IMAGE EVALUATION TEST TARGET (MT-3) M/. O ^ tjy m// / V ^ y. ,0 ^ ///// f/. 1.0 I.I 20 !l* fi 1.25 1.4 .6 .« 6" — »> V] o V^ o /. /^ ^ / .^ Ph()t()j4i^i[)hic Sciences Coqxrdtion 73 WIST MAIN STlHII WIMSTIRNV t4lM (7U) I'S^SOS iV <^ k '*. ^-V. ^S ^>^ V * * • f CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. 1^ o v Canadian InttUutt for Hittorical MiorortprodMCtiont Inatitut Canadian da microraproductiona hiatoriquai 1980 Technical and Bibliographic Notes/Notes techniques et bibliographiques The to th The Institute has attempted to obtain the best original copy available for filming Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. m n □ Coloured covers/ Couverture de couleur I I Covers damaged/ Couverture endommagde □ Covers restored and/or laminated/ Couverture restaurde et/ou pellicul^e n Cover title missing/ Le titre de couverture manque □ Coloured maps/ Cartes g^ographiques en couleur Coloured ink (i.e. other than blue or black)/ ere de couleur (i.e. autre que bleue ou noire) I I Coloured plates and/or illustrations/ D Planches et/ou illustrations en couleur Bound with other material/ Reli^ avec d'autres documents Tight binding may cause shadows or distortion along interior margin/ La reliure serr^e peut causer de I'ombre ou de la distortion le long de la marge intirieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certnines pages blanches ajoutAes lors dune restauration apparaissent dans le texte. mais, lorsque cela Atait possible, ces pages n'ont pas M6 film^es. Additional comments:/ Commentaires supplAmentaires' L'Institut a microfilm^ le meilleur exemplaire qu'il lui a 6t6 possible de se procurer. Les details de cet exemplaire qui sont peut-dtre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modification dans la m^thode normale de filmage sont indiqu^s ci-dessous. □ Coloured pages/ F ages de couleur □ Pages damaged/ Pages endommagdes I I Pages restored and/or laminated/ D D Pages restaur^es et/ou pellicul^es Pages discoloured, stained or foxei Pages d^color^es, tachetdes ou piqu6es Pages detached/ Pages d6tachdes Showthrough> Transparence uali:y of prir ualit^ in^gale de I'impression icludes supplementary materii Comprend du materiel supplementaire I I Pages discoloured, stained or foxed/ I I Pages detached/ I I Showthrough/ □ Qualiry of print varies/ Q I I Includes supplementary material/ The poss of t^ filmi Orig begi the I sion othe first sion, or ill The shall TINl whic Map diffe entir begii right requ met^ Only edition available/ Seule Edition disponible Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata, une pelure, etc., ont 4tA film6es A nouveau de fa^on d obtenir la meilleure image possible. This item is filmod at the reduction ratio checked below/ Ce document est film* au taux de reduction indiqu* ci detsous. 10X 14X 18X 22X 26X 90X 12X 16X ZOX 24X 28X 32X ils u lifier ne age The copy filmed here has been reproduced thanks to the generosity of: Douglas Library Queen's University The images appearing here are the best quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or Illustrated impres- sion, and ending on the last page with a printed or illustrated impression. L'exemplaire film6 fut reproduit grdce d la g6n6ro8it6 de: Douglas Library Queen's University Les images suivantes ont 6t6 reproduites avec le plus grand soin, compte tenu de la condition et de la nettetd de l'exemplaire film6, et en conformity avec les conditions du contrat de filmage. Les exemplaires originaux dont la couverture en papier est imprim^e sont film^s en commen^ant par le premier plat et en terminaiit soit par la derniAre page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, selon le cas. Tous les autres exemplaires originaux sont filmds en commenpant par la premiere page qui comporte une empreinte d'impression ou d'illustration et en terminant par la derniire page qui comporte une telle empreinte. The last recorded frame on each microfiche shall contain the symbol ■^*- (meaning "CON- TINUED "), or the symbol V (meaning "END "), whichever applies. Un des symboles suivants apparaitra sur la derniire image de chaque microfiche, selon le cas: le symbole — ^ signifie "A SUIVRE ", le symbole V signifie "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planohes, tableaux, etc., peuvent dtre filmds d des taux de reduction diff^rents. Lorsque le document est trop grand pour dtre reproduit en un seul cliche, il est film^ d partir de Tangle sup6rleur gauche, de gauche d droite. et de haut en bas, en prenant le nombre d'images nicessaire. Les diagrammes suivants illustrent la m^thode. ita lure. : IX 1 2 3 1 2 3 4 5 6 EXTRACTS FROM DOCUMENTS, AND ALSO— LETTERS AND EVIDENCE. RELATIN(i TO THK RIGHTS OF THE GRAND TRUNK RAILWAY COMPANY OK CANADA, HhTWEEN QUEEN STREET AND I HE EAST END OF THE ESI'l.ANADE, IN THE CITY OF TORONTO. illK EXTRACTS ARK lAKKN KKOM rHK DEKDS IN THE ORDER OK IHEIR DAl'ES. MELLEVILLE: fHINTiCb AT TilK INTICI.I.IUKNCKR OKPtCK, HKLLKVILI.k., UMARIO. 1880. I i EXTRACTS FROM DOCUxMENTS, —AND ALSO— I LETTERS AND EVIDENCE, RELATING TO THE RIGHT OF THE GRAND TRUNK RAILWAY COMPANY OF CANADA, h I3ETWEEN QUEEN STREET AND THE EAST END OF THE ESPLANADE, IN THE CITY OF TORONTO. > mmm < THE EXTRACTS ARE TAKEN FROM THE DEEDS IN THE ORDER OF THEIR DATES. m BELLEVILLE : f'RINTED AT THE lNTlM.li;KNt KR OKKU E, HELLEVII.LK, ONTAIllO. 1880. L AGREEMENT BETWEEN THE CITY OF TORONTO AND THE GRAND TRUNK RAILWAY COMPANY OF CANADA. Dated, 2IST January, 1856. THIS agreement, made the 2 ist day of January, in the year of our Lord 1856, between the Mayor, Aldermen and Common- ahy of the City of Toronto, of the first part, and the Grand Trunk Raihvay Company of Canada, of the second part. WHEREAS, by certain articles of agreement, bearing date the 4th day of January, in the year of our Lord one thousand eight hundred and fifty-four, the party hereto of the first part contracted with Casimir S. Gzowski, I). L. Macpherson, L. H. Holton, and A. T. (ialt, for the construction of an Esplanade along the front of the City of Toronto, upon the terms and con- ditions in the said articles of agreement mentioned ; and whereas the said C. S. Gzowski, I). L. Macpherson, L. H. Holton, and A. T. Gait, commenced operations under the said contract, and have l)erformed part of the work therein contracted to be performed, and have certain claims and demands against the said party hereto of the first part, under the said contract : AN I) whereas the said party hereto of the first part has declared the said contract at an end ; and whereas the said party hereto of the second part have agreed to assume the settlement of all claims and demands by the said Casimir S. Crzowski, I). L. Macpherson, L. H. Holton, and Alexander T. Gait, against the said party hereto of the first part, and to relieve and indemnify the said party hereto of the first part from all the said claims and de- mands : 1 1971) 1 4 And whereas, under the provisions of an act of the Legislature of this Province, entitled "An Act to authorize the Grand Trunk Railway Company of Canada to change the location of their line in and near the City of Toronto," the said party hereto of the first part are authorized and empowered to contract with the party hereto of the second part for the construction of the said Esplan- ade, or of any portion thereof And whereas the said party hereto of the first part are desirous of contracting with the said [)arty here- to of the second part, for the construction of the works hereinafter mentioned. Now