courts in the United States, both Federal and State, have always been recognized 
 
Kit said so, tlie iiiten- 
 iiputed without good 
 
 ty or tlif (.'ouncil to 
 iithorizes liydaws for 
 ; and it was urged 
 limit, and that a bj'- 
 done i.s not unreason- 
 a power to regulate, 
 hut also to prohibit, 
 und to Vie nugatory 
 unicipality power to 
 w f'oing that lengtii 
 ry V. Naylor, 18 App. 
 not show any neces- 
 the Plaintiffs, The 
 ways after they have 
 he City should have, 
 meaning, and I think 
 as to be implied from 
 lonopoly of using the 
 
 d Acts in later years, 
 iitircly ditterent basis 
 Here, and in the Pro- 
 y copied, municipali- 
 the sole purpose of 
 tions of civil govern- 
 is exist only for the 
 lieory and system of 
 )f the Unitad States, 
 Itra Vires, there is no 
 ;eh the law, as to the 
 1 others has been so 
 urt and in the Courts 
 ission decisions of the 
 Iways been recognized 
 
JiDoE's Ueasoxh. 
 
 iJAiN, J. us iii4ructivi', .in I I thliil< I nmy say tliiit wIhmi tlicy An nut conMict witli princi- 
 jilcs ostalilislinl liy ilreisiniis of tlio Eii^^lish Courts tlicy linvo vmy yoiuTully lit'on 
 luloptetl rviul followi-'d. 
 
 Considrriiij,' tlir fucts of the cas»' in tlio lij,'lit of anthoritiitivf principles of 
 Eni,'lisli law 1 liiivr conic to the conclusion that I cannot liy wliat I would con- 
 sider a le<;itiniate inffi'cnce infer fnmi these facts that it was the implied inten- 
 tion I'f the Leirisliitiu'e tliat the City \vas to have; power to j,Mve tlie I'laintiH's 
 the exclusive use of the streets, ami it is not necessary, therefore, that I should 
 consider at any len/^th the numerous decisions of the United States Courts, 
 hotli State and F'Ml..'ral that bear upon the (juestion ; and it is the less necessary 
 l)ecauso Mr. Howell fully conceded in the arj^ument that the whole weight of 
 these cases is again.st the Plaintiffs' contention. 
 
 The prineijjle of construction that these Courts apply in construing? Legisla- 
 tive ^'rants to corporations is thus laid down hy the Supreme C(airt in Minturn v. 
 Larue, 23 How. V.in, 
 
 "It is n well fiotllod rulo of construction of ^rnnts bj- tlie I.cKisliiUiro to corporations, 
 wluitlicrpnblicor private, that only sucli powers and rights cim bo exercised iimler tlieni us lire 
 cleiu-ly coiiipreliindi'd wllliin tlie words of the Act, or derived tlierefroin by neeessiiry tnipllcutlon. 
 rcKiird boin^' l>Md In tlie object of thcgnint. Any lUiibiKHity or doubt arising out of tbu terms used 
 by the LcKlslaluiv mu>t be resolved in favor of the public." 
 
 And dealinfj particularly with Municipal Corporations Jud<;e Dillon, in his well- 
 known work on Municipal Corporations at section 89 uses the following lanrfuage 
 that htis more than once hoen expressly adopted l>y the Courts: 
 
 "Municipal Corporations," lie says, "can exercise tlie following powers nnd no other; 
 First. tliosuKranled in express terms. Second, those necessarily and fairly implied In, or incidental 
 to the powers expressly granted. Tliird, tliose essential to the declared objects nnd purposes of tlio 
 corporation, iiol simply convenient, but indispensable. Any fair, reasonable doubt concerninK Uie 
 existence of power is resolved by tlie Courts aKainst the corporation, and tlie power is denied." 
 
 And in such cases as Minturn v. Larue, above referred to, Fniining vs. Gregorie, 
 57 U. S., 523, the State v. Cincinatti, IS Ohio State R., 2G4. Parkersburg Gas 
 Company v. Farlcersburg, S. E. R. C.50, Saginaw Gas Light Company v. Saginaw, 
 Fed. Reporter \'ol. 2S, No. 10, 529 and many others that might be cited the 
 above principles have l)een tipplied with the result that claims for exclusive right 
 in public franchises resting on the Mnplied powers of municipal corporations to 
 grant such fnuichises have been denied. As was said in one of these cases 
 nothing will be intended from a legislative grant to a municipal corporation. 
 
 If I were able to regard the City tis having been in the position of a man 
 who could do with his own as he plea.sed, I cannot say that I could see anything 
 unreasonable in its undertaking to give the Plaintitis the monopoly of the streets for 
 twenty years, in consideration of the Plaintitts undertaking to introduce and 
 operate street railways. But that is a view of the City's position that I am 
 
 10 
 
 1 
 
, cmiHict with princi- 
 -' vtay gciuTiilly Itoeu 
 
 ■itativi- principles of 
 whiit I wnuld con- 
 is tin- iiiiplieil iiftun- 
 to <(ive tlio PliiintlHs 
 ivt'oro, tlmt I slioultl 
 niteil Stivtos C'onrts, 
 ; is tlic loss necessary 
 tiic wliolf weifjht of 
 
 II c(>nstniin<; Legislii- 
 ! Court in Minturn v. 
 
 liilure to cori)onillon^, 
 KC'd iiiulcr Ilium iih arc 
 • necuswiry Impllcutlon. 
 B out of tliu tomio UHCil 
 
 ^e Dillon, in his woil- 
 lic following ltingua(,fe 
 rts: 
 
 powers and no other: 
 niplii'd in. or Inciduntnl 
 jctrt and purposes of the 
 le doubt concerninK the 
 10 power is denied." 
 
 i'aiining vs. Gregorio, 
 i. Parkorsbm'<( Gas 
 Company v. Saginaw, 
 
 iiiiglit be cited the 
 ins for exclusive right 
 licipal corporations to 
 
 one of these cases 
 jipal corporation. 
 le position of a man 
 ; I could .see anj'thing 
 opoly of the streets for 
 ing to introduce anvl 
 •'s position that T Am 
 
Judue's Ueah(jn,s. 
 
 Main, J cluarly invclmU 4 I'lom takiii;^. It c<miIiI act in tlio iniittcr only as it was autho- 
 i/.t'»l In <li) liy till' Lri,'iMluturu, anil I cannot fiml that tin- Lc^i.slatun' cither 
 oxpruHsly or \>y itnputation aiithorizeil it to f,'ivf the I'laintiflH the monopoly of 
 the \vliol(' tfH t\\' trfff- / lliat it waa necessary tJuit the City sliould have given 
 tlii« (Hrmopoly , iiA't: it nn'jfbi cany into effect tlu! authority that it tliil 
 
 receive || I a»a righl •< this view, tlicit ihc FlftintiH's carniot have the lcj,'al ri^'ht 
 they clrtim; and luivinjj fiwled to estahlish their legal rijrht they cannot ho entitled 
 to an iujuiiction, 
 
 f luav* couhidcred the case as it specially refers to Main Street and Portft{,'e 
 Avenue- ; \htit if fhe Plaintifl's are not entitled t' >ui injunction, 'is to these streets 
 they cannot, of cuur^i', he entitled to one as to thi other street!* mentioned in the 
 Hill. 
 
 Even if it could tie held that the City had authi>rity and power to j^ivt; the 
 i'laintifls the mijuopoly they claim that would still have to face the contention of 
 the ])efendants, that the City tlid not in fact give them this monopoly. The 
 exclusive right mentioned in the By-law and the Agreement, the Defendants say, is 
 limited to the portion of the street actually occupied by the railway, and further 
 to a railway operated hy the force or power f)f animals. However, af I have 
 decided against the I'laintiffs in the other branch of the case, it is not necessary 
 that I should express any opinion as to what is the proper construction of the 
 By-law and Agreement. 
 
 It appears that the line or tracks of the Defendant Company's railway cross 
 the PlaintiH's' tracks in sevoral places on Main Street and Portage Avenue ; and 
 the Plaintiffs' F>ill contains a prayer that the Defendant Company may be 
 restrained from crossing the Plaintirts' tracks, except for the pui-pose of crossing 
 the same to run upon the streets which are not occupied by the Plaintifi's, and 
 which the Plaintitls ilo not wish to occupy. But if the Defendant Company has 
 the right to lay d(jwn and operate its railway on the.se streets, section 33 of their 
 Act of Incorporation gives them power to cross the lines of the Plaintiffs' railway 
 subject to t!'i' provisions of the Manitoba Railway Act; and it is shown that 
 under the provisions of the last mentioned Act, the Railway Committee of the 
 Privy Council has approved of the .several crossings, and that the Del'ci riant 
 Company have complied with the directions of the Committee in reg;u"^^ iliereio. 
 
 The Plaintiffs' Bill is dismissed with costs. 
 
 Li 
 
1 
 
 ily as it wns autlio- 
 ' Lcj,'i.sliiturt' citlior 
 H'm tilt' iiumopoly of 
 f hIiouIiI have j^ivon 
 tliority that it <liil 
 have tli»5li'gal nj,'lit 
 y caiuKJt liui'iititlt'd 
 
 Street ami Portage 
 1, 'is to tiit'se Htreet-s 
 bs mt>nti()iu!il in the 
 
 power to give the 
 CO the contention of 
 lis monopoly. The 
 le Dot'onilants say, is 
 iiilway, and t'urthor 
 
 However, af I have 
 ), it is iu)t necessary 
 construction of the 
 
 )!iny s railway cross 
 rtage Avenue ; and 
 Company may be 
 purpose of crossing 
 y' tlie Plaintiffs, ami 
 idant Company lias 
 1, section 33 of their 
 Plaintiffs' railway 
 iiid it is shown that 
 ,' Committee of the 
 tluit the Defendant 
 J in reg'iivl thereic. 
 
 t 
 
 I 
 I 
 
RHASONS I'OR JUDGMENTS of Taylor, C. J,, and Dlm.uc. J.. 
 and Kii.i.AM, J., on a[)p(jal to Full Court of Queen's Hench. 
 Manitoba, from Decision of Hain, J 
 
 JuiuiMKNT iiv TAYLOR, C. J. 
 
 Taylor, C. J. Tlio Act 4r) Vic. c. 'M Manitobft, incori^oratins the City of \Vinnipe<r, passed 
 
 in 18S2, provided by see. 154-, that the City Council might pass by-la\v,s among 
 other things, 
 
 7. '■ Fur lUitliorijlLn llip constriulldn (if any itroot mllwftjr or tramway iiikhi any of the ttiveU 
 or hitjlnvays wUliln tlio City, and for »OK>iUitlng and governing tliciani*, and for fixing the rate« to b« 
 cliarjjed llicrcon." 
 
 The Plaintiff Company was incorporated in l!SS2 by the Act 45 Vic, cap. 87 
 Manitoba. In tlie .same year, under an agreement with the City of Winnipeg 
 dated 7th July, 18«2, entered into under the authority aiul in pin-suance of a by- 
 law of the (,'ity council. No. 17S, and passed on the 12th June, 1HN2, the Plaintiff 
 Com|iaiiy constructed a tramway or street railway upon Main street in the City 
 of Winnipeg, from the Assiniboine river on the .south to the Canadian Pacific 
 Railway Station on the nortlj. A few yeiiivs after a brancli line was constructeil 
 from tile jiinetion of Main street and I'ortage avenue, runniiitr along Portage 
 avenue as far as Kennedy stivet, and thonei" along that street as far aa 
 I'.roadway. Still later, the line on Main street was continued on that street, 
 north from the (anadian Paeilic Railway Station, and as far as the Parish 
 of Kildoimn. The original line and these extensions have ever since their 
 const nietiou been, a.n(I now are operated iiy the Plaintiff Company, aecordhig 
 to terms find jirovisions of the i'.y-law and Agreement. The Act of Incorpor- 
 ation, H,\-Imw and Agivcmciit all provi.le that the motive power used sliall be 
 
 "llic lurcc'HU.I power of aiiimaU, or such oiIht ingll»n power im iiiuy lio iiuihori/cd fcy the said 
 riniiicil of llie siiid clly." 
 
 Ill IMI2, the City council passed another by-law. No. r>V,), which after 
 rceitiii!,' that errtain persons tliereiii Uiuned had applied for Lhe right and 
 privilege to construct and operate n double or single track i-ailwav iiver and 
 along the streets and l.ighwity^ of the ( 'ity, proceeded to grant the applicants 
 the prisilegi' applied for, the niolive |iower \ised tube. 
 
 " I'iK'Irir iioHcrorsncli other power in iniiy lie fomiil rnotientile, " 
 
 i''ollowing ii|ion this, certain persons, ineludiiiL' those named in Hvdaw 
 54.'!, were iiy ;")") Vie. c. f)!!, Manitoba, incorporated as " Tjie Winnipeg Kiectric 
 
 ! i 
 
C. J,, and Dl'huc, J.' 
 of Queen's Bench, 
 
 J- 
 
 ty of Winnipeg, passed 
 lit pass by-laws among 
 
 way "iMin any of the itrreU 
 1(1 for (liing the r»ti'» to b« 
 
 ho Act 45 Vic, cap. 87 
 
 tlu' t'ity of Winnipeg 
 
 \d in pursuance of a hy- 
 
 ,luiK«. 1882, tlu> Plaintiff 
 
 Main street in the City 
 
 () the Canadian Pacific 
 
 eh line was oonstrncteil 
 
 ruiiniiiir aioiii;- Portage 
 
 • tluit sti-eet as ftir as 
 
 ntiniied on that street, 
 
 1 as far as the Parish 
 
 ha\-e ever since their 
 
 ill" Coiiipfiny, aecording 
 
 Tlie Act of Iiieorpor- 
 
 e power nsed shall he 
 
 ij Ik- ivuihiirizt'd fcy llic Mid 
 
 No. .'■)4-'{, whieh after 
 iliei! for the \\>j;ht and 
 lack railway o\ir and 
 o grant the applicants 
 
 lii'iitili'," 
 
 lose named in Hy-iaw 
 I'he Winiii])eg Khctric 
 
Tayu)R C. J. Railway Company," and the By-law was thereby validated and contirnicd in 
 all respects as if it had been enacted by the Legislature. In pursuance of 
 this Bylaw the Defendant Company have constructed and are now operating 
 by electricity a street railway with tracks on Main street and Portage avenue 
 laid alongside those of the Plaintiff Company, and also upon other streets of the 
 City. 
 
 The Plaintiff Company claim that tliey are, under By-law No. 178, and 
 their Agreement with the City, entitled to the exclu.sive use of the whole of the 
 streets upon which they are operating their line for street railway purposes, and 
 have begun this suit to obtain an injunction restraining the Defendant Company 
 from operating their line of railway, and for a declaration that they have a legal 
 right to the exclu.sive use which they claim. 
 
 The Act 55 Vic. C. 56, incorporating the Defendant Company, was opposed 
 by the Plaintiff Company before the Private Bills Committee of this Legislature, 
 so it was passed by the Legislature with full knowledge that the Plaintiff 
 Company claimed the exclusive right now as,serted in this suit. But the 33rd 
 section of the Act provides, that 
 
 'Nothing contained in this Act, or in the Bchcdnle thereto, shall in any way affect or takeaway 
 any riwht held by, Teitcd in, or belonsing to the Winnipeg Street Railway Com,«any, if any such there 
 be. but any eucli right may be held and exercised by th« Winniiieg Street Hailway Company as fully 
 and effectually as if this Act had not been passed." 
 
 The By-law, No. 543, is also expressed to be made 
 
 " iubject to the legal rights " 
 of the Plaintiff Company. It is therefore necessary to enquire what these are 
 and whether the Plaintiff Company have the exclusive rights and privileges 
 claimed. They concede that, if they have no exclasive right, or if. though the 
 By-law and Agreement purport to give an exclusive right, it was not in the 
 power of the City Council to grant it, they cannot maintain their suit. 
 
 The Plaintiff Company insist that for the period of time mentioned in the 
 By-law and agreement they have acquired the legal right to the exclusive use of 
 such streets in the city as they may occupy with their line of railway, that is, 
 that they are entitled to the exclusive use of the whole width as well as lentrth 
 of the streets so occupied by them. 
 
 The Act incorporating the Plaintiff Compuny provides in Section 9 that the 
 Company, on olitaining the con.sent of the city, shall 
 
 " have full power and authority to use and occupy any and such parts of the streets or highways 
 aforesaid as may be required for the purpoies of their railway track," 
 
 The wording of the By-law, clause 1, and of clause 1 of the agreement is, 
 
 " such railway shall have the exclusive right to such portion of any street or streeU as shall b« 
 occupied by said railway." 
 
 2 
 
liilated and confirmed in 
 iture. In pursuance of 
 and arc now operating 
 eet and Portage avenue 
 upon other streets of the 
 
 er By-law No. 17«, and 
 use of the whole of the 
 et railway purposes, and 
 the Defendant Company 
 on that they have a legal 
 
 . Company, was o])posed 
 littee of this Legislature, 
 ledge that the Plaintiff 
 his suit. But the 33rd 
 
 any way affect or take away 
 
 Company, if any such there 
 
 , Kailway Company as fully 
 
 enquire what these are 
 e rights and privileges 
 right, or if. though the 
 ight, it was not in the 
 iain their suit, 
 time mentioned in the 
 t to the exclusive u.se of 
 line of railway, that is, 
 width as well as length 
 
 Ics in Section 9 that the 
 
 t«of the streets or highways 
 
 I of the agreement is, 
 
 y street or street* as shall bo 
 
 
 I 
 
Taylor, C. J. On these words great reliance is placed. But there are other arguments used in 
 favor of exclusiveness. such as that onerous conditions were imposed upon the 
 Plaintiff (Jompany, and they have fulfilled these ; that in the very nature of 
 things, and the conditions of a railway track there nnist lie an exclusiveness; 
 and that unless an exclusive right had been given no one would have made or 
 taken the risk and expended such a large amount of money as they have done. 
 