these presents witness, that the party hereto of the first part, for themselves and their successors, and the party hereto of the second part, for themselves and their successors, mutually covenant, promise and agree, the one to and with the other, as follows : — First. — The party of the second part agree to assume the settle- ment of all claims existing between C. S. Gzowski, D. L. Mc- Pherson, L. H. Holton, and A. T. Gait, and the party hereto of the first part, and to indemnify and relieve the said party of the first part of and from the same. Second. — The parties hereto agree forthwith to submit the said claims, as matters in dispute between them, to the award, final end and determination of A. AI. Ross and T. C Keefer, Esqrs.,and of a third arbitrator, to be chosen by the persons so named before proceeding with the said arbitration, and tlie parties hereto mutually covenant the one with the other, for themselves and their successors, that they will well and truly stand to, abide by, perform, fulfil and keep any award which may be made by the arbitrators so named and chosen or by a majority of them. Provided that such award be made in writing, ready to be de- livered to the said parties, on or before the first day of March next, the said arbitrators, or a majority of them, to have the power to enlarge the time for making their award by writing, under their hand, and to examine all persons and witnesses upon oath. Provided always, and it is hereby agreed, that the said party of the first part shall be at liberty, before the .said arbitra- tors, to dispute the (juantity and prices of work, and materials charged for, by the said C. S. Gzowski, I). L. Macpherson, L. H. Holton, and A. T. Gait, and each and every claim made by them in like manner, as if such arbitration had been made be- tween the said C. S. Gzowski and his said partners and the party of the first part. # « « « Fourth. — The party of the second part covenant as aforesaid forthwith to proceed with the construction of a Railway Track or I i e by icm. )e de- arch the ting, upon said ilra- erials H. by be- party esaid ck or Way forty feet in width, with all necessary slopes in cuttings, in the proportion of one-and-a-half horizontal to one perpendicular, along the front of the City of Toronto, on the line and in the di- rection marked, on the plan hereto attached, and which shall be taken to be part of the contract. Fifth. — The party of the first part covenant as aforesaid, that in consideration of the sum of ^10,000 of lawful money oi Can- ada, to be paid to the party of the first part by the party of the second part they shall and will guarantee the exclusive right of way for the said forty feet track, along the said line, from Brock Street to Parliament Street, as shewn on the said plan, to the said party of the second part and their assigns, and shall and will indemnify and save harmless the party of the second part and their success- ors, of, from, and against all claims and demands whatsoever, of or by all person or persons whomsoever, for or by reason of the construction of the said forty feet tract, and the said slopes, and shall and will pay and discharge all claims for land, damages, and all costs and expenses of any arbitrament or other legal proceed- ings which may be necessary, or may be incurred in consequence of the construction of the said tract of forty feet and slopes. It being expressly declared and agreed between the parties hereto, that the party of the second part shall not for or by reason of the construction of the said Railway Track and Slope, be subjected to the payment of a larger sum than ^^ 10,000, for any cause what- soever. # ♦ * # Seventh. — The said Railway Track of forty feet in width, with the said slopes, to be constructed by the party of the second part, m such manner as may be considered necessary by the Engineer appointed by them to superintend the construction of the same. Provided always, that no alteration in the line so marked on the plan hereto annexed shall be made without the consent of the party of the first part, and that the proportion of one-and-a-half to one be observed. Eighth. — The party of the second part covenant as aforesaid, that in the construction of the said Railway Track they shall not and wilinot obstruct the escape of the present public Sewerage of the City. « # # « I And the party hereto mutually covenant the one with the other for themselves and their successors, that they will well and truly stand to, abide by, perform, fulfil and keep any award which may be made by the arbitrators so named and chosen, or by a major- ity of them, or by such arbitrators as may be hereafter named and chosen, as hereinafter provided, so that their award may be made c in writing, under the hands of the said arbitrators or of a majority of them. # ♦ # # Fourteenth. — The party of the second part further covenant as aforesaid, that they shall and will well and truly pay to the said party of the first part the said sum of ;^i 0,000, upon the said party of the first part assuring to the said party of the second part and their assigns the exclusive right of way over, upon, and along the said railway track of 40 feet. Seventeenth. — And whereas, doubts have been entertained as to the liability of the party of the second part, tcf make and erect bridges and crossings over and upon the said tracks for and by reason of the occupying and using the same by the party of the second part as a Railroad Track. It is hereby expressly declared and agreed, that the party of the first part shall not reijuire the said party of the second part, to build, find, or procure any Bridges, Ramps, Crossings, or any other approaches whatever, over, along, or to the said Railway Track ; but shall provide all such, if and whenever required, at their own e.xpense; it being the intention of the parties to these presents, that the party of the first part, for and in consideration of the said sum of ;;^ 10,000, so to be paid as aforesaid, do guarantee and indemnify the party of the second part of, from, and against all claims and demands whatever, for or by reason of the Railway of the party of the sec- ond part being placed on said track of 40 feet. Eighteenth. — The party of the second part do further agree, that they shall and will assist the party of the first part, in so far as may be necessary in contracting for, or constructing the Esplan- ade along the front of the City of Toronto, under the second sec- tion of the Act passed in the i8th year of Her Majesty's reign, Chap. 175 ; and fixing upon and determining the plan and site of the said Esplanade, and in taking any other benefit under the said act for the purpose of conferring upon the party of the first part the powers mentioned in the said act concerning the said Esplanade, if the party of the first part shall deem it advisable to require such assistance ; the party of the first part agreeing to pay all costs and expenses thereby incurred. And the party of the first part agree that they shall not let to contract nor construct the Esplanade^ or general earth-filling until after the party of the second part shall have comjileted the said Railway Track and Slopes. Provided always that the i)arty of the second i)art shall use all reasonable expedition to finish the said Railway Track during the present year. It is also mutually agreed that the party of the first part shall not interfere unreasonably with the party of I gree, far as splan- d sec- reign, ite of the first said )le to pay the struct fthe and shall Track party •tv of )f the second part, nor shall the party of the second part interfere unreasonably with the party of the first part, either in the forma- tion of the Railway Track, or after the construction and occupa- tion of the said Track by the said party of the second part, or in the construction of the said Esplanade; but each shall and will afford all proper facilities to the other. And whereas the track of the Ontario, Simcoe and Huron Rail- road Company passes upon that part of Front Street aforesaid, which will be required for the slope in the construction of the said track of the party of the second part, and it is necessary that some provision should be made in reference thereto : Now these presents witness, that it is mutually agreed between the said parties of the first and second parts, that if the said party of the first part shall at any time within one calendar month from the execution of these presents desire to make any deviation from the location of said track of the party of the second part, as laid down upon the said plan, so as to prevent interference with the said track of the Ontario, Simcoe and Huron Railroad Com- pany, then that the said party of the second part, on notice there- of within the period aforesaid, shall proceed to execute their said track upon that part thereof lying between Brock and Bay Streets, on surh part of the frontage of the said city as shall not be further south than twenty six feet from the southern line of the said forty feet, as laid down on the said plan ; and all the coven- ants, agreements, and provisions herein contained and applicable to the said forty feet track, as laid down on the said plan, shall be applicable to the said substituted track as fully and effectually to all intents and purposes as if such substituted track had been the track originally laid out on the said plan, and had been specially referred to in all the provisions of these presents. AS witness the hands and seals of the said parties, the day and year first above written. [L.S.] (Signed) G. W. ALT.AN, Mayor. (Signed) JOHN ROSS, President Grand Trunk Railway Company of Canada. (Signed) A. T. McCORD, Chamberlain. Signed, sealed and delivered in presence of (Signed) C. GAMBLE. (Signed) W. SHANLY. 8 Sir,— Toronto, 21st January, 1856. At your recjuest I hereby consent aud agree that the track of the Northern Railway, along the south side of Front Street, between Bay and Brock Streets, shall continue to be left where it is until the 15th day of June now next ensuing; and further, that we will construct our forty feet track for the City, and accept it under an agreement with the City (if notice be given by the Cor- poration within one month from this date desiring us so to do), along the outside I'ne of the proposed Esplanade, as shown and pointed ov\ by Mr. Shanly in pencil, on the plan which we have signed ; and further, where the said forty feet track touches the old line of Esplanade, the line to be carried along ihe south side thereof, subject to all the conditions, covenants and provisoes contained in the agreement this day executed between the City and ourselves, if the City desire such change within one month from date. (Signed) JOHN ROSS, Pres. G. T. R. Company. To G. W. Allan, Esq., Mayor of Toronto. P. S. — The covenant in our agreement with respect to the patent for the property embraced in the license of occupation of 29th March, 1853, I shall endeavor to get carried out as speedily as possible Mr. Wilson requested Mr Attorney-General Macdonald, in my presence, to get it ready as speedily as possible, and I have no doubt that this is being done according to the terms read ovef by you in presence of Mr. Macdonald and Mr. Cayley, when we met to agree upon the terms embraced in our present contract. (Signed) JOHN ROSS. Council Chamber, Toronto, Feb. nth, 1856. Resolved. — That the Solicitor of the Corporation be instructed to give notice to the Grand Trunk P^ailway Company of Canada, pursuant to the agreement of the 21st January last, that they are required to remove the'r forty feet track from the foot of the slope, so much farther south as will prevent interference with the track of the Ontario, Simcoe and Huron Railroad Company. Communicated by the L^ity Solicitor to The Hon. John Ross, President G. T. R. Co. of Canada. February 19th, 1856. 9 Copy of Report of Standing Committee on Wharves, Harbors, &c. thlct^TZ"^''''!''^'^^^''^'''' ^^^"^"^^" ^"'^ Commonalty of the City of Toronto, m Common Council assembled. The Standing Committee on WSarves and Harbors beg leave to brmg up the first report. ^ and the Cr^^^'r '''!^^ ^'"b'trators appointed between the City and the Grand Trunk Company, under the contract entered into between them, under the date of the 21st January last, have been as yet unable to meet to enter upon such arbitrat on And whereas ,t may be doubtful whether the time for such arbitration may not expire before any meeting of such arbitrators. The Committee hereby recommend to the Council to adopt a resolution, agreeing to enlarge the time for making any award to fronTthe date!' '"'^ "°"^'"^'^'' ^°^ '^'^ P^"od of two months All of which is respectfully sub aitted, (Signed) GEORGE A. PHILLPOTTS, Chairman. Adopted in Council 2rst February, 1856, and communicated same day by the Clerk of the Council to the Hon. John Ross. President of the Grand Trunk Railway Company 10 Award. Dated April 21st, 1856. TO all to whom these presents shall come. We, Alexander McKenzie Ross, of the City of Montreal, Esquire, and James Cobby Street, E5i.quire, send greeting. WHEREAS by a certain agreement bearing date the twenty- first day of January, in the year of our Lord one thousand eight hundred and fifty-six, between the Mayor, Aldermen, and Com- monalty of the City of Toronto, of the first part, and the Crand Trunk Railway Company of Canada, of the second part, it was among other things witnessed that the said parties thereto did mutually covenant, promise and agree the one to and with the other that they the party of the second part would forthwith pro- ceed with the construction of a Railway Track or way forty feet in width, with all necessary slopes in cuttings in the proportion of one and a half horizontal to one perpendicular along the tront of the City of Toronto, on the line and in the direction marked on the plan attached to said agreement, which it was agreed should be part of the said agreement, AND whereas by the said agreement the parties thereto did agree to submit certain matters in dispute between them to the award, final end, and determination, of Alexander McKenzie Ross and Thomas C. Keefer, Esquires, and of a third arbitrator to be chosen by the persons so named before proceeding with the said arbitration, the said parties thereto of the first part did covenant and agree that they should and would pay to the party of the second part for the construction of the said Railway Track and slopes as follows : The prices and quantities of all works and materials to , ) fixed by the arbitrators thereinbefore named, within one month from the date of the said agreement, meaning thereby of the said Alexander McKenzie Ross and Thomas C. Keefer. and of the said arbitrator to be chosen by the persons so named before proceeding with the said Arbitration. AND the said parties did mutually covenant one with the other for themselves and their successors, that they would well and truly stand