 The position taken by the Defendant Company is, that the Plaintiff 
 Company have no such exclusive right as is claimed, and that they have an 
 act of the Legislature, and the By-law thereby confirmed giving them certain 
 rights, the Court should not interfere by injunction, but should leave the Plaintiff 
 Company to enforce against the City any rights they may have. As to this, I 
 agree with the learned Judge who heard the case in the first instance, that the 
 Act incorporating the Defendant Company having in effect been passed on the 
 supposition that the Plaintiff Company have not the right now claimed, the 
 jurisdiction of the Court cannot be said to be taken away. Though I also agree 
 with him, that before the Court will interfere so as to defeat the le-nslative crant 
 to the Defendant Company, the Plaintiff Company must place the legal right 
 they claim beyond doubt. 
 
 The Plaintiff Company assert that an exclusive right has been granted to 
 them, and that it was within the corporate power of the City to grant such a right. 
 The Defendant Company on the other hand, attack both of these propositions 
 and say, the City did '-ot grant an t-xclusive right, and if it undertook to do so 
 the grant is invalid, because it exceeded its corporate powers in making such a 
 grant. The learned Judg ; at the hearing dealt with tlie powers of the City, 
 and ha\ ing come to the conclusion that granting an exclusive right was beyond 
 its authority, it was unnecessary for him to consider whether the City diii under- 
 take to confer such a right by the By-law and Agreement with the I'hiintiff 
 Company. 
 
 Counsel for the Plaintiff Company concetle that the American cases dealing 
 with the powers of .Municipal Corporations may be considered as opposed to the 
 po.siti(Mi wiiich they take, and that Cooley in his work on Constitutional Lindta- 
 tions, at page 281, fairly states the law as c'xpoundeil l,y tlie American Courts. 
 
 "The piiioml ilisiKisiiioii nf llu' foiirls ill ibis Pdiiiilry lias bvtit lo ciiiitim' Mimiciimlitics williin 
 IlK' limits tliat a slricl I'oiisu-uotioii nf Ilie grants of |H)\vors in tlivir eliartci-s will nssiKii tliem ; thus 
 applyinn i^ulwtaiitially itio same rule tlint is apiilieil in oliartiTsof private incorporation. The reasonable 
 prdsumplion is, thai the Slate has gra«te(l in clear and nninistakealile terms all it has ilosijiiiivl to Knint 
 at 111." 
 
 This doctrine seems to have prevailed from an early period in the United 
 States, though perhaps for the first time so distinctly asserted in Charles River 
 Bridge v. Tiie Warren Bridge, 'M U. S., 420, a case in which, however; two 
 
otlier ar<i;uinents used in 
 were imposed upon the 
 t in tlie very nature of 
 1st l)e an exclusiveness ; 
 3ne would have made or 
 oney as thoy linve done. 
 ly is, that the Plaintiff 
 and that they have an 
 led giving tlieni certain 
 should leave the Plaintiff 
 may have. As to this, I 
 i first instance, that the 
 effect been passed on the 
 right now claimed, the 
 ly. Though I also agree 
 ;feat the legislative grant 
 st place the legal right 
 
 ;ht has been granted to 
 Jity to grant such a right, 
 th of these propositions 
 if it undertook to do so 
 jwers in making such a 
 ;lie powers of the City, 
 elusive riglit was beyond 
 ether the City did uiuler- 
 nent with the Plaintiff 
 
 ! American cases dealincr 
 idered as opposed to the 
 in Constitutional Limita- 
 y tile American Courts. 
 
 ('(iiitiiip Mnriicii'iilities i\ilhiii 
 tf™ will ii^siKii ihcm ; thus 
 corporation. Tlic reasonable 
 s all It has dc'si|,'tu>(l to smut 
 
 y period in the United 
 iserted in Charles River 
 in which, however; two 
 
 A 
 
Tayi.oR, C. J. judges (lissentetl, one of them being the eminent jurist Judge Storey. Since then 
 the rule of strict construction na applied to such -charters, has prevailed, and as a 
 learned judge in the Supreme Court of Pennsylvania once said, 
 
 "In the coustructlou of a Charter, to be lii doubt is to be resolved, and uTcry resohitlou which 
 •prtngi from doubt iflagalnut the Corporation." 
 
 Dillon, in his work on Municipal Corporations, at section 91, .says, 
 
 " The mle of strict eonstructlon is not as directly applicable to tlie ordinary clauses In the 
 Charters or Incorporating Acts of Miiniciialities, as It is to the Charters of Private C(>riK)rations : but it is 
 equally applicable to grants of \mviera to Municii)al and I'ubllc IkkIUs which are out of the usual range, 
 or which may result in piiblic burdens, or whieli lu their exercise touch tlic right to liberty or property, 
 or as it may compenduously be expressed, any cornmon law right of the citizen or inhabitant. ' 
 
 In the American and English Encyclopajdia of Law, Volume 15, page 1055, 
 after stating in the text that a municipal corporation cannot, in the absence of 
 expre-ss legislative authority, grant to any person or corporation the exclusive 
 privilege of using the streets for laying gas or water pipes, .street railway tracks, 
 etc., j+ is said in a note that the weight of judicial authority supports this state- 
 men' V the text, although there are several decisions which sustain the contrary 
 doctrine. Two such cases are there cited. One, Newport vs. Light Co., 8 Ken- 
 tucky Law Report 22, which was relied upon by Mr. Howell in this argument, 
 the other Desmoines Street Railway Company vs. Desmoines, 73 Iowa, 513. In 
 that case the Court held that although there was no grant of power in expi'eaa 
 terms authorizing the Council to confer an exclusive privilege in the use of the 
 streets, yet under the circumstances of the case, and to procure a better public 
 service the Council could grant a valid exclusive right for a limited period, such 
 contract being necessary to secure the service which it might not otherwise be 
 able to obtain. It would appear, however, that the power there given the city 
 was somewhat peculiarly worded, as it seems to have been authorized to "grant 
 or prohibit " the laying down street car tracks within its limits. 
 
 It is, however, insisted that under Engli.sh law the powers of Municipal 
 Corporations are broader than those of other Corporations. For this Brice on 
 Ultra Vires is relied upon at page 516, where he says : 
 
 " A wider and more liberal construction will be put upon the powers Tested in bodies, such as 
 Locp.l Government Hoards, Municipal Corporations, and Sewerage Commissioners, whose duties are the 
 accomplishment of public ImDrovement*." 
 
 The learned judge has gone very fully into the consideration of the English 
 authorities, bearing upon the manner in which powers given by the Legislature 
 to Corporations are to be construed. Applying the principles laid down in these 
 to the present ca.se he held that there was not anything in the nature of the situ- 
 ation, and in the circumstance! from which it is a legitimate and reasonable in- 
 
iilge Storey. Since then 
 i, has prevailed, and as a 
 B said, 
 
 ail erery rcsohitiou which 
 
 ition 91, says, 
 
 le ordinary clauses in the 
 Vftte Corporations : but It Is 
 1 are out of the usual raiiRC, 
 right to liberty or property, 
 ;n or inhabitant." 
 
 Volume 15, page 1055, 
 nnot, in the absence of 
 poration the exclusive 
 I, street railway tracks, 
 •ity .supports this state- 
 3h sustain the contrary 
 r vs. Light Co., 8 Ken- 
 vveli in this argument, 
 nes, 73 Iowa, 513. In 
 t of power in express 
 •ilege in the use of the 
 )rocure a better public 
 
 a limited period, such 
 ight not otherwise be 
 r there given the city 
 I authorized to " grant 
 limits. 
 
 powers of Municipal 
 s. For this Brice on 
 
 ▼csted In bodies, such as 
 lers, whose duties are the 
 
 eration of the English 
 an by the Legislature 
 les laid down in these 
 the nature of the situ- 
 ite and reasonable in- 
 
h 
 
 t 
 
 Taylor, C. J. ferenco, that, when the Lorrislature authori/.e.l tlio City to arrange for the con- 
 struction of street railways, an.l to in.ike an Agreement with tlie Plaintiff 
 Company, it also intended that the City might agree that the Plaintiff Company 
 alone should lie al.Ie to ohtiin the privilege of using the streets for street railway 
 purposes during the time limited. With the conclusion so arrived at by him I 
 (|uite agree. I also concur with him in the finding that it has not been shown 
 by the Plaintiff Company that there was anything in the existing situation 
 and circumstances, when the agreement was entered into, which would make this 
 franchise, being exclusive, wha* has been spoken of as a potential necessity. 
 
 Whatever argument may be brought forward as to the broader powers of 
 Municipal Corporations, there are numerous cases showing plainly that strict 
 compliance with the provisions of any statute by which the rights of the public 
 to the use of eve^y part of a highway are interfere.l with, is necessary, and they 
 must be strictly followed. In Ponthren v. Pennefather, 5 To nt. G34 ; Rex v. 
 Justices of Worcestershire, 8 B. & C. 254 ; Rex v. Justices of Kent, 10 H. & C, 477 ; 
 Rox V. Justices of Cambridgeshire, 4 A. & E. Ill ; Rex v. Downshire 4 A. & E., 
 698 ; Rex v. Milverton, 6 A. & E., 841, may be referred to on this point. In the 
 Province of Ontario the powers of Municipal Corporations as to dealing with 
 public highways have also been strictly construed, and they have been rigidly 
 confined within the powers given by statute Rex v. (Jreat Western Railway 32 
 U. C. R., .500 : Re Lawrence & Thurlow, 33 U. C. R., 223 ; Cameron v. Waite, 3 
 App. R. 175 ; Re. Laplante & Peterboro, 5 0. R. G34. In Winter v. Keown, 22 
 U. C. R., 341, Hagarty, J., said: 
 
 " The Legislature has given a certiiin power to the Municipality, and it seeniK to me that 
 sucli power must be strictly executea." 
 
 On the contention of the Plaintiff Company, the City having power to pass 
 By-laws for the construction of any street railway have done so giving them an 
 exclusive right for twenty years. No doubt the City, having once made an 
 agreement with the Plaintiff Company might decline for twenty years to enter- 
 tain proposals on the part of any other person or corporation to construct any 
 other street railway, and in that way practically give the Plaintiff an exclusive 
 right, but it would be for the Council of any particular year, in which such a 
 proposal might be made, to consider and deal with it. Here it is claimed that 
 the City has bound itself that no Council shall for twenty years consider any 
 such proposal. In other words, the Council of 1882 agreed, that they and their 
 successors for twenty years to come should abdicate part of their powers as a 
 Council. Ayr Harbour Trustees v. Oswald, 8 App. Cases, 623 ; Vandecar v. East 
 Oxford, 3 App. R., 131, are authorities that they could not do .so. I also agree 
 
to arrange for the con- 
 ment with the Plaintiff 
 it the Plaintiff Company 
 streets for street railway 
 so orrived at by him I 
 it has not been shown 
 in the existing situation 
 ->, which would make this 
 potential necessity. 
 
 the broader powers of 
 wing plainly tliat strict 
 
 1 the rights of the public 
 ih, is necessary, and they 
 r, 5 To nt. GIU ; Rex v. 
 of Kent, 10 H. & C, 477 ; 
 V. Downshire 4 A. k E., 
 o on this point. In the 
 ions as to dealing with 
 they have been rigidly 
 at Western Railway 32 
 i ; Cameron v. Waite, 3 
 [n Winter v. Keown, 22 
 
 , nnd it socnis to mo that 
 
 ty having power to pass 
 done so giving them an 
 having once made an 
 • twenty years to enter- 
 ation to construct any 
 le Plaintiff an exclusive 
 ■ year, in which such a 
 lere it is claimed that 
 ity years consider any 
 ed, that they and their 
 ; of their powers as a 
 623 ; Vandecar v. East 
 t do so. I also agree 
 
Taylor, C. J. with tlie conclusion come to hy the k-arruHl judj^c. tlnit wimtevcr property in the 
 streets, nsstrei'ts, \v,i,svfst.'.l in tin- city, the power to dispos.' of, or deal with 
 these streets, was strictly liiuitcd liy its corporate powers. 
 
 Hut (lid the City yrant, or un.hTtake to grant to tho I'laintitr Coiiit)any the 
 cxchisive right claimed / 1 cannot see that the City mad.- any such grant. It 
 is only in the Hrst clause of the By-law, and in tin; first dau.se of the Agreement 
 that any direct mention .,f exclusiveness is nnide. Throughout the Hy-law and 
 Agreement there are two distinct things .spoken ..f and d.alt with, tho " Com- 
 pany " and tlie " Hailsvny." Now, taking the plain language of the By-law and 
 Agreement, it seems to me, it is not tho Company hut the railway that is given 
 any exclusive right. The Company is authorized and empowered 
 
 "To c.iislrucl. maintain, complftu and operato • • « a double or Hintjlo track 
 railway ■ . . , upon ami alontf any of the HtroolHor hlKhwajH of tlio City • • • 
 an.l Hucl. railway Khali have the excluHlvu riKht to «uol, porll„n of any nlrect or HtrooU a8 Hhall be 
 iicoupit'd by wild railway." 
 
 Now any grant to a Company authorizing tho c<;nstruction of a street rail- 
 way must confer an exclusive right to a certain extent. Once the track and rails 
 air laid it is evident no other Company can lay a track ami rails upon the same 
 space of ground as has been already occupied by tho track and rails of the first 
 Company. To permit such a thing wcjuld certainly hinder, if not entirely pie- 
 vent, the operation of the railway by both Companies. The language useJ there 
 seems to mo, c;iv-.fully used to express just that extent of exclusiveness neco,,aar- 
 ily iii\(.lved in the nature of things, in the construction of a street railway. 
 
 Then the first part of clause 16 of the By-law, and clause 17 of the Agree- 
 ment, show that even this right is a linuted one, for it is provide.' that vehicles 
 may travel on, along or across the track, subject only to the obligation to turn 
 out on the approach of any car so as to leave the track free. The Plaintift' Com- 
 pany may have such a right to the portions of the streets actually occupied by 
 their tracks and rails as is in tho very nature of things involved in the having a 
 railway track at all, but that is something widely ditterent from what they claim, 
 an exclusive right to the whole length and width of every street on which they 
 have a track laid. 
 
 Further, section 9 of the Plaintifl^ Company's charter shows this limited rirrht 
 to ha\'e been all that the Legislature intended should be dealt with. The lan- 
 guage used there is 
 
 " The Company Hhall have full power and authority to use and occupy any, and such parts 
 of any of the st reels and bife-hways afoiesai.l, as may be required for the purposes of their railway 
 track, the layinif of the rails and the running of their cars." 
 
 That gives no countenance to the elaim of the Pl.nintiff Company. To support. 
 
 i 
 
atevcr property in tho 
 ipoai- of, or (loiil with 
 
 MiiintiH' Cuinpuny tho 
 If any Huoh grant. It 
 lusc of the Agreement 
 ,'hout the By-law and 
 halt with, tho " Coin- 
 Lfc of the By-law and 
 railway tlwit is given 
 jwered 
 
 a doublu or HitiKlo track 
 •H of tho City * * • 
 'I't or HtrootH an Hhall bo 
 
 ctioti of a street rail- 
 tice the track and rails 
 d rails upon the same 
 and rails of the first 
 if not entirely pie- 
 e language use J there 
 cclusiveness nect-saar- 
 . street railway. 
 use 17 of the Agree- 
 •rovidt .' that vehicles 
 le obligation to turn 
 The Plaintiff Com- 
 actually occupied by 
 Ived in the havin<j a 
 rom what they claim, 
 street on which they 
 
 ows this limited riirht 
 alt with. The Ian- 
 
 I 
 
 ny any, and such parts 
 posos of thoir railway 
 
 npany. To support 
 
II 
 
 Taylou, C J. Huch a cliiiin ono would cxju'ct to find Homo provision that they art' to havo full 
 powir and authority to ust? those streetH or hi},'li\vays on which they may lay 
 tlu'ir tracks. On the contrary it \h only such part of any wtrt'ot as may he 
 rtMjuired for the purposes of the track, diHtinctiy confining' their rij^lit within 
 that limit. 
 
 Tiio excluHive rij,dit of fcrrir.s was ur;,'ed as an argument in support of tiio 
 claim of the Plaintifl" Company, hut I can seo no analogy between this case and 
 that of a ferry. Ancient ferries, and I holievo ancietit ferries oidy, are held to 
 have exclusive rights, hut thoy are so for the reason assigned by Blackstono, vol- 
 ume ii, page 219. 
 
 " Wlioro Ihoro in a ferry !)>■ prcHoriptlon, llu! owner U bound to koop It n'.wnyn In repnir and 
 romllnoHH for UiuunHuof nil tho KIhk'h HubJuctK ; olliorwiKO ho nmy huKrlnvoUHly aniurcod." 
 
 This passage was (pioted with approval in Letton v. Oodden, L. R. 2 E(i. 132. 
 The same principle, the obligation to maintain tlu; ferry, was remarked on in 
 Hopkins vs. Great Northern Railway Co., 2 Q. 15. I)., -224. It is true in Newton 
 V. Cubitt, 12 C. B. N. S. 32 Willes, J., .spoke of the exclusive right as given, be- 
 cause, in an unpopulous place there might not be sufficient profit to maintain the 
 boat without a monopoly. The obligation to mairjtain the ferry seems, however, the 
 true ground, and on that ground Kindersley, V. C, put it in Letton v. Gooden, 
 L. R., 2 Eq., 133, 
 
 "Tho only Kroun(l"ho Hftid, "upon which tho owner of nn nnolcnt ferry can claim protec- 
 tion Ih thr obliKiition ho in under to koop tho ferry always In a tit Htato for the uho if the public ; 
 and It l.>. upon tlii^f principle alone that tho several oaBOH which have been cllod. In which tho 
 owntrof tho ferry has been protected, have boon decided." 
 
 Now, I can rind nothing in this By-hiw or Agreement at all analogous to 
 the obligation to keep the ferry in a fit state for use of the public. There is 
 nothing in either of them under which the PlaintiflT Company can be compelled 
 to operate their street railway. They are, it is true, to place and continue on 
 their railway tracks good and sufficient car.s, they are to run the cars during, 
 and at such times as the Council may direct, and so on, but suppose they do not 
 comply with these retiuirements, and wholly cease to operate the railway, what 
 then ? 
 
 There is nothing in the By-law or Agreement under which they can be 
 made to operate the railway. Clause 22 of the By-law, clause 24 in the Agree- 
 ment, does not seem to provide for a forfeiture of privileges in case of failure to 
 keep the railway in operation. That seems to refer to clause 9 of the By-law, 10 
 of the Agreement. What is provided for is, that the Company shall complete 
 their track and have cars running within a lin-ited time, and failing that, shall 
 forfeit the privileges and rights. The, 
 
 " do all that is required of it in tho manner provided tor in this by-law within the time 
 limitod therein " 
 
Iiey an- to liiivo full 
 wiilch tlioy may lay 
 ly stn'i't iw may Ito 
 i;,' tlioir rij,'ht within 
 
 f 
 
 it ill siipiiort of the 
 ■tWL'L'ti tliin ciiMi' mill 
 ic8 only, arc hoUl to 
 il by Wackstono, vol- 
 
 il iiUvnyM in repntr and 
 ouiily iitiiorccd." 
 
 ..Ulen, L. R 2 Eq. i;}2. 
 was remarked on in 
 It is true in Newton 
 e right oh given, be- 
 profit to maintain the 
 y Heems, however, the 
 in Letton v. (Jooden, 
 
 i 
 
 ferry can claim prolec- 
 r tlio Urto if thepnblic; 
 n cited, In which the 
 
 at all analogous to 
 he public. Tliere is 
 ny can be compelled 
 lace and continue on 
 run the cars during, 
 t suppose they do not 
 e the railway, what 
 
 • which they can be 
 use 24 in the Agree- 
 in case of failure to 
 e 9 of the By-law, 10 
 pany shall complete 
 nd failing that, shall 
 
 
 y-law within the time 
 
Taylou, C. J. nnjHt n'ft>r io tlic matters tlt'ivlt witli by Huch climscs iis 2, 4 inul T) of tlio Ry-law. 
 
 ITpim till' arj^'umi>iit, cimiiscl Tor tlic I'liiiiitid' ('onipauy il(<alt Inrgt'ly with 
 tin- i>xi-luHivi> ri^lit claiiiUMl, and the iiowcrs of tlio ( -ity and tlio couHtnu'tion of 
 tlu' My-Iaw ami A^'iccnu'iit as lu'aring upon tliat iiuostion. jiittli* was said lus 
 to any rif,'litH tlu* I'laintiH" Company may Imvc nndcr clanso 2r> of tlic Hy-Iaw, 
 27 of tlin Aj^rt'iMiicnt, lint tht'sc arc n>ft'ri('d to in tlic Hill of Complaint. 
 
 They arc considered hy my l?rotlii>r Killam in Ids jnd^'ment, and as 1 a},'reo 
 witli wliat lie says 1 do not dwell npon tliem. 
 
 Upon liotli gnauids tlicn, that (lit< (Mty had no power to conl'i'r an cxclnsiv(» 
 riffht, and that it has not f^iven, nor luidertaken to t,'ive, any such ri)j;ht., the 
 contention of the I'laintill' C(anpany, in my opinion, fails, and the Decree made 
 at the Htmritif; should lie allirmed with costs. 
 
 DUHUC, tl., concurred in the .ludL'meiit of the Chief Justice. 
 
 11 
 
I 2, 4 1111(1 5 of tilt' By-lU'W. 
 iipiuiy ilciilt largely with 
 y and tht> constnu-tion of 
 tioii. J-iittlc waH .sail! an 
 
 clausti 25 of tho Hy law, 
 Uill of (^nnplainl.. 
 
 jiiilgiiKMit, and a,s I agn<« 
 
 I 
 
 vcr to i-oiifcr an cxcliisivt^ 
 givi>, any such riglit, th« 
 fails, and tho Di'croc niado 
 
 
 JuNtico. 
 
Juboc's IRcasons, 
 
 KiLLAM, J. 
 
 * 
 
 1 1 [ 
 
 MR. JUSTICE KILLAM, 
 12th December, 1892. 
 
 Tlie Plaintiif Company was incorporated liy Act of the Pror'incial Legislature, 
 45 Vie. cap. 37, for the purpo.se of constructing ami operating street I'ailways in the 
 City of Winnipeg and adjacent territory. A liy-law was tlien passed by the 
 Council of the City, authorizing the Company to construct and operate such 
 railways on the streets of Winnipeg, and an agreement was entered into between 
 the Civic Corporation and the Company embodying tlie terms of the by-law. 
 The Plaintiff has constructed, and has for several years operated such lines of 
 railway on some of the streets of the City. This Company claims that, under 
 and by virtue of tliis Statuf^, Bj'-Law and Agreement it has the exclusive right 
 fur a certain period to construct and operate street railways in Winnipeg. It 
 alleges that this right has been infringed l)y the passage by the Council of the 
 Defendant Coi'p()rati(jn, the City of Winnipeg, of a by-law autliorizing the De- 
 fendant Company to consti'uct and operate similar railways and bj'^the construc- 
 ti(m of siicli new lines, partly on the streets on which the Plairitifis' railways 
 are, and partly on other streets, and this suit is brought to enforce the right 
 claim. The suit came up for hearing before my Brother Bain, wlio dismis.sed the 
 Bill on the sole ground that tlie City Corporation had no power to grant such an 
 exclusive right. The Plaintiffs now seek to have this Judgment revej-sed, and to 
 obtained a decree in accordance with the prayer of its Bill of Complaint. 
 
 'i'he principal prayer of the Bill, and the one to which the arguments before 
 us were almost exclusively directed, as to declaration of such a I'ight as to the 
 streets on which the Plaintiffs' lines have been built, and an injunction to restrain 
 tlie Defendant Company from con.structing or operating such railways on these 
 streets, two main points were raised and argued on this rehi'aring: first, a.s 
 to the power of the Citj' Corporation to bind itself ]>y sucli an agreement; and, 
 secondly, as to the proper construction of the agreement. 
 
 In considering the former of these questions it appears to me unimportant 
 to determine the limits of corporate powers generally. For the Plaintiff it is 
 contended that the property in the soil of the streets is vested in the City Cor- 
 poration, wliich may, thci-efore, liind itself as to the use of that property. But 
 the cases of Coverdale v. Charlton, 4 il B. D., 104, Rolls v. St. George's, 14 Ch. 
 D. 785, and the Board of Works v. The Union Telephone Co., 13 Q. B. D., 904, 
 seem to show that this must be regarded as a qualified property. The Corpora, 
 tion held the lands for use as streets and highways. Its Council liad certain 
 powers as to altering or closing these streets, and if it shouM exercise such 
 
Proi'incldl Legislature, 
 g street railways in the 
 IS then passed by the 
 ruct and operate such 
 IS entered into between 
 terms of the by-law. 
 operated such lines of 
 ,ny claims that, under 
 lias the exclusive right 
 rays in Winnipeg. It 
 bj' the Council of the 
 V authorizing the De- 
 s and by the construe - 
 he Plaintifts' railways 
 ht to enforce the right 
 ain, wiio dismissed the 
 lower to grant such an 
 ;,anent revei'sed, and to 
 of Complaint. 
 . the arguments before 
 iuch a right as to the 
 1 injunction to restrain 
 .ich railways on these 
 is rehearing : first, as 
 cli an agreement; and. 
 
 L's to me unimportant 
 or the Plaintiti' it is 
 5ted in the City Cor- 
 :' that property. But 
 r. St. George's, 14 Ch. 
 Co., 13 Q. B. D., 904, 
 )perty. The Corpora. 
 Council had certain 
 should exercise such 
 

 Jl'IKiE's Reasons. 
 
 Knj.AM, ,1. powers some (luestici nii^^lit ariso as to tao ownership of any portion tlius ceasing 
 to be public higlnvays. With tliis, liowever, we liave nothing now t.. do. 
 
 I take it that, without statutory authority, the Corporation could not 
 authorize tlie construction and operation of a street railway along and upon a 
 public street. Sucli a structure would be regarded in law as a nuisance-at least, 
 if so found by a jury. This appears to have been settled in Reg. v. Train, 3 F. 
 & F. 22, 2 B. ^ S. G40 ; 9 Cox C. C, LSO. Certainly, without statutory authority, 
 the Corporation or its Council could give no right of occupation of a portion of 
 the streets as against the public, or compel the public to give way to the vehicles 
 of the railway proprietors. I doubt if it could even grant such a righfc of occu- 
 pation for railway purposes enforceable as against the Corporation itself. It 
 does not seem possible then to treat the case as one in which the corporation was 
 <lisposing of some interest in a portion of its lands, and assuming to bind itself 
 not to allow a certain user of the remainder, or some part of the reinainder. 
 
 By tlie Plaintiffs' Act of Incorporation, 45 ^'ic. cap. 37, sec. 8, the Plaintiff- 
 Company was authorized 
 
 "to con-tnict, maintain, coniplole and opeialo ami fion, time to time reinovo ami change 
 a .louble or .inKlo track iron raihvay, with the necessary .ido track.., .switches and turn-outs for the 
 pas^aKO of cirs," &c. 
 
 upon and along the streets or highways in Winnipeg And by sec. 9, the Com- 
 pany was given 
 
 • full pnwer and authority to use and occupy any, and such parts of any, of the stroots or 
 highway. Pfor.said. as may be required for the purpo.ses of their railway track, tho laying of the 
 rails ant! llie runuiiig of their cars and carriages," 
 
 with a prov:io requiring the consent of the City Corporation, and authorizing it 
 
 " tc -innt permLsslon to tho said Company to construct their railway as aforesaid - ♦ 
 a-.o«s and along, and to use and occupy, thesai.l street, or highways, or any part of them, for that 
 pui „..se. upon such conrtidon. and for such period or periods, as n.ay bo respectively agreed upon he- 
 tweet; the Company ami tho said City," etc. 
 
 At that time the only statutory authority in force, expressly referring to 
 street railways in Winnipeg was contained in the Act 38 Vic, cap. 50, ,sec. 107, 
 s.s. 5, by which the City Council was authorized to pass By-laws 
 
 "for regulating and governing street railway companies and fixing the rates to bo charged 
 thereon." 
 
 But three days after the passing of the Plaintiffs' Act the Consolidated Charter 
 of the City, 4.5 Vic, cap. 36, received the a.ssent of the Lieutenant-Governor; and 
 as if the Legislature in the consideration of tiie question had found it desirable 
 to make the powers of the Council upon the subject more clear, the Council was 
 by the later Act, sec. 104, s.s. 7, empowered to pass By-laws 
 
 
y portion tlius ceasing 
 ig now to do. 
 oiponition could not 
 L}' along and upon a 
 s a nuisance — at least, 
 n Reg. V. Train, 3 F. 
 t statutory authority, 
 ition of a portion of 
 e way to the vehicles 
 uch a riglifc of occu- 
 jrporation itself. It 
 L the corporation was 
 mniing to bind itself 
 
 the remainder. 
 
 sec. 8, the Plaintiff 
 
 c remove and change 
 i nnd turnouts for the 
 
 l>y sec. 9, the Com- 
 
 nny, of the streets or 
 ^ck, the laying of the 
 
 , and authorizing it 
 
 as aforesaid, - * 
 part of them, for that 
 ;ively ngreed upon he- 
 
 pressly referring to 
 ic, cap. 50, sec. 107, 
 
 IWS 
 
 .6 rates to be charged 
 
 onsolidated Charter 
 lant-Governor; and 
 i found it desirable 
 ar, the Council was 
 
KllJ.A.M, .1 
 
 Judge's Reasons. 
 
 •• for niithorlzlnK the conHtruclion of any street raihvaj- or tmmwfty upon any of tl.o streoU 
 or highways within tho City, and for rogulatinK and governlnK the Hame," elf. 
 
 1 rtiu unable to accede to tho argument of the PhiintiftV Counsel that this 
 gave puuLT to authorize tlie construction of only one such raihvay, or one such 
 alone on any particular street. It appears to uie that tho power thus given was 
 as general as it was possible to make it, an,l that it enabled the Council to 
 authorize as many sots of railway tracks on any particular street, under the 
 managen.ent or control of as many ditreront persons or bodies, as the Council 
 might de.Mn proper, and tho circumstances might admit. 
 
 The real .luestion then is, whether the Council by by-law. or the Corpora- 
 ti<.nl,y agreement, could deprive the Council of the right to exercise any such 
 power. I am of opinion that neither of them could ilo so without statutory 
 authoritj-. 
 
 The right to use the streets as highways is tiie right of the public generally 
 not that of the inhabitants of Winnipeg alone. In exercising its powers respect- 
 ing the streets, the City Council is not merely the agent or the governing body 
 of the City » ■ .rporation. or of the ratepayers, it is also a pul,iic body, having 
 these powers vested in it on public grouniis. 
 
 Although a railway track may constitute such an obstruction to the free 
 use in some ways of the streets, that, if constructed without authority, it would 
 be a nuisance, yet experience has shown that the facilities afforded by such a 
 structure are so great, and that the extent of the obstruction occasioned by it 
 may be so minimized, that it is really a valuable aid to the traffic of the streets. 
 In the United States the doctrine seems tirmly settled, that the laying down of 
 rails on the street and the running thereon of cars for the conveyance of 
 passengers is only a later mode of using the street as a way— that it is a change 
 in the mode only, and not in the use. See Briggs v. the Lewiston & Auburn 
 Horse R. R. Co., 79 Me., ;i63: Williams v. The City Electric Street Railway Co., 
 41 Fed. Rep. 55G: Halsey v. The Rapid Transit Street Railway Company, 
 20 Atl. Rep. 859; Lockhart v. The Craig Street Railway Company. 139 Penn. St. 
 419. 
 
 The evidence in this case shows that the railway track under some circum- 
 stances might even facilitate the ordinary modes of traffic of a street. 
 
 The Council, then, in tH power to pa.ss By-laws upon this subject, was given 
 an important discretionary power, to be exercised in the public interest. Cer- 
 tainly it was not obliged to authorize the construction of any such railway or to 
 allow any particular applicant to construct one ; and it might by its By-laws 
 limit the number of such tracks to be laid on any particular street. But, by the 
 
 3 
 
nimwar upon any of the Ktroots 
 HanK'."utc. 
 
 Plaintirts' Counsel that this 
 ) such railway, or one sucii 
 t the power thus given was 
 it enabled the Council to 
 particular street, under the 
 or bodies, as the Council 
 t. 
 
 y by-law, or the Corpora- 
 I'if^fht to exercise any such 
 1 do so Avithout statutory 
 
 (lit of the public generally 
 3rcising its powers respect- 
 ■nt or the governing body 
 Uso a ])ul)lic bodv, havino- 
 
 n obstruction to the free 
 ithout authority', it would 
 ilities afforded by such a 
 struction occasioned by it 
 ) the traffic of the streets. 
 
 that the laying down of 
 s for the conveyance of 
 
 way — that it is a change 
 . the Lewiston & Auburn 
 ctric Street Railway Co., 
 reet Railway Company, 
 ,' Company, 139 Penn. St. 
 
 rack under some circum- 
 Kc of a street, 
 on this subject, was given 
 le public interest. Cer- 
 f any such railway or to 
 t might by its By-laws 
 iular street. But, by the 
 
KlIXAM, J. 
 
 JunoE's Reasons. 
 