to, abidj by, perform, fulfil, and keep any award which might be made by the arbitrators so named and chosen or by a majority of them, or by such arbitrators as might be there- after named and chosen as in the said articles of agreement is to mak materi; 11 o did to the Cenzie itrator with did rty of rack and lined, ining as C. )ns so the well award ■son or therc- •nt is provided, so that the award be made in \\Titing under the hands of the said arbitrators or a majority of them. AND whereas before proceeding with the said award, the said Alexander McKenzie Ross and Thomas C. Keefer chose the said James Cobby Street as the third arbitrator. AND whereas the said, the Mayor, Aldermen and Commonalty of the City of Toronto, and the said the Grand Trunk Railway Company of Canada under their respective corporate seals duly enlarged the time limited in the said agreement for the arbitrators to make their award of the prices and quantities of all works and materials until the 21st day of April instant. NOW know ye that we the said Alexander McKenzie" Ross and James Cobby Street being a majority of the said arbitrators having taken upon ourselves the burthen of the said reference and having weighed and considered the matters and things thereby referred to us, do award and find : THAT in the said Railway Track of forty feet wide the neces- sary slopes on the line in front of the City of Toronto, according to the plan attached to the said agreement, there will be required the quantity of two hundred and forty-six thousand cubic yards of earth-work measured in excavation. There will be required for passages for escape of the sewerage of the City through the said Railway Track, thirty thousand cubic feet of timber, and a brick drain near the Parliament Buildings, will in our oi)inionalso be recjuired, and as in our opinion other brick culverts will be necessary for conveying the drainage of the City across the Rail- way, wo do award that the sum of one pound and fifteen shillings per cubic yard shall be i)aid for the brick work in the same, in- cluding the necessary excavations, and we do award and find that the sum of two shillings currency per cubic yard measured in excavation I paid for all earthwork lying to the westward of the cast side of Beard's Wharf, as shewn on the said i)lan, which we estimate at one hundred and sixty thousand cubic yards, and that the sum of two shillings and three pence currency per cubic yard be paid for all earthwork lying to the eastward of Beard's Wharf, as shewn on said plan, which we estimate at oighty-six thousand cubic yards. • AND wc do award that the sum of one shilling and six pence per cubic foot be paid for the timber retjuired for the passages for escape of the sewerage of the City through the said Railway track. AND wo do award that the sum of one hundred pounds be I)aid fur the said brick drain near the I'arliament ISuildings, 12 AND we assess our charges as arbitrators for preparing this our award at the sum of one hundred and five pounds, which we direct to be divided equally between the said the Mayor, Aldermen and Commonalty of the City of Toronto, and the said the Grand Trunk Railway Company. IN WITNESS whereof we have hereunto set our hands this 2ist day of April, 1856. Signed, published and ) delivered in presence of | WILLIAM KINGSFORD. ALEXANDER M. ROSS, JAMES C. STREET. 13 Agreement between the City of Toronto and the Grand Trunk Railway Company of Canada. Dated August 30th, 1856. THIS indenture made the thirtieth day of August, in the year of our Lord one thousand eight hundred and fifty-six, between the Mayor, Aldermen and Commonalty of the City of Toronto, of the first part, and the Grand Trunk Railway Company of Canada, of the second part. WHEREAS by certain articles of agreement bearing date the twenty-first day of January, in the year of our Lord one thousand eight hundred and fifty-six, and made between the said parties hereto of the first and second parts, after reciting a certain con- tract made between the said jjarties hereto of the first ])art, and certain parties doing business together under the firm of " C. S. Gzowski ti Co.," for the construction of an Esplanade in front of the City of Toronto, according to a certain plan or specification to the said contract annexed, and that the said parties hereto of the first part, had declared such contract at an end, it was agreed among other things that the claims of the said C. S. Gzowski & Co. should be treated as claims by and on behalf of the said parties hereto of the second j)art, and shall be referred to arbi- tration as in the said agreement is mentioned and set forth. AND whereas the arbitrators therein mentioned made their award of and concerning the matters thereby referred to them, which award is to be and remain in full force and virtue, not- withstanding the execution of these presents. AND whereas in a certain other jwrtion of the said agreement, it was provided that the said parties hereto of the second part should construct a Railway Track or way forty feet in width along the front of the said City of Toronto, according to a plan and specification thereto annexed, and upon certain terms therein set forth, and that the said parties hereto of the first part for the consideration therein mentioned should guarantee to the said parties of the second part the exclusive right of way for the said forty feet track according to the line upon the said last mentioned plan laid down. ■ 14 AND whereas since the execution of the said last mentioned agreement, it has been discovered that an error was made in locating the said Railway Track of forty feet, and that the said parties of the li ^t part had not the power to authorize any such location of the said forty feet track, and it has been agreed be- tween them to cancel the said agreement of the twenty-first of January, one thousand eight hundred and fifty-six, so far as relates to the construction of the said forty feet track and the guarantee of the right of way thereon, and to substitute these presents therefor, NOW this Indenture witnesseth that the said parties of the second part do hereby for themselves and their successors, coven- ant, promise and agree to and with the said parties of the first part, their successors and assigns, in ni inner following, that is to say : — « » « « Sixth. That they the said parties of the second part, shall and will well and truly pay or cause to be paid to the said parties of the first part the sum of ten thousand pounds of lawful money aforesaid for a right of way of forty feet in width over, upon, and along the southern or front line of the said Esplanade as laid down on the said plan, and which said track shall be used ex- clusively for Railway purposes, and which said sum shall be paid to the said parties of the first i)art upon the completion of the said Esplanade according to the terms of this contract and the guaranty of the said right of way to the said parties of the second part. Provided always, that before the said work or any part thereof shall be commenced or proceeded with, a schedule of prices by which the monthly estimates hereinafter mentioned shall be governed shall be agreed upon between the Engineers of the i)arties hereto of the first and second parts, which said schedule s!iall be based upon the (puintities of work to be performed, and the said price or sum of seventy thousand pounds it being expressly agreed and understood that such schedule and estimates thereon based are