 1 
 
 j 
 
 luterprrtation Act of M,mtol,a, C. S. SI. cap, 1, ,„c. 7, ,.«. .„ 
 
 - •-="»-=.r^.=rn^^^^ 
 
 Any U,„it thus flxed by the Council, tl.erefore, nhouM be cha„ge,l. Neithc. the 
 
 autho, ,t,- thu, given, unless under other statutory authority 
 
 Any attempt to lin,it these powers would be an atten.pt to change the Con- 
 
 stitutiou granted bv the Le.»islntin-o Tk ■ 
 
 „,.,. . ■ ""^S"Mu>0- Th=se views appear to bo ,„p,„rted hv 
 
 W decisions ,„ Hog. v. The Governors ot Darlington School, 6 Q. K 0,,2 717 
 .ullnier V. The Midland Railway Company, „ Ch. D. CU. Ayr Harbo: Trust es 
 
 . Oswa d , App. c. m ; Vandecar v. East Oxford, ,, Out, A. R., 131 ; Thomas v 
 
 Ihe Rail Rond Co., 101 U. S. 71. 
 
 the li!"! '.'"■' """' '"""" """ '""' '° """ °'' '■"■°'«' «>■•'""•» '" -''iect to 
 the hmitation, in see. 6 of the Interpretation Act,- 
 
 I. l..o.n.,.,..i ,,„„ ,ta";r,t' """"' ""'° ""'- "■°"l--P"-.lono, Ota, 
 
 Naturally, the power to authorise the construction of street railways involved 
 t « .ranting of a privilege under which money woul,. be expended : and it would 
 
 uthouty to construct in the midst of the work, or to render it nugatory by 
 
 ...k.ng «„-„y any right ot operation it might give, or by granting „t,iet 
 
 a^eges inc„ii,.ste„t therewith. There wonhl, then, apparently'be an Imp.ie 
 
 "t ■ '"" "•""■°'- "' "" °»'-'' <" P- by-l.uvs authorising Lcn 
 
 "'T: ""' " ''"'^ ""'-*'» '» '-i' e.xp..ess .statutory power by 
 
 ■ ..*e.. .,n to any greater extent than is absolutely necessary to attain tl e 
 ".I- ... A.:t, and any sue,, implied restriction wonid seem to extend only 
 
 aa tenanee and operation of the railway. It appeal, to me that, at most, there 
 
 I "; """'"' ''" ^''°^'" '■'"'«■»" "l'» «» powers of the 
 
 unmed than is involved in the PlainliflV own Act ot Incorporation 
 
 V..V, that Act gave to the Plaintiff Coi„p„„j, subject to a condition 
 precedent, a statutory right to construct and operate railways on the .streets ot 
 
 The condition precedent was the obtaining ot permission from the City 
 which permission itself could be miKle conditional and be limited a, to time 
 
 The inconvenience involved in any attempt to have difterent sets ot tracks 
 
', s-s. 20, 
 
 r orders Is conferrod, It shiill 
 eoiiicd expodioiit. 
 
 I be changed. Neither the 
 16 Legi.shiture, or lessen the 
 thority. 
 
 itteinpt to change the Con- 
 ippear to be supported by 
 m School, 6 Q. B, 682, 717 
 611; Ayr Harbor Trustees 
 Ont. A. R., ISl ; Thoinos v. 
 
 )ko By-laws is subject to 
 
 ivith the intent nnd object of 
 nj- word, exprosHlonor clause, 
 
 street railways involved 
 e expe;i.led ; and it would 
 k-a power to withdraw the 
 1 render it luigatory by 
 , or by granting other 
 apparently be an implied 
 y-laws authorizing sucii 
 'ess statutory power l>y 
 necessary to attain the 
 Id soeni to extend only 
 f with the construction, 
 5 nie that, at most, there 
 ipon the powers of the 
 ncorporation. 
 subject to a condition 
 ways on the sti-eets of 
 is may be requisite for 
 
 mission from the City, | 
 limited as to time, 
 liferent sets of tracks, 
 
Judoe'.s Reasons. 
 K.u.M. J. .uanagcl ly .liHorent pe..ons o,- con^panieH. upon, coinci.lent. or nearly coincident 
 P'.rt.ons ot tlu, street, suggest at once the necessity for some restriction of the 
 powers of the Council, an.l that son.e such was contemplated l.y the Lc-gislaturo 
 turther appears fron. the right of occupation given to the Plaintiff, and the pro- 
 vision m the fourteenth section re.,uiring carriages and vehicles to turn off the 
 track. 
 
 But l,y the ter.ns of the Act it^3lf the right to use and occupy the streets is 
 H lunited one. It is (section 9) limited to .so much as 
 
 r,.n„.n;:rrm:::.^"'"^^" " "^^ -''-'■ '--'• '- -'- «" "- -"- «- ^^^ 
 
 It is well settled that private acts, giving special privileges a« against the public 
 are to he construe.! strictly. Proprietors of the Stourhridge Canal vs Wheeley 
 2 B. an.l Ad., 792 ; Gildart vs. Gladstone, 11 East. G85 ; Priestly vs. Fould.s. 2 
 So. X. R., 22,S: Barrett vs. Stockton un.l Dover Railway Company 2 Sc 
 N. R. H37, :i Se. N. R., 81.5. « Sc. N. R. 653. Upon no principle then docs 
 .t seem possible to in.ply in the Corporation a right to contract its council outof 
 the p..w..r t.. uuthori.e the c.nstruetion of street railways np„n any portion of a 
 street not aetMnlly re,,„i>...,i f,.,- th.. Plaintiffs' .s,.t.s .,f tracks, switche.s. etc.. and 
 for the ruimiiig nf ears therenn. 
 
 The Pi.intiflk' Counsel relies on the word "cm.liti.m " in the 9th section 
 and the pow,.r to n.uke.' any agreement "c.nlV.nvd on the Council of the City 
 l.y the I7th section of th,. Plaintiffs' Aet.ns givingthe necessary authority. But 
 here aga.n th. principle of strict construction applies. The word " condition " is 
 one so frequently used in a loose sense that it n.ay be very easy to in.ply from 
 the context a n.uch wider meaning than its proper one, as was done in Walker vs 
 Hobbs. 23 Q. B. D., 458. But the natural signification of the word is that given 
 to It m Ex parte Collins, L. R. 10 Ch. 372, and Ex parte Popplewell. 21 Ch. 
 D., 73. Ordinarily it 
 
 ■' Dcotes «omethinK which prejudicially affects the interest of the donee " 
 The City was etnpowered to grat.t a pern.ission upon condition, which certainly 
 involves no authority to give .something beyond a permission. And the agree- 
 ments that might be nmde were confined to certain specific subjects, wlr'ch are of 
 such a nature as to suggest the res.-rving to the City authorities of certain rights 
 and powers restrictive of the Plaintiffs' right of occupation, rather than the 
 further Inniting of the powers of those authorities. I cannot infer from the power 
 to make any agreenient on those subjects a power of the City Corporation to 
 bind Itself to give as consideration for beneficial convenants of the railway com- 
 pany on any of these subjects something otherwise beyond its 
 
 powers. Could it 
 
 5 
 
cnt, or nearly coincident 
 r sonic restriction of the 
 ated l»y the Le^islaturo 
 e Plaintiff, and the pro- 
 ehicles to turn oft" the 
 
 id occupy the streets is 
 
 oj Ing of tlio riillN nni tho 
 
 IS as against tlie public, 
 Ige Canal vs. Wheeley, 
 Priestly vs. Foulds, 2 
 Ivvay Company, 2 Sc. 
 no principle then docs 
 tract its council out of 
 upon any portion of a 
 cks, switches, etc., and 
 
 in the 9th section, 
 3 Council of the City 
 ssary authority. But 
 e word " condition " is 
 •y easy to imply from 
 'as done in Walker vs 
 he word is that ^nven 
 te Popplewell, 21 Ch. 
 
 4 
 
 tho donee." 
 
 tion, which certainly 
 iion. And the agree- 
 juhjects, vvlv'ch are of 
 ities of certain rights 
 on, rather than the 
 infer from the power 
 City Corporation to 
 of the railway com- 
 s powers. Could it 
 
•A'DOE's ReasuXs 
 
 "■""'•' «3i.:;:::::::::; "■"■■t-- -- ™-..-... 
 
 -..* 1 e , , 2 c "'":■'"""' ' " """"" '■■ ■■"""^- '• 
 
 »n«..,,t it. " '"'■ ""■"■ ""■'■'■ '■» """""(,' «v.„ ,„ 
 
 I'poil the ..tli.r i|iiratioii, ,il,„, I t|,i„r ,, , ,. , 
 
 It li.l»l,c,l, conleiulo.1 lllotllioiii„vii,i V.,m1 . . 
 
 co-po-atio,,. .M„„, of .,„. ,„„., „ _.__,; ; ;, .^- •;; "; ;'^ 
 
 ..lent wo„l,l *,.,„ t„ 1,0 i„v„lv,,l. TI,o council i v "" 
 
 "«'■"■""-«».. K.OM.... t rr . :v;' ,'",' ■* -^ " 
 
 «.o,.,lv„„.„,,.i,„,,„ itl,it Tl,„,.i " ■ """l-y.- 
 
 -.to „oti,,,tt,,oH;., „.:.;: :;;::::-t"'r'' ^■"""• 
 
 .ntc-cttm, .„,„o .,..^y „„., „,,„„„,,, „.,,^„ ,, ;;;.'■;"" ''.•"^'■" 
 
 ..«-■». Tl.e,.,.„t i, f„,„e„t,y, if ...t .,„„all,., n,a ,c T ^ a '7* 
 
 "Pl*....t. ..s in c„«o „, a ,„,v„.o act of p„,,ian, n. , t , ^ 7'T "" 
 
 «.«Mn t„ec„n„ooft„c n„otiati„„, tw t„c o^tai.:: ? :r;r: 
 
 opcmtcl bj- electric power, the Pl„intiir wa,, „,k..,l to „ 1 ■. 
 
 .. .-o.™ of 1,,»„ f„.. t„e c„n,i„e.,.tio„ of tl.„ ;;:.:ei; ' "" """"" 
 
 But 1„ ,„.«er this n,ay he. it ,loe» „„t appear to n,e that there i, i„ the 
 .l«e..n,e„t. an, real „n,hi,„it, „,ich can re„ni..e the application of L' ^ 
 
 Ihe By-law l.e^,„s vvitli a recital of the VlnmtiiW Ao, f ■ 
 ;..p..e,.e.,,..entot,.e Cit. a„„ the ZZ^:ZZ::ZZ 
 for the co„.tn,ct,o„ „„,1 operation of a street railway. While this ! T 
 oxc,„,.e the application of powers otherwise „eriv«,, it J:Z^Z^T T 
 tl.attheo,,ectwas the f„lh„„e„t of the condition upon : Ihe P S^ 
 *t„^r, r.,ht to occnp, an. nse the „t..e.« for raiiwa; p„rp„.s < ^ eT 
 Theschenreof U,th B,,a„. an, A^.e,„ent appears to he this: that the 
 
 6 
 
 11 I 
 
vl'lish uii.I nmy m the 
 f.siil.plyin^rtlu.ni cheaply 
 policu or sanituiy powers 
 nipoHsihlo to imply from 
 incil tr) cJivt'st itsolf of 
 '■ "*" t'>»-' siiliji-ct matter 
 ithority nmst he thrown 
 •'I'f is nothing even to 
 
 mlants an. entitle! to 
 
 "III fortius accipiuntur 
 "1 of the By-law ami 
 f'li- as relates to the 
 '■ I am not sure this 
 assumption that the 
 tJie granter, the city 
 ivat- Acts of Parlia- 
 ' in tile position of a 
 lu'il or company has 
 -I'side equally inter- 
 ^•^■11 the most honest 
 > ''wr in the public 
 cise in their private 
 the language of the 
 very case it appears 
 t of railways to be 
 mit, and did submit 
 
 t there is in tJiese 
 tion of tb.e maxim. 
 ' incorporation, and 
 iiake an agreement 
 ile this would not 
 ests very strongly 
 lich the Plaintiff's 
 )se8 depended. 
 ''e this: that the 
 
Judge's Reasons. 
 in the A„ro /"""P"" "" C.n.panyaro sot o„t. This i, the more appare, 
 
 P r ThJlr": ' """"^ '^ '°"''" ™'^ °' "■' — *» »' *» Co„ 
 the Bv , T ■ " °°' '°«'"'"'^ '^"'^ <""■ '-» ">e leth clause, 
 
 Lht or°: : "'™'^"'""« """'« "' "■' ^^--ntthere fs a ^a.t 
 
 z^zr'zT r '" "■"""'°" "' " -""^ '- — - - 
 
 with the li„ If , • "■' °'''"'""'"' '""' P'"-" '» "-««o: 
 
 w.th ho l,„ntat,„„ ,„ favor of the publlo upon the right originally granted an, 
 
 N„„ „hal do those .nstruments purport to grant ? There is «rsl the ner 
 
 :::::tr""™"'*-"""'""^ "-- ""- - '^ - the:";: 
 
 the Cause eoncludos „,th something not directly expressed in the statuto- 
 
 It is not very easy to detenninc whether it was intentional, „r by a n.ore slip 
 tliat this riof it was frfuifofl f^ f). -i , - j' «. meie snp 
 
 eaiy it sho^d ho so"™!!, to :: r "°" "°' ^ "^ '"'"f"-^- ""^°"'"- 
 
 ^ .. , ,, *" ^''^ ^^'^ provision a reasonable effect It k 
 
 P0,s.b.e hat ,t was thus pnt, although ehnnsily, to show that it was! eld 
 »tl- -Iways. It is notieoahlo, also that, while the statute gave a right 
 
 " to U80 and occupy," 
 
 the streets, or portion thereof, so far ,« requisite, eou.litionally upon the grant of 
 por„n..o„ , thooivio corporation, the By,aw and Agree.enIg.Lt noslh pe 
 nn.s,„„,„ those terms. Apparently, this "o.elusive right" too, the place of the 
 ».t,o^of tho-Statute, and was substituted in order to.nake it ,„o„eLt tul 
 rg t o ooeupafon waste be exclu,lod a, against.,, but the ordinary puhhc traffic 
 
 s.> «ght to occupy an the streets of the City, or the whole of any street for 
 .■n.,waypurpo.ses or otherwise. It is, "cet, t„i 
 
 rau™;:."" ""-" *• •'■"" «'" .-»„■«,.«.„ „,„,. „ ,. „„,,^ ^ ^^ 
 
 Tiie gramniatica, connection of the word " a, » is ,vith ■■ .sue,,." ft i, 
 
 ".uthponion . . . „,|,«i||„„„„p|„j.. 
 TIio exCusivo riffht is bv tlia .-...■.■ t p., 
 
 .. st,.et or .street ' " " ■"""'""■ "'»'"'' '» ° ^'"^ "' 
 
 The flr.st question naturally, is, i„ what sense is this wo,,l "occupied" 
 
 pi 
 
ondition and limitations of the 
 1 out. This is the more apparent 
 ■ts to emanate from the City Cor- 
 ly of tlie covenants of the Com- 
 ried out, us in the 16th clause of 
 /Agreement" there is a grant of a 
 )f a penalty for obstructing the 
 ently thus placed in connection 
 e right originally granted, and 
 e Company and the public, 
 ■rant ? There is, first, the per- '\ 
 > run cars thereon, etc. Then 
 lequently mentioned conditions. 
 ;tly expressed in the statute— 
 
 ■ of such portion of any stroot or | 
 
 ' intentional, or by a mere slip j 
 t to the company. Undoubt- j 
 n a reasonable effect. It is | 
 3 show that it was to exclude 
 the statute gave a right 
 
 nditionally upon the grant of 
 Agreement grant no such per- 
 right " took the place of that 
 ;omake it more clear that the 
 but the ordinary public traffic 
 elusive right is not an exclu- 
 de whole of any street, for 
 
 .1. as shall bo occupied by snid 
 
 I "such." It is 
 :cupied." 
 
 "on, limited to a portion of 
 
 is this word "occupied 
 
Judge's Reaso.vs. 
 KiLLAM, J. employed? How «i.m„i,i ^i <r •, 
 
 -pan. w ™. . „„„p, ;:::j:r™^ -"'"'■■^••" '- •*-" «■» -«»„, 
 
 In tl,e case of tliB Pimlico etc., T,«„„„v P„ „ Tl . 
 uftl.eGrce„wicl,U„i„„ LR 9 B rr °°- " ''"' ^'»»-"«"' f^<>™'i"oe 
 
 And Quail), J., said 
 By ti,e «,.„«„, Act the Co,„pa„y .a,,ive„ p„„... c„„.„ti„„a„, to 
 
 " occupied by tho track or tracks " 
 
 and a portion exte„,Ii„g eighteen inche, on each ,ide thereof A„„„„„tl * .■ 
 
 "■"" "" "'" ---" -- - - *- ^«,ni,.i„g the co,„pa„?:c;n :z 
 
 anJ the description of the ,-aiI„ay i„ the Statute and Bv-law a, . , , 
 «.n«lc t..,.k iron ™i|„„y, the .,„,, " fwl^ " covered the 7 T ^ 
 
 support a car .„d the space between the rails T, ' T °'"""'' *" 
 
 w» .0 the ph,sica, occupation anthori.,:; the St!!"'"' ""' "'' '■*'™' 
 
 right angles to the .nils T """ " "«'" '°"' '" '°""""' P'—' "' 
 
 feet in .Iltlffor one seT „1 , '■" ^r """"''"'" '° -'^ ^^ P-^"-" »'«■.' 
 
 -.".o-....et.„i:^^.t::-:::~z: 
 
occupy the street ? Or, if by 
 ny," how should the railway 
 
 The Assessment fJoinmittee 
 that the tramway company 
 streets, but that it was an 
 
 I 
 
 vay to appropriate to their own 
 ing down tram rails wliich are 
 
 road; the tram rails occupy a 
 30tnpnny for tlio purpose of the 
 
 of the soil. Idonotthinkthoy 
 k^e of the surface of their iron 
 ud for their exclusive bonoflt • 
 
 IB gas nni water pipes ; both 
 
 thetram rail having the upper 
 •oad physically, and in exactly 
 
 ver conditionally to 
 
 ro.iuircd for the purposes of 
 3nrs and carriages." 
 
 occupation similar to that 
 luling clause of the Awee- 
 
 -eof Apparently, taking 
 company to keep in order 
 
 de of each rail " 
 
 By-law as a double or 
 ■ two rails necessary to 
 case, also, tlie reference 
 
 it consisted of a single 
 feet in length, placed at 
 ■ed, and in some portions 
 to pay for paving eight 
 irs to represent approx- 
 ' cars and the portion 
 
:^fr: 
 
 
 Judge's Reasons. 
 KnxAM.J which, in respect of each track and s^le track the Plaintiff Company was 
 autliorizeil to occupy and use. At any rate, even if more space in width were 
 re(|uired, it sufficiently appears that there is ample room for the passage of the 
 Plaintiffs' cars without interference, except at and near crossings by the cars of 
 the other Company. 
 