only for the jiurpjse of guiding the Engineer in forming the monthly estimates and are not to be held or taken in any respect to alter or vary the contract. Seventh. And the said parties of the first part do hereby coven- ant, promise and agree to and with the said parties of the second part, that they the said parties of the first part shall and will upon the execution of these presents forthwith give possession of the land upon which the said Esplanade is to be built, accord- ing to the said i)lan, to the said parties of the second part, and upon payment of the said sum of ten thousand pounds as afore- said, they the said i>arties of the first part shall and will guaranty 15 to the said parties of the second part the exclusive right of way of the same width from Brocl: Street westward over, upon and across the Station ground of the Ontario, Simcse and Huron Railroad Union Company to the Queen's Wharf, on the line laid down on the plan hereto annexed free of charge to the said parties of the second part, except the expense of preparing the same for a Railway Track, which is to be at the expense, cost and charges of the said party of the second part, and also that they the said parties of the first part shall and will hold harmless and indem- nified the said parties of the second part of, from and against all claims and demandr whatsoever of all persons whomsoever for or by reason or arising out of the construction of the said Esplanade, or of the works hereby contracted to be performed under this agreement. It being expressly declared and agreed by and between the parties hereto, that the said parties of the second part shall not for any reason whatsoever be subjected to the pay- ment of a larger sum than ten thousand pounds, for or on account of the said right of way along the line of the said Esplanade. ^meers . said to be pounds lie and iL^ the to be coven - second id will AND lastly for the performance of all the covenants and undertakings herein contained on the part of the said parties of the second part, they, the said i)arties of the second pait bind themselves and their successors to the said parties of the first part and their successors in the sum or penalty of one hundred thousand [pounds of lawful money aforesaid, and for the perform- ance of all the covenants and agreements herein contained on the part of the said parties of the first part, they, the said parties of the first part bind themselves and their successors to the said parties of the second part, and their successors in the sum or penalty of one hundred thousand pounds of lawful money afore- said. IN witness whereof the said parties have hereunto set their corporate seals, the day and year first above written. Signed, sealed and do- ) livercd in presence of j C. GAMBLE, W. SHANLY. JOHN BEVERLEY ROBINSON, Mayor of the City of Toronto. JOHN ROSS, President Ci. T. R. Co. of Canada. 16 The City of Toronto never constructed the Esplanade west of Brock Street nor through the grounds occupied by the North- ern Raihvay ; and, as the section of the Grand Trunk hne west, of Toronto terminated at the Queen's Wharf — which is west of the Northern grounds — the Grand Trunk had no connection be- tween their line east of Brock Street and west of Queen's Wharf. Various temporary arrangements were made by which the passenger trains of the Grand Trunk from the West, in the first place, came down Front Street, the trains from the East stopping at the Don. Afterwards arrangements were made by which passen- ger trains from the East and West came to the temporary station at York Street, but the freight business of the Grand Trunk was done at the Queen's Wharf and the Don. This was found by all concerned to be expensive and in- efficient, and, as the City did not wish to go on with the work west of Brock Street, and the Northern Railway Company ob- jected to the Grand Trunk going through their freight sheds and grounds, and the Government of the day, in the public interest, desired to have the question of the railway service passing into and through the Corporation of the City of Toronto, settled on a permanent footing, they, at the instance of the City of Toronto, the Northern Railway, the (irand Trunk and the Great Western Railway Companies, caused conferences to be held, and reports were made, which, in the end, led to the following arrange- ment : — The Grand Trunk did not insist on the City giving them the right of way from Brock Street west, as agreed in the deed of August, 1856. The Northern witlulrew from the claims then made by them to tlie piece of ground between Brock Street and Bathurst, or a point near, but east of that street, and north of the present fence of the Northern Railway, between the points named above. It was agreed that the bank should be cut down and that the lines of the Grand Trunk and Great Western should pass in that way into the City, the ground to be divided as it now is amongst the Companies. The Northern paid one i)art of the cost of this and the balance was divided and paid by the Grand Trunk and Great Western in the same proportions as the land was divided, viz : — two parts by the Grand Trunk and one part ])y the (3reat Western. As this did not connect the eastern and western divisions of the Grand Trunk, and it was desirable to avoid the complaints of the Northern Railway, and to meet the wishes of the City, which then regarded that company with especial favour, it was further 17 ide west e North- ine west, west of ;tion be- s Wharf. hich the the first stopping h passen- •y station runk was and in- he work pany ob- heds and interest, jing into tied on a Toronto, Western 1 reports arrange- ng them deed of )y them rst, or a nt fence ve. and that pass in now is t of the e (Irand land was part by isions of )laints of ty, which IS further arranged that the Grand Trunk track should be extended westward to Queen Street, over the hundred feet then enclosed by the North- ern, and the Northern gave up to the Grand Trunk the south fifty feet and kept the north fifty for their purposes. This was brought about in 1861 or early in 1862, and as has been stated at the urgent instance of the Government of the day, the City of Toronto and the Northern Railway Company. Also it may be added at an exceedingly large outlay to the Grand Trunk in excess of what they had paid to the City for the right of way to Queen's Wharf These matters being so arranged the Grand Trunk Railway Company on the 3rd of December, 1862, bought from the City of Toronto the Walks and C^ardens property in Toronto, " situate " south of Front Street, west of the Rees property, next Simcoe " Street, east of Peter Street, and north of the general line of the " Water Loi:s," in front of the City, containing about six acres, for $16,500, and subsequently the City conveyed the lands to the Company in fee. On the 23rd of December, 1862, the Grand Trunk Railway Company entered into an agreement with the City, which is as follows : — Agreement for Sale, Dated December 23rd, 1862. THIS AGREEMENT made this twenty-third day of De- cember in the year of our Lord one thousand eight hun red and sixty-two. By AN n Between The Grand Trunk Railway Com- pany of Canada of the first part, and the Corporation of the City of Toronto of the second part. WHEREAS the party of the first part have purchased, and the party of the second part has sold to them the lands and tene- ments in the said City situate between the property known as Dr. Rees', immediately adjoining