 I agree entirely with the contention of the Plaintiffs' counsel, that the A-^ree- 
 ment is not to be construed by reference to a particular clause alone, but the 
 whole tenor and object of V'; Agreement and every clause in it must be considered 
 for the purpose of the construction of each clause. So far I have referred to the 
 indications offered by the Plaintiffs" Act of Incorporation, the apparent object of the 
 By-law and Agreement, and the language of the particular clause under which 
 the Plaintiffs' claim mainly arises. The only portion of the By-law or the Agree- 
 ment which can by any possibility suggest that a wider meaning should be given 
 to the rirst clause, or which, in .lefault thereof, can itself give the right claimed, 
 is the twenty-Hfth clause of the By-law and the correspon.ling one in the Agree- 
 ment. That claust' reads, 
 
 «tr,.„.. 1'." "'" ''}''"l°''"'y °t''e'- P'"'"'-"-^ proposing to construct street railwrty« on any of the 
 propo aU .r"'',"' ^n r ^"""""^ ^°.""°"" '"" '"•'^•""^•' '^ "^^ '" b" «-"^-'. ^^o nature of ho 
 niM^ V , ■; ";: .n 1 , '^'""'"»";™t«." ^ tl.om. and tl.o option of constructing sucii proposed 
 no u . n ^ ">"'! ™"J"'""-^ ''^ f « I'"--"'" stipulated sltvll bo otf.rd : but it su.l, preference is 
 not acc..pt,..,l wiihm two n.onllis. then the Corporation may grant the privilege to any other 
 
 The object t)f this provision appears clear enough. The Statute ha.l given to the 
 Plaintiffs a general right to construct railways on the streets of Winnipeg, subject 
 to the condition that permission should be obtained from the civic Corporation. 
 The By-law and the Agreement granted a general permission as to all streets 
 not particularizii'.g or e.xcepting any. The only provision made for the revoca- 
 tion of this permission during the original twenty years of the grant, even as to 
 streets not built upon, is that contained in this twenty-fifth clause. With no 
 power to revoke it, there might be great .lifficulty in getting others to build on 
 streets having no railway. The Plaintiffs might refuse to build or to renounce 
 its right to do so. On most of the streets it would be so inconvenient as to be 
 practically impossible to operate satisfactorily several sets of railway tracks. 
 This served as a protection to the Plaintiffs, and at the same time made it desir- 
 able that the civic authorities should be able to determine the Plaintitii^' right 
 .so that the Compixny could not in.sist on duplicating lines to the inconvenience 
 of the public. 
 
 There is one possible construction of the twenty-fifth clause which may 
 seem inconsistent with the retention of a right to authorize the construction of 
 other lines upon the same street with the Plaintiffs. The clause applies to streets 
 
 9 
 
aintift" Company was 
 e space in width were 
 or the passage of the 
 ssings by the cars of 
 
 aunsel, that the Agree- 
 clause alone, but the 
 1 it must be considered 
 [ have referred to the 
 
 apparent object of the 
 ' clause under whicli 
 
 By-hiw or the Agree- 
 saning should be given 
 ve the right claimed, 
 ng one in tlie Agree- 
 
 •ailways on any of tlio 
 itod. the nature of the 
 truetlUK such proposed 
 if suoli profurenco U 
 privilege to any other 
 
 tute had given to the 
 i of Winnipeg, subject 
 le civic Corporation, 
 sion as to all streets 
 made for the revoca- 
 he grant, even as to 
 h clause. With no 
 j; others to build on 
 build or to renounce 
 iconvenient as to be 
 i of railway tracks, 
 time made it desir- 
 the Plaintiffs' riijht 
 to the inconvenience 
 
 clause vihich may 
 tlie construction of 
 use applies to streets 
 
mSmi I ^ 
 
 i-i 1 
 
 Jvuue's Reason's. 
 ..ccn„ic,l TI ■ """ ""-'"'«'" '"""" "" """ »"■ ""t tl.„,, ,vl,„lly 
 """ " "r "■■'■ '"""' '"" "■■" >" •■ "'■ "■"'"'> "- lino, ,1„ not oecp, i„ .„„ 
 
 :;:::::;■ "--'>■ - '- - >■ ■-■' m ■■ ..™ .h„!L „: 
 
 . """■ '." "';™' "'■ "'"- -^•"■« '" ■!» »^ - t. ,,„„.„., , ,;.„, 
 
 -> echo, to. , „,„„s,„„ „.a, gi,„ i„ ,„„„„,^^ ^,_^,^_^ ,j, ,„^ 
 
 ase.s t e pen„,,,,„„ ,,„,„, K i, „pp„,,„u^ „„.^.,, „„^ ^, . 
 e .«„.,„ ,,,, t ,. ,, „, ,,., ,„,„„ ^^^^,__„^.„ ^,, ^,_^ J^^^ ^^^^^^__ . « 
 
 uet V ,o„.,„g the „,,ject „, t„„ clause a, I ,l„, , e,.„„„t «,.i,,e t,. it this effect 
 
 "VT' """■"■" "'•""''^" ■" --»"•" -''i^--. i™^ I ».n ,.„„,! 
 
 o.a„.. « „.K,e,. „.«,„•„, tl,„„ tut „,,icl. f,.,. t,.e ..„„. ,1 J,t ^l,, to ..at 
 il.e 1„,„ ,«, counsel contend, tl,.,ttl.epHvilege g,.„„to,l to tl,e Plaintiff, 
 -», an, ,, a f,,ncl„„, „.„ic„ .,„,„„ „e deen.e,., to .e c.clnsive, on ti.e princip,' 
 a te,,., „,,ncl„.,.. P,.ope,.,, spea.in,, „ .,,,„c„ise i, .le.ive., tVon, a -ant „ 
 cC»w.,o..e..*by p,..c,.ipti„„ ..„ic„ presupposes sue,, g..„nt, A J 
 , V.„. A,,,., t,. F,.ane,.isc, p. .OS. At C„„.,„on Law a ,e.., .as unlaw. 
 „ out a „ ense ..on, to Crown, Blisset v. „a,.te, Willes, .1.; ,e,lett . AuHe,- 
 
 Wet, "■"■''-""*"'■ ™- «■■»■■«. "-regar,,,., as p,,,pe,.tyo, 
 
 w e t,,e g.,„,tee eouK, not ■« -Hvestc., „, si,ni,a.. «.ants to a,.„t„e,, t. vm 
 
 It! :r ! *"° '""™' "'■ °-^='°''™-^ "- "»' "»essa,,,y 
 
 extend to every puljlic ferry. ^ 
 
 T„ '"7'":'"'"'"°"- «P"-' '" "-C-I,ica,,, City Railway Co.npany v 
 
 ■Ik. People, ,3 III. 541, that the grant ,,y t,,. J.unicipal . Vapo-ation in such a 
 
 case ,s a grant of a ,nere licease, an,, not of a franchise. The franchise if 
 
 the er,n he a proper one, was granted by the Legislature. It n.ay he doubted 
 
 whe ,,er any sue,, franchise, except th.tof i„co,.po,.tio„, could have heengranted 
 
 ., the C,wn. At anyrate . know „t „„ aut,,„rity for the view that a egisla- 
 
 t.veg.,,ntot authority to ca,.y passenge,, on land. w„et.,er by rai, or Iher 
 
 special ,„ethod, and whether on or off a hig,,way, is p,.i,na facie, exclusive It 
 
 »ee,ns .nconsis.ent with .nodern ide., to i„,p|y ,„„, „ ....j^^.^ ^ ^^„ ^ '^.^^^ 
 
 10 
 
iro not thus wlioHy 
 treets on which the 
 rlo not occnp3' "» the 
 nvolve the idea that 
 ther lines alongside 
 lowfver, think that 
 at loa.st, there wa.s 
 power to construct. 
 3ets of tracks with 
 twenty-fifth clause 
 it us adding to the 
 
 revoke in certain 
 fy as showing that 
 hole width of the 
 ihe to it this effect, 
 t I am unable to 
 giving to the first 
 
 1 it seen)s to have. 
 to the Plaintiffs, 
 
 e, on tlie principle 
 I from a grant of 
 grant, 2 B. Com. 
 Ty was unlawful 
 
 Jellett V. Ander- 
 3d as property of 
 another, 13 Vin. 
 '•. Goodden, L. R. 
 
 not necessarily 
 
 ay Company v. 
 fttion in such a 
 'he franchise, if 
 lay be doubted 
 ve been granted 
 r that a legisla- 
 y mil or other 
 1, exclusive. It 
 IS well as with 
 
iiiniL'i 
 
 
 Judge's Reasons. 
 
 KiLLAM, J. the principles of constniin^r private acts of parliament. It appears, however, to 
 be clear that in this instance, the Legislature did not intend to grant to the 
 Plaintiff Company the exclusive franchise or privilcrreof constructing and operat- 
 ing street railways in Winnipeg, and of taking tolls from all who might desire 
 to use that method of conveyance. Three days after the passage of the Plain- 
 tiff's Act it ^ave to the City Council extended or clearer powers to authorize such 
 railways generally. These provisions were contained by the City Charter of 
 1884, 47 Vic, c. 78, s. 149, s.s. 129, and were copied into the Municipal Acts after 
 the City was brought under their operation. See 49 V. c. 52 s. 349, s.s. 68 (M. 
 1886), 53 Vic. c. 41, s 376, s.s. 41 (M. 1890)and R. S. M., c. 100, s. 695, s.s. (f). I 
 do not think then we can infer an intent to exclude the contruction of such 
 other linos on the same parallel streets with those on which the Plaintiffs might 
 build. Although, as I have said, the width of some streets is shown to be such 
 that room was left outside the portions occupied by the P'untif! 's line for the 
 construction of other lines, yet it is doubtful whether such could have been laid 
 down to advantage without crossing the Plaintiff's lines at some point. At any 
 rate it appears that the Defendant Company has found it necessary or advant- 
 ageous to make such crossings. These are the only points at which the now 
 Company appears to have directly interfered with the Plaintiff's lines, or to have 
 encroacli.Ml „n tlio portions of the streets occupied by the Plaintiffs. These 
 crossings are of two kinds, tho-se made for the operating of lines alongside the 
 Plaintiff's, and tliose for the purpose of connecting with lines on other .streets 
 Were it not l'..r the Statute 55, Vic, c 5G, s. 33, such interference and encroach- 
 ment would seem unlawful. By that Act, however, the Defendant Company 
 was authorizo.l, subject to the provisions of the Manitoba Railway Act, to make 
 such crossings, notwithstanding any rights of the Plaintiff Company. The Bill 
 <listinguishes between two kinds of crossings mentioned, and asks particularly 
 for an injunction against any but the latter kind. It does not appear to me that 
 it ispo.ssiblo to;mako any difference in this respect. It is doubtful whether, 
 apart from tlie Statute last referred to, the provisions of the Railway Vet, R. S- 
 M. cap. 130, s-s 26-30, respecting ailway crossings, would apply to such railways 
 as tho.se now in qnostion. But tl- Statute seems now to make these provisions 
 applicable, and to warrant the Defendant Company in contructing such cros- 
 sings, and in operating its railway lines by means thereof over and across the 
 Plaintiff's lines, under an Order of the Railway Committee of the Executive 
 Council. It has not been disputed that such an order was made authorizincr all 
 these crossings, or that the ci-ossings confonn to the Order.. Upon the argument 
 in chief no question was raised as to the validity of the Order, but in reply some 
 
 11 
 
appears, however, to 
 inil to grant to the 
 Htriictingiind operat- 
 li wlio might tlesire 
 issage of the Plain- 
 ers to authorize such 
 the City Charter of 
 Municipal Acts after 
 52 H. 349, S.8. 68 (M. 
 )0, s. (395, S.S. (f). I 
 contruction of such 
 the Plaintiffs might 
 s shown to be such 
 intirt 's line for the 
 >ul<l have been laid 
 ame point. At any 
 icessary or advant- 
 
 at which the new 
 rt"s linos, or to have 
 
 Plaintiffs. These 
 lines alongside the 
 s on other streets 
 once and encroach - 
 ifendant Compan}' 
 ilway Act, to make 
 ompany. The Bill 
 I asks particularly 
 
 appear to me that 
 doubtful whether, 
 Railway Act, R. 8- 
 ly to such railways 
 3 these provisions 
 •ucting such cros- 
 ver and across the 
 
 of the E.xecutive 
 de authorizing all 
 'pon the argument 
 
 but in reply some 
 
•^■i!;' 
 
 Ji'MoK's Hkasoxs. 
 
 KlM,.\.\I,.J Slid) woiv siii.'r,.f I n • 
 
 not c,„„i,|.:,. ^Z ' '"' """ "'"'■ >■ ■""' ""' «">• "•■BU..1 1 .1.. 
 
 ■■' t' ;;! t::":::'"' ""■ :"""" "■■■■"■'■■'■ "-i- « ^^ .-en, 
 
 ..p-a.i „„..;;"; ' ""?' ^» ■■■• '-■ -■ ««i"«tt,„. 
 
 -tiinea ,,, i!j : :; :: ::."""■ """ ■"- "-' «- •■i'^- c...p..r.ti„„ „., u. 
 
 '■'^"" '" '- >*■■ "- '-e„ ,•„ „„, „., ,:° ; "° ,;;,;:';«; ;■ "-;' -y 
 
 not shown that the Plnintiff r , i *'"''' ''""''• '^ '« 
 
 — ^'^^'■^.^z^z :::::::: "■ "■'■ "^- -"-- 
 
 nccessarv result of H.,> .^- • t . "^'"ns. It is, I think, the 
 
 st,l, to exist, l,„t ..ct ,-ot to I,, definitolj. ,n J„w If .r H !'" ■"""""' 
 any attempt in that .lirccHon, „„J ,-. W ,bun7rh t ! "" *" """"' 
 
 Aut„„,.itie., t,,. to p..ev.„t the «,„e, t„ „ „, ! ' 7T' "^ ""' "™ 
 Fl.u„li„:,- ,.ig,,„ i„ H,.e „,p<,t. '" ""= '■■»= '» »n'i*r the 
 
 The Bill also a»ks that ft 1« declared that the Citvh.,l„„ >, • 
 itae. of, o.. U, .o„t..„ct a.a,, it, Hght to pe,™ u pI ,;r"""! "" """^'-^ 
 .l.e n,otive power for propelling street raiL, eal U „ , " r'T"''"^ 
 
 a.-.n,„e„thasWe„atte„.pted,a„d it does nolsee.a tl! ^ ^ ' ' "" 
 opinion upon it. '''''"''' •^^P^ess any 
 
 I wisl, to a,hl that, although I have made reference to s., , 
 n.™ero.,s eases i„ the A..,eriea„ .ports, to which we i:^!^^ 
 e«,.„„.d and conside,«l ..early all of those which have „„v , „., 
 point that I have ..„ discussing, .„d p„rtic„,.,., «.ose I;T:;: J^ ^ 
 
 12 
 
'•Willy iirgut'd I i|,> 
 
 ) iimkc i-xtonsioiis 
 ictidii iigaiiisfc the 
 those streets, and 
 I'l Hiiij construct 
 occiipifd by the 
 uch .streets until 
 iiiif, uikI has not 
 porution may be 
 ' the streets, t) 
 uis Jie^rJected for 
 
 the Defendants 
 I made to the 
 pp'-ar that any 
 tii'i- luuid, it is 
 ty ei)o;ii)eer, or 
 x^ets, or otlior- 
 ■*, I think, the 
 
 tlie Plaintiff 
 'lause, already 
 igiim! perniis- 
 
 line appears 
 
 fit to make 
 >e Defendant 
 or the Civic 
 consider the 
 
 ''Y to deprive 
 3Jectricity as 
 "t, also, no 
 express any 
 
 '•-ny of the 
 ■red, I have 
 : upon the 
 'I'llf of the 
 
.firiMiE'H Reasojjh. 
 iii..y an- very ,nt„rtmti„L' hikI i.wtriioh-v,. i . • 
 
 uin.iii 11 Would lie li«>(>i>Ksiirir t.. , ■ I 
 
 .l,.ci.,i„„.. '' ' ■^'"'"»- '""I " ■ '1«t ii|...i, Iho 
 
 13 
 
iny int.'!Ii^ent 
 listiiictions he- 
 ■Huct tipoM the 
 
 ! Cd'ilfl Ite (ii.s- 
 ' thou^rht that 
 
 ith costs. 
 
 V 
 
3n the piiv^ Council. 
 
 O.N- A......VL ..UOM THE Cl'UT <.K Ql'EEXS Be.NV,, koU M.v> 
 
 WITOBA. 
 
 JIETWEEN 
 
 HH WI\Xn'K(; STRKKT KAILWAY COMl'AXV. 
 
 Appellants 
 
 AND 
 
 TIIK \VJNXr,.K(i KLKCTRK; STRHKT KAILWAY COMPANY 
 AND Till-: CITY OF \VIXNll'K(j .. 
 
 R"ttp(wdents 
 
 Cask ,ok Tin-: Rkspondknts-Tuk Winn,,.,,,; Strkk- 
 Kailwav CoMI'ANV. 
 
 (Draft). 
 
 1. Tl 
 
 lis appeal is fn.iu tlu' imaui 
 
 QueeuH Boiicli of the P 
 
 IlldUS 
 
 .locisioii „f tho full Court of 
 
 Killaiu J J. ) jii-oiKiuiiccI oil the 1 
 
 •"Vine of Mauitoha, (Taylor C. J., and 
 
 Justice Hi 
 
 ill "f timt Court 
 
 3ti» May, ],Sf),S. ,ifli 
 
 Diiliuc nnd 
 i-niiu-,' tho (li'cision of Mr 
 
 Plaintiffs' Uill wit), costs 
 
 I"'"""inc...l 12th Doeemher, l.S«>;j ,| 
 
 suiissinfjf the 
 
 2. Tl 
 
 >o suit was cnnuciiciMloi. tho 27tluky of July, 1 
 
 declaration that th.' Plaintitf 
 tramway purposes for 20 years f 
 and Portatre A' 
 
 .Si); 
 
 s were entitled to tl 
 
 mainly to olitain a 
 
 le exclusive riirht to the use f( 
 
 ••oni 1 2th June, I ,SN2, of the whole of M 
 
 ninniniT the 
 
 "'""■'■" tl- City of Winnipeg, upon whieh 
 
 :or 
 fiin Street. 
 
 II- street vnrs, and asking f. 
 
 Com 
 
 paiiy from operatino^ tramw 
 
 tlie Plaintiffs were 
 '!• nn injuncti..n a-aiMst the Defendant 
 
 nsked that the Defendant C 
 
 .i.Vs on thos,. streets. The l!i|| of eomnl 
 
 oi 
 
 •'vys upon certain other street 
 
 "iimi.y nd-ht he restrained \ 
 
 Street North and Nth A 
 Nortl 
 
 « in Winnipee; ]< 
 
 plaint also 
 i'"iii iiperatinf' tram- 
 
 s' t 
 
 •nuo North streets, 1 7th A 
 
 ii.iwn as Central Av 
 
 enue, 14th 
 
 > <'ii whieh the Plaintiffs had no | 
 
 Venn.. North and 24th Street 
 
 nies, 
 
 the I5vd 
 
 tl 
 
 iiw and 
 
 to, tl 
 
 ,'reemeiit and their Act of I 
 
 H' plaintiffs elainun^r that un.ler 
 
 ^^'y had tl... first ri,irht t<. huild and 
 
 iiPorporation helow referred 
 
 any street in the Cifv of \V 
 
 construct street rail 
 
 no n>ht to occupy same f.»r stieet rail 
 
 I'lnipe^', an.l that the Defend 
 
 ways ujwin 
 
 wav 
 
 privile^re. until the Plaintiffs h.id heen offered 
 
 'lilt Company Jiad 
 P"'-Posos, ,„• the City to jrrant that 
 
 anu ha.l not accepted such offer within two monf] 
 
 tlie privile^'o of construct 
 
 I IS!'" S 
 
 !unt 
 
V 
 
 KKT 
 
 ill Court of 
 
 J)ulnic and 
 
 isioii of Mr 
 
 suiissiiiff the 
 
 r to olitaiii a 
 ' the UNO for 
 .Main Street, 
 iiitirts were 
 ' iK'ffiulunt 
 iiplaint also 
 utiiifr trani- 
 vi'iiiu", Uth 
 2UIi Street 
 i^liiit iiiuler 
 \v rtfi-rri'd 
 
 fjriant that 
 2tijig same 
 
 \ 
 
 Iaxitoda, 
 
 Appellants 
 
. . Ihe .substantial ..uostions with reference to the two branches of the 
 Pla.nt.frs case referre^l to in the hvst para^^raph are (1) whether the City C<o«ncil 
 hau power to grant the Plaintiff, a n.onopoly or exclusive rights un.Ier the Statutes 
 
 >eWreferredto:(2)whetherthoy actually grantedsuclui^htsbytheBy-lawand 
 Con ract. the tonus of which are below set forth ; an.l (.S) whether there was power 
 "1 the Cty to agree with the Plaintiffs that no right to buiM trannvays should be 
 pven to other parties proposing to build on streets not built upon by the Plaintiffs 
 untU two n.onths after the Council had offered such right to the Plaintiffs 
 
 \ ^'''\^lf «f ^^^"""P«.^' was incorporated by the Manitoba Legislature on the 
 Uth day ot May, LSTo. by a special Act of Incorporation, Chapter 50 of that 
 yoar. By sub-section o, section 107 of that Statute the City was authorised to 
 pass by-laws 
 
 " '" '"""""" """ "" =•"»■ "■«"■"'■ ""<"■"■' «... .1.. ».« „,..„^ „„„,„,.. 
 
 ■™,. Statute w.„,„„™,,,,l 1,, t,,. .Manit. «t.t„t,. „f ,«77, ,»;», ,„,, ,„,,, 
 
 1^S1. l...t tl,„ „„ly ,«t„.. i,„p„,.t.u,t to U, „„to,l i„ e,„„u..ti„„ „,tl, the ,„„tte,, 
 ." .|..e«t...,. I,e,v, !» tl,e .St„tnt„ cl.apter 2(1, .M«,.it.,l,a .s,,,,,,, „,. ,,,., ^^., . 
 «■.. .«.„t,,l t„ „„ t,„. .«t„ ,,a, ,, Ma,, „,, „,„„,.,,,,,„^ y,„ ^^^^^ ^■; 
 tl.e Cty ,„„I „.l„el, e„„t.ine,l tl,e f.,ll„„i„j, cla„»e ,^lati,« t„ tnu.uvajs :- 
 
 ■•CI.IV, Tlif C'lMiiicil may ims.s liy-lawN 
 Charge, ,„crt..,„." " * '"" """ *-"■""""" "'^' •"'""^' """ <- 'lxi„« ,„e ra.e.s to .x, 
 
 Tl|e City of Winnipeg has ever since had the nower contained in this sub-section 
 .tl.Mng repeated in the same words in section 149, sub-section 129 chapter 78 
 or the Statutes of l,s,s, : section 349. sub-section OS. chapter 52. of tl. Statutes cif 
 1-SSO : secfon .^.0, sub-section 41, chapter 51 of the Statutes of LS90; and in the 
 present Municipal Statute of the Province, section C05, sub-section f. chapter 100 
 Kevised Statutes of Manitoba. 1891. 
 
 IV. .statute chapter 2(i „( 18,S2. al«, oo,.tai,K,l the lbll„wi,., ,eeti„„» (,55 
 
 Htrcol, bri.lKo or hi^lnvay, rvsvrvo." '"* '""' °"^ ""<-''' road. 
 
 "l.m KvorjKiiH.publloHtrect. road. .sQimro. lane brlrtir,. .... i .. . 
 repair by the <or„oratlon.' " '"' '"«''»"J ■ ^'mll be kept in 
 
 "(n. All per-ons havinif n.nilo roHorvations in any «t root mn.i „„ . ■ . 
 
 wltldn six Mu,„,,,. after tl..pasHlnK of ,,WHA..t to the City cLnoillnT" . . ""' *"'"" "'"^"■ 
 .-.on. an,. a...i..M„,on, „n,l«r the proviH.o„„ of thin A "^Zinf ,?';'''' " ""'"""""'• 
 
 othorwiHo 8uch claiM. «l,all conso to oxlnt.' ."t.tinaf,.^ ,„.ovi.l„,i of snob claim. 
 
 5. The PlaintiHs- dai,.. to the exclusive privileges asserte.I in the Bill of Con. 
 pla>nt ,s founded upon By-law nun.ber 178 of the City of Winnipeg passed by thj 
 
dies of the 
 'ity Council 
 he Statutes 
 By-law and 
 was power 
 i should be 
 le Plaintiffs 
 ;itts. 
 
 tureon the 
 50 of that 
 horized to 
 
 \ 
 
 iri'oii." 
 
 1879 and 
 le matters 
 '^^, which 
 'elatinof to 
 
 ■s : — 
 
 reels or 
 s to Ik; 
 
 b-section, 
 apter 78 
 iiitutes of 
 id in the 
 ipter TOO 
 
 $ 
 
 >ns (155 
 
 lit bo 
 roiKl, 
 
 iptin 
 
 ipplj- 
 uttlu- 
 liiliii. 
 
 f Com- 
 hy the 
 
1 : ' ; ""■ '"""'"■""* "^ '"' ■•"™" »■"' "- ■^— " •■■"--' tat* 
 
 l^c Act of „e,„.,„„,ii„„ „. , ^.„^ ^^,, , ^^ ^^^. _^^^ ^_ ^^^^^ 
 
 °° "'°"-';';^ '■"'■ "'■" I'-p- "- -ci. ni. A.t i..i,„ „s f, „,:_ 
 
 thetlUeof ..TrwiX' ^trc ■'Tll'l'''n '"*""""■" "'*''"' '""' "^''' '"">■ "' "'^"rpomtod »n.Ier 
 City Of Winni,H'««n.1 tl.o 1 ■ r « ^ Company," for tlu. purpose of o„.mtln« Hlrcot nxllw.iys In tl.e 
 
 power to make extension, nl., . Zr T """ "'""■ *"• •"""'' "• """''' «"" <<"""""■>. «"h 
 
 ponte." ""• """ '" »'"»'««■»""•■ with any other street railway eon„.ny or com- 
 
 6. The clauses of this Statute rciiod upon ly th. Plaintiffs as supporting the 
 power of the Council of the Pifv r.f w ■ . l ^ » '"*^ 
 
 to are as follows ; 
 
 «n..opei;r;ni;:i:T;::i!'z!;' """rr "" ""'"^""^' '- ^''""•"•^'' -«'"'«"-■ -->iete 
 
 ne<...ry-M,.,...,,:; ;J: 3^^ <-i„«,e tn.ek iron ntiiway. w,.,. t.,e 
 
 tothe ... .,..„ „„;,„" ""■'"';- "-• .--.ue Of ea,., oaniaKes, an,l other vehiekvs a.Inp.ed 
 
 carry ,«,sen«e. , t ":«„,, ■/""'" """ "'""""""• "'''°>-''f «■-■ •"'" '- <«k-'. .mns,K,rta„<, 
 
 «mhori.e„ „v .„e .„n, oH .Tf " ^ Z, """ 7 I^"""' '""™'"' "' '"^■'' •^'"" "•""- >--- - -'V be 
 orany of „.em orany t f 7\ """"■"-'■"'- '-'"V "^ "-" in „„ie„ «„,., Parishes. 
 
 .heiim.ts..ft,. , ;; : 7"'"^^^ ^"""'^■'> -'-"v^'ly .O- hyhuv.an,. ontM., 
 
 works, h.u..in.J ; r r;/,;;:'? "T """ '" ■"■ """ '=""^'™^" «■"» """"'«'" •"• «—>• 
 
 t- "I'l'imnnsanileomenlencestlierewithcomiectwl." 
 
 -V -.hJ'.v;;::;;;;;;z;:r:::::;' 't """ """""^ •" -^^ "-' •"■■■■"^'- -- -" -^^ •"- - 
 
 limit,, „en.s ^ Z^:^Z^' ' "'i' "' '^ ™"""^' " "'""""'' """'" ">- -'-"- 
 
 ^--.'--..^.'^:::;:;;::;:-^^^^^^ "- - 
 
 Which aii^on.,.;".;::::';:;, ;!n:"' '"'■ """ "r "' ""^ '""■•"" ''- ■" "•'"'•" -"> >-*^-. - <" 
 
 by n..K...,i.e,v an,;,,::; . ,:^, ;:::;;:,; ,r"' *"^ •"- *- """ • < '"•■ -'■• --m-.- -e her«. 
 
 .he eonstrne i, , ^ I , 'r ^ ! ; il*;: "•'""^"•' """ -""- "^ •"- -- - "'^'-..vs, an., 
 
 the sai.I streets an, „i..„' "'«'■•."'""""- <- -we,., an,| ,l,e layinuof «as„n.l water pl,K>s In 
 ^'.a.. he ,ai„, t.,e ^'^I^S^n'T': "'""' "'"""^ """ "'" -''-- streets a„n,K whie,. thesame 
 ...i,. i-v the ,„n,p n ' "' """ ^'^■"" '"' ^ ""« "'^- "'-• <"-" "'"<>"»' oHieenses to ,h. 
 
 ^'"" >• •''-•--'•'-""■.'"« ori,„,.,,,n«:rt,n.i::!:;;:;;;:'/'''''''"^^^^ 
 
 «"" '•"—. -■• -i a,i neeessary o^.^e^ ^^i li Z ^ ^ "' "''' """ '""^""™'" 
 
 P«rtl«, eoneenxKl, an,| for tl,e enjoining oi:..lie„..e t . ' "•«"••«""'» I't .l,e ...,n,lnet of all 
 
 Com,«nysears. an„ r,,,- re«n.a,ii, 1 . l'' TT' '"' '■"""""""-' '"" """"•>« "f"<^ 
 
 7. The cIhusl's of tlio Bv-hiw Xis. 1?.^ of ^j 
 
 if- ( 'ity of Winnipe<( (repeated in tl 
 
 lie 
 
\ 
 
 t eiitereil into 
 lu- 7tli. flay of 
 ; entered into 
 'Ills Statute is 
 e Le<,nslature 
 lows : — 
 
 milud under 
 ilwiiys In the 
 Monnn, with 
 li all ix)wors 
 «iny or com- 
 
 pporting the 
 ove referred 
 
 I, complete 
 y, Willi the 
 •les adnpicd 
 Parishes (>r 
 insjiortand 
 r as may be 
 ill Parishes, 
 nd outside 
 necessary 
 
 'h parts of 
 , Ihrtiijdnij 
 id Pity and 
 lorlzed to 
 res|K'Otlve 
 nmjiirllml 
 
 II III! (hill- 
 
 ihcs, or In 
 are here- 
 
 •inlriiiiinn 
 ■ays, and 
 I' I'llKS In 
 the same 
 ises to be 
 ■hicli the 
 lion, and 
 Its of the 
 
 »• or by- 
 eenients 
 net of all 
 IK of 'he 
 -•els and 
 
 ;ed in the 
 
Ha.ne wonls in the A.^eenu-nt referrcl to) on whicl. the Plaintiffs rely for the 
 grant ot the excl-tsivo ri,,I>t an.l the right to prevent th- l.uil.ling of rival lines 
 on the streets not huilt n,,.n .,, the., are clauses 1 an.l 25 of the Hy-huv, in the 
 ollovving words :— 
 
 m«ua«.;;;«.:;:;:t;':;::r!2;;:rr'"rT '"" """^ """"-■" """ -^'-^^'^-' - — • 
 
 of «,lrt city." ""'" "•*■"""'""' "' '"">• "« ■-''^^''-"O- for .he prolc.tlon of the citizens 
 
 "Ot oc^z tiz:"';cr 2;'"'':'" " ^"■"""■' "'-^^ ■^'"^^« ^ "'■ "^^ --- 
 
 -"'".io„,.arehea.i„.s. :r,:;: ::rr;:::™^^^^ 
 
 month,, then theeor,.nulo,. .ay ,™.u .he ,...,>«;. ZHZLJ^Z:' " " """'^ '^"'^'" '"'^ 
 
 «. The Defendant Con,pany in their answer and at the hearing disputed - 
 () The power of the Counc:l of the City to grant any monopoly or exclusive 
 r^ht to t e Plaintiffs to the whole of any street for tramway purpose, under the 
 Statutes above ,,uoted relating in the City a.d Cu^pany; such grant involving 
 an agreement on the part of the Cif^. to refn.^ : .™. xorcising Iheir corpora*: 
 powers duru.g the period mentioned, 20 years, 
 
 (2) That any grant or exclusive right to tlu ..A > .troot was made or in- 
 tended to be made.-the exclusive right being ox.r...sed in clause 1 of the By-law 
 only with reference to the portion of the street occupied by the railway, thus 
 leaving th.- remaining portion of the street free for other companies 
 
 (3) The power of the City Council i« pass the 25th clause of the By-law 
 It bemg an unauthorized! restriction on the legislative powers of the City Council 
 and If there vwxs power to pass it, that there was any breach of it 
 
 (4) That there had been any breach of the contract of the Plaintiffs with the 
 City or the terms of their By-law.-the Defendant Company's lines being operated 
 by electricity and the Plaintiffs' lines by animal power. 
 
 (5) That this was a proper case for injunction. 
 
 ^ (6) The Defendant Company also claims that the Plaintiffs waived any alleged 
 nghts by their laches and delay, having allowed the Defendant Company's works to 
 proceed and great expense to be incurred before this suit for an injunction, and by 
 delay m prasecuting such suit. 
 
 r/) And that the Plaintiffs' Agreement was never binding upon the City it 
 not bemg such an agreement as w.vs authorized by the By-law. The answer 'of 
 ~ " •" ^'^' "* "iniupeg sets up practically the same defences. 
 
 4j 
 
\ 
 
 •ely for the 
 
 rival lines 
 
 -Ihw, in the 
 
 construct, 
 trnok rail- 
 , niiildtlier 
 iill)eg, imd 
 »r iiiiimaU 
 the terms 
 the same, 
 'at bfi mid 
 lie citizens 
 
 the streets 
 Tosal thus 
 m similar 
 tthln two 
 
 isputet! ; ™- 
 r exclusive 
 under the 
 involving 
 corpoi-ate 
 
 .tie or in- 
 le By-law 
 ivay, thus 
 
 e By-law 
 / Council 
 
 with the 
 operated 
 
 r alleged, 
 works to 
 1, and by 
 
 City, it 
 swer of 
 noes. 
 