Simcoe Street on the east, F'ront Street on the north, Peter Street on the west, and the northerly general boundary or line of the Water Lots as laid down on the original survey by the Crown on the south. AND whereas the party of the first part arc now in possession of and liave the right of way forty feet in width on the Esphrnadc and that north of said forty feet there is a space sixty feet wide called Esplanade Street ; AND whereas north of said forty feet and sixty feet (in all one hundred feet) there is a piece of land extending from the north line of said one hundred feet in a direction northerly to the said boundary or general line, north of the \vn as Dr. ith by the up of the y the said I north by ivn on the .ots as the hat is what t be agreed I engineer, of the said ng on the is, should the par- at they do imount as- lilling the the said terms and ) immedi- il deed of larges the boundaries that on the Com- ned as the mentioned n the said from the d by this agreement, such mortgage to be conditioned that so long as the Company pay to the party of the second part the interest on the said principal money at the rate of six per cent, per annum half- yearly from the date of the mortgage they the Company shall have the right to retain in their own hands the said principal money, but that if the payment of the in,terest shall be at any time one calendar month in default the City may proceed for the said principal if they think proper. The option of paying otf the principal at any time to remain with the Company. THAT the Company on this agreement being carried out consent to the Crown granting to the City the land covered with water immediately south of the lands covered by this agreement to the Windmill Line, that is to the southern line of said Water Lots. THAT the City agree that the Company may cross the said Esplanade Street at any point and in such manner and as often and with as many tracks as shall be necessary for proper ingress and egress to their Station and Elevator at Toronto. THAT both parties agree to carry out this agreement with the utmost despatch by every means in their power. THAT nothing contained in this agreement or any conces- sion made on either side shall affect either party further than in so far as the same relates to the subject matter of this agreement and the matters mentioned and referred to therein. And that nothing in this agreement contained shall affect, prejudice or in- terfere with the rights of either party in respect of or to any mat- ter or thing not included in this agreement or mentioned therein it being the intention of both parties that the rights of each shall be in every respect as to all and every right matter and thing not mentioned in this agreement and intended to be arranged by it as if it never had been made. rROVIDKD AL\VA^■S and it is umlcrslood by both the parties hereto as to the land by these presents ngreed to be sold that the Corporation of the City of Toronto in agreeinjj to this sale made liy this agreement to the Grand Trunk Railway Company docs not intend to give to tlie said Comi)any nor does tiie said Railway Company expect to receive the said lands agreed to be conveyed under this agreement or any of tiiem for any other purposes than those contemplated in the several Orders in Council relating to the said lands. IN WITNESS WHEREOF tlie said The Crand Trunk Railway Company of Canada and the said The Corporation of the City of Toronto have hereunto caused the Corporate Seals of the said respective Companies to be affixed to these presents on the day and year first above written. Seal of City ) J. G. BOWES, of Toronto. J Mayor, 20 lliii , i, I The Grand Trunk Railway Company of Canada, A. T. McCORD, by JOHN BELL, Chamberlain, Their Attorney and Solicitor^ On the 4TH OF July, 1864, At the instance of the City of Toronto and the Grand Trunk Railway Company, the Government issued the following Patent :— Patent for Lands or Water Lots between Rees Lot and Peter Street. Dated 4th July, 1864. Registered 4th July, 1864. Seal of Province ) of Canada. j PROVINCE OF CANADA,^ Victoria, by the grace of God of the United Kingdom of Great \ Britain and Ireland, Queen, De- fender of the Faith, etc., etc., etc. MONCK. To all to whom these presents shall come, Greeting. KNOW YE, that among the Rolls and Records in the Reg- istrar's Office of the Province of Canada, in Lib. I. K., Folio 163, it is thus contained, to wit : MONCK. PROVINCE OF CANADA, Victoria, by the grace of God of the United Kingdom of Great ■ Britain and Ireland, Queen, De- | fender of the Faith, etc., etc., etc. J To all to whom these presents shall come, Greeting. WHEREAS, the Corporation of the City of Toronto, in the County of York, in our said Province, did, under certain orders of our Governor in Council, of our said Province, and a certain license of occupation, bearing date on the twenty-ninth day of March, in the year of Our Lord one thousand eight hun- dred and fifty-three under the hand and seal of our then Gover- nor, or under the authority conferred upon them in and by certain Statutes of the Parliament of our said Province, enter into possession of certain lands and premises in the said city, (whereof the lands hereby intended to be given and granted form part,) for the formation of an Esplanade. And, whereas, the Corporation of the City of Toronto, in pursuance of the said Statutes, or of some or one of them, and of the authority thereby 21 conferred, proceeded to the construction of an Esplanade in and upon the said lands intended to be hereby given and grant- ed, or some part thereof. And whereas, the Grand Trunk Railway Company of Canada, subsequently, for the purpose of their said Railway, entered into possession of a certain portion of the lands and premises hereby intended to be given and granted to the Corporation of the City of Toronto. And, whereas, it is represented to us, that in and by a certain Deed of Agreement made on the twenty-thi d day of December, in the year of our Lord one thousand eight hundred and sixty-two, by and with the Grand Trunk Railway Company of Canada, of the first part, and the Corporation of the City of Toronto, of the second part, it is recited that the party of the first part had purchased, and the party of the second part had sold to them certain lands and tenements in the said city, in the said recital particularly described. And it IS further recited, that the party of the first part were then in posses- sion of a deed of right of way, forty feet in width on the Esplanade, and north of which said forty feet there is a space sixty feet wide, called Esplanade Street. And it is further recited, that north of the said forty feet and sixty feet (in all one hundred feet), there is a piece of land extending from the north line of said one hundred feet in a direction northerly to the boundary or general line north of the Water Lots as laid down on the original survey of the Water Lots by the Crown. And it is further recited that the fee of the said piece of ground so situated south of the said general line of the said Water Lots as laid down as aforesaid, and north of the said one hun- dred feet is vested in the Crown. And that the party of the first part required the same for their purposes, and desired to get a patent therefor from the Crown, or the title thereto in fee simple. And further, that the party of the second part claimed com- pensation for the filling done by them on the space so described and required as last aforesaid. It is by the said agreement witnessed, and the parties thereby agreed each with the other that the parties thereto should at once proceed to ascertain what the filling done by the party of the second part, on the said piece of land, bounded on the east by the property known as Dr. Rees* property next adjoining Simcoe Street ; on the south by the said northerly lin; of the said one hundred feet, made up of the said forty feet and sixty teet as aforesaid ; on the west by the said lands owned by the party of the first part ; and on the north by the northerly general line of the Water Lots, as laid down on the original survey made by the Crown of the said Water Lots as the northern boundary of the said Lots, should have cost, that is, what it should have been done for; and that if the sum could not be agreed upon, that then each party should choose a disin- terested engineer, and that those two should choose a third, and the award of the said three or any two of them, fixing the amount calculated on the basis of what the same should have been done for, that is, should have reasonably cost, should be final ; pro- vided, however, if the parties could agree on one engineer as sole arbitrator, and that they did so, then his awards made on the basis aforesaid sliould be final. 1 22 And further, that immediately on the same being fixed, and the amount ascertained which the Company were to pay for the said filling, the Company would consent to the Patent then issuing for the said piece of land to the party of the second part, upon the terms and conditions, however, that the party of the second part, shouirt immediately on the Patent issuing grant in fee, by the usual deed of bargain and sale, ant' free from all encumbrances and charges, the said piece of land so described as aforesaid, by the boundaries aforesaid, as being required as therein mentioned. And that on the execution of the saiH deed of bargain and sale to the Company, they, the Company would for the amount so ascertained ns the sum to bj paid for the said filling as therein mentioned, give to the party of the second part, a mortgage in fee as there'n mentioned, to be conditioned, that so long as the Company should pay the party of the second part the interest on the said p-incipal money at the rate of six per cent, per annum, half yearly from the date of the mortgage, the Company '.vere to have the right to retain in their own hands the said principal money, but that if the payments of the mterest should be at any time one calendar month in default, the City might proceed for the said principal sum if they thought proper; and that the optic i of paying off the principal sum at any time should remain with the Company. And further, that the Company on the said agreement now in recit.il being carrief Toronto, :ited deed, xecute and the Grand ind assigns, considera tion of the sum of three thousand seven hundred and fifty-five dollars, to be secured by mortgage as hereinafter mentioned, all that piece or parcel of land being a portion of the lands hereby given and granted, and which may be known and described as follows, that is to say : extending from the north line or bound- ary of Esplanade Street in a direction northerly up to the said boundary or general line north of the said Water Lots, as laid down in the original survey of the Water Lots, and bounded on the east by Dr. Rees' property immediately adjoining Simcoe Street, and granted by letters patent, in the year one thousand eight hundred and forty-six, to one Joseph Beckett, and on the west by the Water Lot heretofore granted to the Honorable J. Masson and A. Furniss. And further, that upon execution and delivery of such deed and bargain of sale, as aforesaid, they, the Grand Trunk Railway Company of Canada, do and shall execute and deliver to the Corporation of the City of Toronto, their suc- cessors and assigns, and that the Corporation of the City of To- ronto shall accept and receive from the Grand Trunk Railway Company of Canada, a deed of mortgage in fee on the said lands and premises, so to be conveyed to them as lastly hereinbefore mentioned to secure payment to the Corporation of the City of Toronto, of the sum of three thousand seven hundred and fifty- five dollars, and that so long as the said Company pay to the said City of Toronto, the interest on the last mentioned principal sum of money, at the rate of six per cent, per annum, half yearly from the date of the mortgage, the Grand Trunk Railway Com- pany of Canada shall have the right to retain in their own hands the said principal money ; but that if the payment of the interest shall be at any time one calendar month in default, the Corpora- tion of the City of Toronto may proceed for the recovery of the said princ.ii)al sum of money to be thereby secured, and that the option of paying off the principal at any time shall remain with the Company. Fourthly. That nothing in these our letters patent cont.iincd shall be j taken as affecting any agreement heretofore made Ijetween the Grand Trunk Railway Company of Canada, and the Corporation of the City of Toronto, respecting right of way on the said Esplanade. Given under the great seal of our I'rovince of Canada. Witness our right trusty and well-beloved cousin, the Right Honorable Charles Stanley, Viscount Monck, of Hallytrammon, in the County of Wexford, (iovernor-C General of Hritish North America, and Captain-General, and Govemor-in-Chief in and over our Provinces of Canada, Nova Scotia, New Brunswick, and the Island of Prince Edward, and Vice-Admiral of the same, etc., etc., etc. At Quebec, this fourth day of July in the year of our 26 Lord one thousand eight hundred and sixty-four and in the^ K.N twenty-eighth year of our reign. ^egistrai JO, it is By command of His Excellency in Council. ■"[ONCK. G. POWELL, ANDREW RUSSELL. |PROV Act'g Ass't Secretary. Ass't Com. of Crown Lands,^ th TT All which we have commanded to be exemplified. Jritam a Given under the great seal of our Province of Canada Witness our right trusty and well beloved cousin, the Righi Honorable Charles Stanley, Viscount Monck, Baron Monck, off Ballytrammon in the County of Wexford, Governor-General British North America, and Captain-General and Govemor-inI Chief in and over our Provinces of Canada, Nova Scotia, Nei Brunswick and the Island of Prince Edward and Vice Admiral ol the same, etc., etc., etc At Quebec this thirteenth day of July] in the year of our Lord one thousand eight hundred and sixty' four, and in the twenty-eighth year of our reign. Examined, Wm. KENT. By Command, E. A. MEREDITH, Assistant Secretary. On the 1 8th of July, 1864, the Corporation of the City Toronto did convey the lands so mentioned in said patent to th -rpby mt Grand Trunk in fee simple. The lands known as the Round House Block, between Pete and Brock Streets, being in possession of the Grand Trunk, agreement was made for the purchase thereof by that CompanK)m time for $35,000. This agreement is fully set out in the patent issue by the Crown at the instance of the City and the Grand Trun on the 13th of June, 1864, which patent is as follows : Inder of WH ^rtain 01 id a car |nth da\ mdred )vernor the sal Id grant And irsuand n statu t an Esji And bsetjuer lildings ihe sai( And Patent for Round House Block. Dated June 1864. Registered June 14th, 1864. 