10. The Doftn.lui.t Cinpany assert tliuir ri^ht to construct an.I opemto truia- 
 way linos in Winnipefr un-K-r By-law nun.hcr 543 pasHed by the Council of the City 
 of Winnipeg on tho Ist. .lay of February. 1892, an.I contract th.roun.ler granting 
 HUch right to Juuies K..s.s an.I VViilian, McKenzio. The rights un.ler this contract 
 were afterwards, as pernutt.d by chiuse M of the By-huv. transferred to the 
 I)efen.Iant Con.pany an.I By-hiw .543 was ratiHe.i an.I conHrn.ed by Statute of 
 the Legislature of Manitoba, clause tU, chapter 50. passed in the year 1892 as 
 follows: — 
 
 m« KlcHri!: TZ^u '"".'''"^""•^- '"■ """""•■'■'• '•■'"•'-' ' ^ »>•"•» '"• '".• '".V or Winnipeg r«„K^,. 
 .>K N.I,I,„n.H>.,v,.,a„ ,,...„,„„..„ „ ,„e .n,,........., ,„w..,., rl«l„s..,„, prlvllu^cH thereunder." 
 
 1 1. This Statute incorporating the Defendant Con.pany an.I cnHrnung By- 
 law 543 was opposed by the Plaintiffs bef.,re the Private Bills Connnittee .,f the 
 Legislature, but was passe.l with full knowledge of the clain. of the Plaintiff 
 and contains this provision in clause 33: 
 
 "^^<. N...hl„„l„n,ls A,..or.l.,.s..|u.lnl tluTWosh,,!! I„ any ,vay .UlWt ..r.ako uway any ri«l,t 
 
 a« thl., AU ha,. ,„„ ,.,,„ ,.,,,„, ,,„, „,,,rt„„„^ „.„ ^,„„„^^ ^,^,^^^_ ^^^^_^^ > 
 
 have ,«,wcr .„...>, I,ui.,. and ....rate .,s line of ...way acn-s. .„. ,,„... ..f ,„., w.nn.,.:K St Jt .^..w v 
 Com,«ny nnbject to the l.mvlsl..n,sof Ih. .M,u,ll.,l,a Hallway Ac." * 
 
 12. By-law .543 had been pas.sed by the City Cuu.iciIgra..tingthepowersthere- ' 
 n. n.entione.l to Ja.ues R.ss an.l Willia... McKenxie after open.fai.^ a,.d public com- 
 petition betw.,.en th..., a.ul the PlaintiHs. tor the p.-ivil..ges in ..uesti.a., in which 
 they and the Plai..tifts had each .leposited 810.000 with the City as earnest of their 
 honajides, a.i.l after full consideration by the City Cou..cil of the merits of their 
 respective pr.,positi.„.s, the ..egotiatio..s having laste.l a nu...ber of months and 
 each party having sub„.itte.l proposals of ter...s they we.-e willh.g t.. accept f..r 
 the f.-anchise. The powers given by By-law 543 a.v expres,se.l to be (clause 1) 
 
 "M.bjwt tn the .ewl rlK.,1, „rtl,u Winnie Slrcrt Itailway („n.|»iny " 
 
 and a similar .state..,..nt is contained in the first recital of the By-law. 
 
 13. At thr ti.i.e of thepassing .,f the Plaintifis' Act ,.f Incorpomtion, Winnipeg 
 was. u..,l is ,u,w, the capit.d of the Province of Manitoba. a...l was then a place of 
 about 25,000 pe..ple, its populati.n. largely incre.vsing at that tin.e. Its present pop- 
 ulation is about 30,000. The two pri.tcipal business streets are Main Street an.I 
 P.-rtage Avenue, each havh.g a width of 132 feet, the other streets in questio., 
 having a width .,f 66 feet. A co.isi.lerable part of the Bill of Complaint is 
 devote.1 to charging that it was inconvenient in the public interest and unsafe for 
 the public that tw.> riv al lines of tran.way should he operated on one street, each 
 
 ' IJ MJHB e BHUmili—Mm - — 
 
.0 truin- 
 lio City 
 nmtiiig 
 Diitmct 
 t) the 
 biite of 
 Hd2 us 
 
 I'd- 
 iiiil 
 
 1^ %- 
 
 )f the 
 intiHs 
 
 here- 
 coin- 
 vhicli 
 their 
 their 
 
 and 
 t for 
 
 1) 
 
 \ 
 
 !C0f 
 30p- 
 
 anil 
 bioii 
 b is 
 for 
 ach 
 
1-viu. -lot.l.l.,. Ii.,.,s on .Main Strout. Some evi.lence was glvcM. o» l,uth sides at the 
 l.eu.n.g on tl.is point, hut Mr. Justice Hain. In.fore svhon. the cause was 
 heard, and witnesses exann.-ed l.dd n^rainst the Plaintiffs and his Hndin^ 
 was concurred u,.on tin's point I.y the tlu-ee Judges of the fdl C.mrt on tlu> 
 nppeal, so that tlie ohj-ction .joes „„t seen, to he of importance. 
 
 U. The I).f..ndnnt Con.pany c.mn.,enced construction of their lines on the 
 21.th of May. hs.o ,„, ,„f„,, ,,.^. ^j,, ^.,^^ ,.,^.j . ^^ , ^,^^. j. _^ ^^^ ^^^^^^^^^^^ ^^^^^^ 
 
 structed ami in operation fron. the Canadian PaciHc IJailway line on Main Street 
 north to 17th Avenue Xo.tl, then alon,M7th Avenne North to 24th Street North 
 -uul then southerly ulon,, 24th Street North to the E.xhitition (Jronnds, these lines 
 hen.jrready for operation and heing first <.perated on the 25th of J,;y i.sQ2 
 The tran.way on the rest of Main Street was then proceeded .•„, n:.! wa* 
 con.pleted. together with the line on Portage Avenue, and ih. lines on Central 
 Avenue, 14th Street North and 8th Avenue North. 
 
 '5. The Defendant (Jompanys lines are single lines of tran.way. except the 
 Man. Street line which is a .louhle line, the single lines having switches and tun.outs 
 to e..ahle the ca.-s to pass. The lines of the I)efe,.da,.t Uon,pa..y are separate,! fron, 
 those of the Plaintiffs' on Main St.-eet a..d Portage Avenue hy dista,.ces which 
 en .hie .san.e to he operated without da,.ger or i,.: ..venience (see as above stated 
 .|ulg...entofBainJ.aHin..edhyfullCWto„appeal. The total le,.gtl. of the lines 
 of the Defendant Cou.pany at p..esent co..struoted is eight an.l a half miles and 
 the total length of the Plaintiffs' lines about the same. 
 
 Ki. The ,,ue.stio,. of the power of the Cou,.cil of the City of Winnipeg to grant 
 the Pla,nt.ff:s exclusive rights, turns altogethe.- upon the provisions of the Statutes 
 above ..noted (the Citys Act of Incorporatio.. 4.5 Vic. Chap. 36) ami the Plain 
 t.ds- Act of Inco.poration (4-5 N'ic. Chap. .S7). All the powers of the City of 
 N\ ......p g a..d its Cou..eil have been confe.-red by Stat,.t an.l its powerH are 
 
 n.m..tely set f.-.th i.. the various Statutes co..ferri..g its powers Up to the year 
 l.SSO. these powers were contained h. the Acts above ...entio..e.l. bein-. its Act of 
 I..corpo.-ation an.l the various Statutes a...e...li..g sa,..e. In LS8(i by Chapter 5-> 
 Man.t..ba Statutes of that yea.-, there was a consoli.latio.. of the Acts .-elatin.. to 
 Mu...c.palities..f the Province, h.cluding the City of Winnipeg n.l th. sL.e 
 systen. was p...sued of ...un.erath.g in detail all the powe.-s inten.lod to be con- 
 ierre,l or exe.-cise.l. This Statute was .vpeal.-l in Lsf.o by - The Mu..io;nal Act" 
 Chapter 51 of the Ma..it..i, a Statutes of that y.u- adopth.g a,.d continuh.g the 
 same system. TheCien -ral Municipal Act now in force. Chapter 100. Revised 
 Statutes ..f Manitol.t is a .evisio.. an.l p.-«ctical continuatio,. of the Act of LsQO 
 17. The City of Winnipeg Ixjing the c.-eatn.e..f Statute, an.l havingenmner- 
 
ttU..l Hn.l W..I1 .1,.H.umI Htatut..iy iM.Nvors arul .lutiis with .leiVrenco to tminway.s mul 
 many otlur sul.jfctMlH. D.f.n.lants conton.lo.1 it lm.l no powers excpt thone 
 Kivon in rxprnss wor.l. or l.y n.-cussary implication. Its |«.wor.s ,w to authorizing 
 the cnstrtiction of tran.way« on the City Stn.'ts wen-, .,ut8i.h. of tho PhiintiHs' 
 A/'t of Incori)oratiufi. .leriviMl from the City Char^i-r of 1882, Cap. 20, sub- 
 section 7, section ci.iv., al.,,v.. .|uote.l. pvinK p-.wer t.. .lo thrw thing's : 
 
 III "Tn iinihorizi! ilio I'otiHtriiiUon of Hny ntrcfl riillway." 
 (J) "and fop riiKuliilliiK and irovoriilnK lliosunw." 
 (3) •• Anil f(ir HxIiik tlio hUum lo bo clinrijiMi i liuruon. • 
 
 It is plain that nothing in this section aijthorize.l tho ^.ivinjr of exclusive 
 riglits. Tiie iMnvrv to authoriz... or regulate and govern does not imply power to 
 agree that similar privileges shall not he given to other companies or persons. 
 This clause authorize.! the City t<i confer tramway privileges ui>on any person or 
 upon any tramway c.mpany, an.l was pa.sse(l in the .same ^ ssion of the Legis- 
 lature as the I'laintiHs' Charter, and was in f,„ce iKifore the J'liiintiffs' My- 
 law w.ts passed, and i.Mntione.l „nv of the ..ul.jects ui.on which it was 
 the duty of the City Council to legislate impartially and ,vs often as tho g.M.d of 
 the City might rc..,nire, and .such power was , ,t capal-le of heing hargaii.ed 
 away. 
 
 18. The PlaintiHs- contention that it was intended that the City Council sh.ad.l 
 have the right to agree to exclu.sive rights in favor of the HaintiHs is mainly 
 founde.l on the proviso, in section 9 of their Act of Incorporation, The Hi-st part 
 of this secti..n is what may he called the granting part of the section. The 
 Legislature grants the power to construct tramways on the street.s, ami limits 
 the power to 
 
 •• Huch part, of any of tl.o strtot.nH nmy bo ro.,ulrod forlho purponoH of thoir railway track 
 tliu liiyliiK of tho mils anil Hiu riiimlnKof lliolr oarHiind currlaifuH." 
 
 Then follows the proviso, m.iking the exerci.se of the powers given hy the Legis- 
 lature conditiomd on ol.taining the coasent of the City. 
 
 •'ITovldc.IalwayKtlmtthocon.entofll.e.aMClly . . . shall ho , Irs, hart „„.! 
 obtainort. vvhoai-o lan-by authoriml to«runt porinlsslon lo .ho said Co.npany ,o .ons.nict thoir 
 mllway an aforesaid . . . „nd lo ,ho and orrupy the said s.r.Ws or highways „r „„,. 
 part of thon. for that ,...rposo. upon ««.!. condition and for H,uh poriml or porloils as nmv 1. . 
 rospeolivoly .,„ cod upon flc." ' 
 
 The function of the City is merely the giving of ,i license. The power to 
 construct and operate is not given l.y the City. That cmos from the Legislature ; 
 the consent of the City being necessary only as a condition to the exerci.se of the' 
 state-given power, and the City having p.)wer to impo.so conditions of ,i lawful 
 tmd authorized nature on the Company at the time of giving the license. This 
 proviso introiluces ti limiUtion, and was not int< ndcd to enabli; the Cit^ to dve 
 
S IUIl{ 
 
 iziiig 
 itiffs' 
 sub- 
 
 isivo 
 :r to 
 ions, 
 ti or 
 *gis. 
 
 By- 
 was 
 I of 
 ned 
 
 >ul(l 
 nly 
 iiirt 
 rhe 
 
 ris- 
 
 to 
 •e; 
 he 
 'ul 
 lis 
 ve 
 
If 
 
 tl.e Cuuiivmy luort- tluu, the Lo^isl.itnrf l,ad almuly givon. .„• to en.iMe the City 
 t(. ii..i)..,so a conditio,, on its.-if which shouul al.ridg,. its futuiv h.^nslativo action, 
 as to other onipani.s. Th.- wonls " upon such con.liti..n" in the proviso have a 
 well .leHned n.eanin-. They ^.ive the City power to i.np<.se restrictions on the 
 Company's exercise of the ri^rht. The City had the power to autlu.rize other 
 tramways as on., of its le;.islative p..wei-s. It could not have l.een inten.led to 
 give the City power to al-dicate merely its power on this sul.ject because the 
 Plaintirt-Con.pany ol.tained an Act (.f Incorporation. Tlio contention of the 
 PiaintiHs is that the wor.ls of this proviso were intended to enal.le the City 
 to contract away the riyht to authorixe other tramways, a power expre.s.sly con- 
 ferred on the City as a statutory corporation for pul.Jic purposes. 
 
 19. A.sHunui.g that tliere w.vs any douht as to tiie meaning of the.se statutory 
 provi.sion.s, when considered with the powers given the City l.y its Charter of 
 Incorporation, it is sul.mitted that the rule usually applied to Acts of in- 
 corporation of Con.pani..8 such .is this, must l.e applied to resolve such .louljt in 
 '•avor of the pul.lic. This Statute w.us pa-ssed on the petition of the promoters 
 of the Flaintifl- Company, an.l should he consi.lered as a contract in which the 
 words are thos,- of the promoters, and any doul.t or amLiguity will operate 
 against the Company. 
 
 20. It is sul.n.itted t.. l.e the rule applied to Munieip.d Corporations, when 
 dealing with n.atte.-s affecting pul.lic right, and especially highways, to conHne 
 them strictly to the powers assigned, and implications l.y which powers are 
 claimed t<. exist whirl, are not expres,sly given, are not tavored. and not 
 ftdmitted unle.ss unavoi.IaMe. It was contended, ..n behalf of the Plaintiffs, that 
 the powers of the (^ity t..give an exclusive license n.ust Ihj implied, .w otherwise 
 parti.'s could n..t have l.een got to invest capitid in the enterprise. Mr. Justice 
 Bain, in his Reasons (llecnl V), says, after considering the evidence: 
 
 " At tlu, iln.u It (iho roniracll wnMonl.r.Ml inio, WlnnlpoK w.ik „ „„„ ami KrowlnR town 
 
 "'"' " ""'"""' ' "'""" -■■••'«"•• »'"' " '- «''ll kno« „ Iha, ,u thai tin,, i, wan ..v|„.ol...l 11,., popu- 
 
 l«li»n wo„l,l in,,., M,. murl. n>„n, rapMly tl.aa it l.an Main S.,v,.| an.l IV.rlaK,. Avm.no aro 
 -irons „f „„„-,.| „;,,,,, |„„i„^ „ „„|f„„„ „.,,„., „n:i2f..c.l,an,ltl,« ollu.r Hlr««ls that have boon 
 refc.rro.l..o haven uMlh .,f ,;.i f,..,. M U.i, ,i„,..„one of.ho .Irc.tK ha.l boon pavcl. an.l I. In 
 Hhown tl.a. in .1>,. .prinK an.l falUn.l ,n wot weather tl.« .IronNor...,, l,«..un., al,n,..l lmp.iHHablo 
 foror.lna.-y v..l,l..IeH. Theno «ro a.-.,,,, ,ho only fa.Mn .ho«n that hear u,H,n the ..noHUon, and 
 while It „,„y h,. „.,„,,„ ,„,„,„„.,„ „„„,„.. ,,„^. ^,._,,_,^, ,^^, _^^ . _^_^ ^_^ ,.....,.„•...., .-allwaya 
 
 ntr.H u...«r ,h.,v fail .„ h„k..s, ,„ n.., any -n.h ..lu-i.-n a. that I, w„« necessary In onler .hat 
 
 Ihelilj miKhi .-..me »Kreo n. will, Ih,. Plaimltr. ,„ hulM an,l ..p..rale M, I rallwayn. It 
 
 Hl..„.l...,eah,..,„«ivethena N ..x..h„ivo riKh A.„l th..ru Is n.,.h.n .... H.n.w either. 
 
 .«l atthotUnothe .VK.-.....nent was nrndo. the CKy. „n „ ..„, „f ,„ ,„„b„,„. ,.,i„„„eetho 
 
 llaint.trs. orotlu.r.. to nmlor.ake the oon,.,r..cll,„. of sire... ralhv,.,.. Im,I ..(Hi.r l . kk,™ ,„ give 
 
 the IMalnlltrK a n,onoply or ,o .lo withon. ralhvays : an.l I eann... tln,l .ha. fn.m si.iera.lonH of 
 
 his H.,..,. or any other, 1, was ...eessary that the City sh.,ul,l have ,he power ,o Kive the exclusive 
 
 rlKlK in opilor that it miKht bo nblo lo carry Into ofBKit tho powers Rrantetl to It." 
 
 21. The courts W-low uphel.l the content!..!, of the Defen-lant Company 
 
i 
 
 that even ,f tho.v was p<,wer t. .nu.t oxclusivc rij^hts. no such grant was given 
 a« to those portions of the streets not actually physically occupied by the track, 
 an.l hne of the Plaintiffs' railway, an.l which n.ight he necess.vry for the running 
 of their cars an.l carriages. This finding was hased upon clause one of the By- 
 law and Contract, the wonls of that clause Inking expressed as follows :_ 
 
 It was contended on l.>ehalf of the PlaintiH- Company that the word "occupied" 
 there, was to he given a n.ore extended n.eaning than its ordinary n.eanin... and 
 was to refer to tin- wh.,le width of the street, and that it was not n.erely physi- 
 cal .>ccupation of u portion of the street that was intended. Mr. Justice 
 rf'un ,l.d not find it noce,s.sary to decide the point, i.ut the judges of the court 
 on appeal, agreed that physical .n^cupation only was intende.1. an.l that there 
 was no rea.son for .xten.ling the n.eaning of the won! "occupied" in that 
 clause .so a« to inelu.le the whole width of the street; and that if there was any 
 Hmh,g„,tyastothe n.eaning of the wonl it n.ust Ix. resolved a. against the 
 » Iau.t.fts u„.ler the rule usually applie.l to grants to such con.panies. The chief 
 Sroun..u,K>„ which the Plaintiff Con.pany conten.le.l that the wonl was to he 
 f,'.ven a w.ler n.eaning than „.e.-e physical occupatio... was that the .san.e won! 
 occurre.1 in clause 2.5 of the By-law. ..,..1 the Plaintiffs elai...e.l that in that clause 25 
 the wor.l had a wider n.eaning than that of n.ere physical .n^cupation. an.l that the 
 whole By-law and O.nt.-act shouM he .-ea-l together, and that the .same n.eaning 
 shoul.l he given to the w..nl th.-oughout the cont.-act. 
 
 22. The contention of the I)efen.la,.ts is that the.-e is nothh.g i„ the Contract 
 to .n,licate that it was inten.le.l that anything except the physical occupatio.. of 
 the portion .,f the st.-eet was ..etV..,-.,., t.. I,y the wor.I ••.«cupi..d " a...l that its 
 .aea..ingi„ chu.se 1 ..f the By-law ,nust I... the sa.ne ki,..l .>f ..eupat.on as 
 that which is.vfer.-ed t.. i.. clause !) .,f the Plah.tiffs Act of I,.co.,.orati.,n 
 ( "nd.u- which the By-law purports to he .In.wn ) where th., pn.,K,ses nn.l the 
 extent ot the ..ceupatio,. are deHnt^l as heing such parts of the street :- 
 
 t.e.„„.:K:;;:::":':::;::;;;::---^ 
 
 plainly referring to the actual extent of the street necewy for the carrying o,. 
 of the husiness of the Conipany. 
 
 23. The I)efe...la„tCo,npany clai,.,e.l l.y their a,..swer and at the hearing 
 toat .f the City Council l.a.l power to give a ...onoply. an.l if any s..ch mo„..ply 
 was actually given, that it w.ts a n...n..,..ly ..nly as to milways ope..ate.l l.y ,u.i..,a, 
 p..wer. and that a ..treet railway operated hy electricity was ..., h.vacl. of such 
 '" 'ncpoly. It is .,ue.stionabie in the Hrst phvce as to whether electricity wa. one 
 
 9 
 
en 
 
 y- 
 
% 
 
 of tho powers contfinplatcl l.y tlu; Act of Incorporation of tlio Plaintirts ,it the 
 time of its passing, us ,.l,,ctricity w.us not th.n known a.sa feasil.le motive jxjwer 
 lor street railways, or at the most was in an experinienbil st.i{,'e as sucli. (See 
 evidence of R,,cor.i p. ), an.l this contention .,f the Defen.knt Com- 
 pany involves tlu. point that the Council of the City of WinniiK-g, even if n.on- 
 oix.ly was inten.l...! to l.o ..-ante.!, .li.l not l.y the pas8in,ir "f the PlaintiHs' Hy-law 
 an.l th.. entering into the Agreement in .|uestion, inten.l to grant away tlu- 
 exchisive right to op,.rate street railways l.y all n.otive powers whether then 
 known to W. feasihl • otherwise. The City of Winnipeg in I «!)0, l.y resolu- 
 tion of its CV.uncil. authorize.1 the Plaintiffs to ..perate a iK.rti..n of their line in 
 the outskirts of the City, s,.uth of the Assinihoine Uivcr by electricity. That 
 lin. is alM.ut three and one-half n.iles in extent. But north of the Assiniln.ine 
 Hiv.r, in what is the main portion and p<.pulous and l.usine.ss part of the City 
 such permission ha.l always Ih.c. refused, and in the latter parts, heing i. e parts 
 whore the Defendant Company's lines were afterwanls I.uilt. the PlaintiHs have 
 ..ever had the ri^^iit to operate l.y any motive ,y,wer except anin.al ,Kmer The 
 position of the Defendant Con.pany with reference to this contention may he put 
 shortly, thus: The City of Winnipeg, if monopoly was intended to he granted 
 g.ive the Plaintiffs the exclusive right to operate street railways hy animal power 
 only an.l th... Defendant Co.npany uuxy he given the right t.. operate street railways 
 hy a,.y other power than aninml power, including electricity, and thus the City 
 would n..t he guilty of a Kreach of the Agreen.ent entered into with the Plaintiffs 
 Th.MV is no monop ,ly in street railways given, hut if at all, merely a monody 
 ...street railways operated l.y a certain kind of ,.,wer, nan.ely, anin.al power 
 Sn.ce the Courts helow wen. ahle to Hn.l in favor of the Defemlant Company 
 n|...n the.,ther twop..intsas to the power ..f the C.-poration. ami .« to the 
 Hct.nvl c.,..struction of the Contnict. there has heen no decision ujx.n this .lefence. 
 
 •24. If the Hy-law and Agreement he held to give the , xclusive right clain.ed 
 hy the PlaintiHs. then they will not he enforced hecau.se of their extreme un- 
 
 reasonahlenesH in the following respects: 
 
 (-0 The monopoly is to I.st forever. No n.atter how populous the City 
 htKion.es. n.. railway is ever to be permitted except that of the PlaintiHs', It i» 
 t.-ue that provision is n.ade for the ces.sation of the n.onopoly through purchase 
 of the railway ly th.. City, hut the provision is e.itirely worthle.ss for two 
 reasons :-— 
 
 (1) Because the City Um no power to purchase a railway ; and, (2) hecau.so 
 th.. price is to he Hxed l.y the "mu.imous award <.f three arbitrators and one of 
 fhem is to Ikj selected hy the I'laintiHs themselve.s. 
 
 '•'" ^'-i-'.-^t vahiclcsH. I he intervals arc to ho " not 
 
 10 
 
\ 
 
iMore than thirty .niniites." Th« speed is to bo "not more than six n.iles per 
 hour;" there is no inininmin. Tli.ie is to b« no forfeiture of privileges in 
 ewe of their non exereiHe (,r improper exercise, nor any penalty wliatevar. There 
 is to he no competition. Thne is no pn.vision .is to the cliarocter of the cam- 
 even that they are u> lie cIosimI and properly heated in winter time. One hundred 
 years from now the City Council cannot permit any other company to lay a line 
 upon any street in the City upon which the Flaintitts have no line, no matter 
 what service is offered and what amount can be got for the privilege if the 
 Plaintiffs are willing to build upon their present terms, once every half hour and 
 ten cents a trip. 
 
 25. Un.Ier clause 25 of the Plaintifls' By-law corresponding with clause 
 27 of the Agreement executed tmdor that By-law. the Flaintirts claim that 
 the City could not permit the Defendants to build lines of street railway 
 on the stix-ets on whicli the Plaintiffs had not built, until the Plaintiffs 
 had l.oen offeretl the option of constructing such propose.! railways, and had 
 not accepted same within two months. This argument affects the lines of 
 Defemlants built up<,n Central Avenue, i4th Street North, 10th Avenue North. 
 17th Avenue North and 24th Street North but .hx-s not affect the <,uestion of thJ 
 right of the Defendant Company to build on Main Street and Portage Avenue. 
 The Defen.huit Ci.mpany's intentions with reference to this clause were (1) that 
 it ilid not impo.se any restriction on the City in dealing with other 
 companies, and (2) was n>erely inten.le.l to provide for a way of getting rid of 
 any right of the Plaintiffs to build on tho.se streets, but tlid not imply that other 
 con.panies or persons shoul.l not have the right to build on those streets if the 
 Council chose to permit rival lines. (3) that the City Council had no power to 
 enter into such an agreement if the effect of same was to restrict the City from 
 exercising the powei-s which they luul under their Act of Incorporation and the 
 clau8i>s al>ove .,uote,l. of authorizing any line of street railway on the streets of 
 the City. The Plaintiffs' contention was that they slu.uld !« permitttnl to say 
 after two months, whether they would accept the privilege or not. and that until 
 after that tin.e the City Council luul Injund themselves not to legislate as to other 
 street railways on tho.se streets. If there was no power to grant exclusive rights 
 it seems certain that there was no {xmer in the Council to agree to .suspend its 
 legislative and sUitutory powers for two months or any other period for the 
 Plaintiffs" Unefit. Another objection which may Im urge,] .vgainst this clause, 
 having the .ffect contended for by the PlaintiHs is. that the By-law in this' 
 respect is unre.is„nable an<l unfair. The provision is that if any other parties 
 propose t,, c=.n-^truct strf-et railways on stret^ts not occupied by the Piaintiffx, 
 then such right must be given to the Plaintiffs if they ch(x>se to accept sumJ 
 
 11 
 
\ 
 
thus al)soliittly removing' from tlie City Council iiny discretion in the uiiiftfr, 
 and making' tlio ri^dit t<) Iniild duptMid upon uny pro|)osition wliieli may Ix- miulo 
 by any irn-sponNihlf party for constructing' street railways in the City. If the 
 chuise lias tii,' meaning; contended for hy tlie I'hiintitts, it pn)vides for an a^'ree- 
 ment that tlie Council will not during,' the perio< I of twenty years exercise any 
 discretion as to the clioice of persons or companies who are to lie permitted to 
 huild street railways, and the clause is invalid for partiality and discrimination 
 in favor of the FlaintiHs. 
 
 26. The I'laintiHs' alle^'ed agreement had never any validity, for it is not 
 hjused Ujwn the By-law. Tiie Hy-law provides that it 
 
 " Rhnll only oomi' Into form nflcr nii AKroemonl baitoil U|ion the cnndltinnx nnd proviNtonK 
 hvroln atliMilntuil Hhall Imvo boon entorud Into nnd cxui'iitod bolwoun thuHuldConipiiny and theiMld 
 t'orporution." 
 
 The agreement does not conform to the Hydaw in this, that the latter 
 grants permission and privilege to the I'laintiH" (.'(tmpany oidy, whereas hy the 
 agreement they are granted to the riaintlH" Company, "Iht-ir .virrcsnors or 
 iitmiijiit*." This is no miimportiiiit variation in an ngreemciit whieh was to run 
 forever, nor is it ever unimportant when the Company is one which is to render 
 service to the public. There was no evidence of ratification of this agreement 
 l»y the City. 
 
 27. Even if it were held that the Plaintitf Company has, liy contract with 
 the City, a grant of an e.xclusive right to use the streets for railway purposes, 
 yet there are several reiwons why nn injunction should not issue against the 
 Defendants : — 
 
 ((I) Becau.se the remedy could not Ite ntutual. The Cotirt has no power to 
 compel the Plaintitts to work the railway, and it is the settk.i practice of tho 
 Court to refuse specific performance of part of an agreement of which it cannot 
 compel performxnce of the rest. Even if the Court could compel the Plaintirt" 
 Company to work the railway it could not insure its satisfactory operation, and 
 at Ite.st only up to the very obsolete standard of the contract. Indictment for 
 negh'ct would not lie. 
 
 (/>) Because the Plaintirt" Company have no .suflicii^nt /(«•»« ntutuli, Ions of 
 profit is not sutHcient. Substiintial interference with their work is not pretended. 
 
 ((•) The givint<H' of an exclusive right cannot sur a stranger for infringement. 
 
 (d) The laches and «lelay of the Plaintirt's is a complett; l»ar. They were 
 aware of all the Defendants' preparations and intentions (See Mr. Austin's 
 evidence p. ), aa well as of the Defendants' Agr.oment with the City 
 
 Council and their charter of incorporati<>i> Nevertheless thev s.U»n\ h" and 
 allowed the contract to lie niaslc and the work to lie largely completed before 
 
 18 
 
ttijy step WHS tiiki'ii to assert their ri;,'l.l.-.. The By-h w provi.liuj; fnr the Defund- 
 ant's A^'ri'ciiu-nt with th.- City i.s <hiU-tl lat Fehi-uary, I8f)2. Work wiia com- 
 nieiiced on aist May, l,Sf>2. Thu first routu wjvs coinpletetl ami operation 
 upon it was conunenced 25th July, l,s()2. Work upon another route had 
 Iwen cniinnenced when on the 27tli July. l.S!>2 the hill was filed, At this time 
 ?20,000 had heen expended hy the Defendnnts in the construrtion of their 
 works. Xo application for interim injnnction was made until the 22nd 
 Septemher. l>Sf)2; nt wliich time tlie expenditure had increased to $00,000 
 When the application nt lenjrth did com.,- or to l.o heard, the I'hvintifi's ohtained 
 Its {Kjstponenient until the hearing' which took plac- Utii .\ovend)er, 1802 when 
 the expenditure ha.l ,im,,nnted to ?I.S0,OO(). It m-.y he that there is n«jt 
 here sufficient acpiiescenco to estop the PlaintiH" alto<,'ether, hut there is suffi- 
 cient to induce the court to withold fn.m them the extraf>rdiiiary remedy of 
 injunction. 
 
 The Respondents, The Wiimipe^' Khctric Street Uailway Company, suhmit 
 that the Judj,rment appealed from is correct and should he affirmeil for the 
 following, unKiiig other 
 
 REAS( )N.S : 
 
 1. Bi'causo the Mayor and Council of the City of Winnipeg had no power 
 under its Act of Incorporati.m or the Plaintitfs Act of Incorponition t<. grant a 
 monopoly or exclusive privileges to the Plaintitts, as such grant involved an agree- 
 ment tf) refrain from exercising their proper corporate powers of legislati(m with 
 reference to (.ther tramways, as the intt-rests of the City might re(|uire from 
 time to time. 
 
 2. IJecause no such e.xclusive privileges were gnintcl, < r ittended to be 
 granted, hy the terms of the By-Law 17« of the I'ity of W a.ijsj.. .- or the Agree- 
 ment with tilt! Plaintiris, except as to the parts of the streets .tonally occupied 
 by the Plaintiffs' lines, and necessary for the laying of their rails an<l the run- 
 ning of tlieir cars and carriages, and because the Plaintiffs' Agreement never was 
 in force. 
 
 3. Because the grant to the Defendant Company of power to operate lines 
 by electric power was no breach of any right of the Plaintiffs, they having by 
 the terms of their By-Law anil Contract, power to operate on the streets in 
 (|Ue»tion by animal power only, no other power having been authorized, in the 
 portion of the City where the Defendant Company's lines are, and even if there 
 was a monopoly as to tramways operated by nnimal power, the City still held 
 inigi-unted the powei to authorize eleetric tramways. 
 
 '^ cause as to the Defendant Comnanv's lines on streets on which the 
 
 ipany i 
 
 IS 
 

MICROCOPY RESOLUTION TEST CHART 
 
 iANSI and ISO TEST CHART No. 2) 
 
 _£ ^::^PPLJED_IM/qGE Ir 
 
 165 J East Main Strett 
 
 Rochester, New rork U609 uSA 
 
 (716) 482 - 0300 - Phone 
 
 (?16) 288 - 5989 - fa* 
 
PlaintiH's had no Hir's, tlierc was no power in the City, or its Council, to pass 
 Chiuse 25 of the Phiintiffs' iJy-Lfuv, or ojve the Phiintitts any preferential rights 
 n^ against other Conipunics, sucli Iteing a;i unautliorized restriction of the cor- 
 porate powers of tlie City, and an interference with its legishitive discretion as to 
 granting simihir powers to other Companies or pe)'S(jns. 
 
 5. Because clause 25 of the I'iaintitfs' By-law did not give the Plaintiffs 
 more power as to laiilding lines on any street than Clause 1 of their By-law, 
 the latter ha\ing given them ample power to Iiuild and opiTatr lines on al, 
 streets, a privilege tiny had not availed themselves of as to the streets in 
 (|Uestion, and no new option was necessary. 
 
 (). Because the Defendant ' 'onipany were expressly authorized hy By-law 
 54.S and the coi.tract tliereundei- and their Act of Incorporation to construct 
 and ojici-ate th.e ti'amway lines in ([Ucstion. 
 
 7. Because the PlaiiitiHs' had lost their allegeij right to injunetion by reason 
 of their delay, ami Lvclies in coiinnencing and prosL'Cuting their suit, in the 
 meantime allowing large expenditures to he made hy Defendt'ut Company in the 
 construction of their lines. 
 
 S. Beeausi' in any ease the alleged rights of the Plaintitis are not such as 
 can he enforced hy injunction. 
 
 i). .\nd for the ivasons mentioned in the reasonsof the four Judges appealed 
 from. 
 
 I 
 
 U