13th Seal of Province ) of Canada. / PROVINCE OF CANADA, Victoria, by the Grace of God of the United Kingdom of (ireat \ Britain and Ireland, Qukkn, de- | fender of the faith, etc., etc., etc J MONCI To all to whom these ptesen shall come , Greeting. e City inada, ii d lands reby giv And tiling lo: )mpany Bpecting fccting t Icen the " It i ind the 27 KNOW YE, that amongst the Rolls and Records in the [.egistrar's Office of the Province of Canada in Lib. I. K., Folio ;o, it is thus contained, to wit : [ONCK. [PROVINCE OF CANADA, "| Victoria, by the grace of God | the United ^vingdom of Great [■ Iritain and Ireland, Queen, de- | jnder of the Faith, &c., &c, &c. J To all to whom these presents shall come, Greeting. WHEREAS, the Corporation of the City of Toronto, under trtain orders of our Governor in Council of our said Province, id a certain license of occupation being dated on the twenty- [nth day of March, in the year of our Lord one thousand eight indred and fifty-three, under the hand and seal of our then )vemor, entered into possession of certain lands and premises the said city (whereof the lands hereby intended to be given ^d granted form part) for the formation of an Esplanade. And whereas, the Corporation of the City of Toronto, in irsuance of the authority conferred upon them, in and by cer- in statutes of our said Province proceeded to the construction an Esplanade in and upon or adjoining said lands. And whereas, the Grand Trunk Railway Company of Canada, Ibsecjuently entered into possession of the lands and premises treby intended to be given and granted, and erected certain lildings on the same, or on some part thereof for the purpose the said Railway. And whereas, divers negotiations and transactions, have )m time to time been entered into between the Corporation of |e City of Toronto and the Grand Trunk Railway Company of mada, in respect to matters arising out of or connected with the id lands and premises hereinafter described and intended to be [reby given and granted. And whereas, it is represented to us, that for the purpose of ttling long pending disputes between the Grand Trunk Railway )inpany of Canada and the Corporation of the City of Toronto, specting the lands hereinafter described, and other matters tecting the same, the following agreement was entered into be- [een the said parties, in these words : "Quebec^ August a5th, 1863. " It is agreed that all questions between the City of Toronto ind the Grand Trunk Railway Company, respecting the pur- 28 " chase of lands and payment for filling, shall be finally settll ** by the latter agreeing to the sum of thirty-five thousand dolla| " as the price for the Round House Lot and water front in frc " thereof for the elevators, &c. The previous agreement for whar\[ " and harbours to be at once completed at the amount fixed " Fleming's award, and the sum of thirty-five thousand dollars | " be secured by mortgage in the way and on same terms " Wharves and Harbour agreement. The Grand Trunk Co| " pany to have the right to lay down tracks on and across " planade Street, between Peter and Brock Streets, to the " extent that their business may from time to time render necj •* sary. This agreement settles all matters in dispute for Ian " and filling done between Brock Street and r3r. Rees' propej " adjoining Simcoe Street. The patent for the Round Hou " Block on the above conditions to issue to the city. The de ** to the Grand Trunk to be the usual deed of bargain and sa "and to convey the lands in question free from all charges, tlj " is, by a clear title ; the usual mortgage to he made in retii "on the same terms as mentioned above. The above agreemd " only includes the filling done on the Round House Block, ai ** on the lands covered by the agreement of the third and twenj "third day of December, 1862, and no others, and the woif " ' on and across Esplanade Street' shall extend only to the rig " to cross the Esplanade Street as the business of the Gra "Trunk Railway Company may require." And whereas, we are willing agreement should be carried out. in consideration of the premises, and desirous that the sJ Now therefore, know ye, tlj and in aid and furtheran of the hereinafter recited agreement. We of our spec! grace, certain knowledge and mere motion, have given and grai ed, and by these presents do give and grant unto the Corpoj tion of the City of Toronto, their successors and assij^ns, all tf certain tract and parcel of land in the above recited agreeme mentioned and described as "the Round House Block," that] to say, all that tract or parcel of land situated in the said of Toronto, and bounded on the north by the south side Front Street ; on the south by the line known as the "Windr Line ;" on the east by the south side of Peter Street ; and on west by the east side of Brock Street, and containing by adm| surement ten acres, be the same more or less, saving and excj ting thereout, and reserving to the Great Western Raih Company of Canada, their successors and assigns, (upon raent to the Grand Trunk Railway Company of Canada, of su sum of money as compensation therefor, as may be ascertain as hereinafter provided,) a right of way m, through and upon piece or parcel of land hereinbefore mentioned, and herj given and granted for the purposes of a railway track. 29 ich said right of way is hereby defined and prescribed to con- in a width of six feet, produced on either side from the itre of the Railway track, as heretofore laid down between ^er Street and Brock Street, hereinbefore mentioned, by the ;at Western Railway Company of Canada, and now occupied used by the last mentioned Company for such purposes, and flan of which said Railway track, whereof such right of way lereby reserved, shall be made and certified by a duly quali- land surveyor, and filed or deposited within a period of six Inths from the date of these our letters patent in the office of Provincial Registrar, and in the Registry Office of the City "oronto aforesaid, and which said right of way, as herein ined and prescribed, shall be liable from time to time, to be ied by the substitution of a right of way, to the same extent iforesaid, to the said Company for Railway purposes, in, )ugh and upon such other portion of the said piece or parcel between Peter Street and Brock Street, hereinbefore itioned and hereby given and granted as nny be agreed upon /een the Grand Trunk Railway Company of Canada, their fcessors or assigns, and the Great Western Railway Company 'anada, their successors and assigns, or as in case of dis- ;ement may be determined by arbitration as hereinafter men- led, and which said right of way (upon payment therefor as leinafter mentioned) whether as heieinafter defined and pre- ]bed, or if varied as hereinbefore mentioned, shall be held, and enjoyed by the said the Great Western Railway Com- of Canada, subject to the right, condition and power of the |ind Trunk Railway Company of Canada, to cross such right /ay, and the track of the said the (ireat Western Railway iipany of Canada, thereon existing, as often and in such mer as may be necessary for the purposes of their business, also subject to payment by the Great Western Railway ipany of Canada, their successors and assigns, to the Corpora- of the Grand Trunk Railway Company of Canada, their :essors and assigns, of such sum of money as shall be adequate compensation theref^ur. And as of way, hereinbefore reserved, whether the defined and prescribed or varied as here- jfore mentioned or the crossing thereon by the Grand Ink Railway Company of Canada, or upon the track thereon jting, or the points or manner of sucls crossing or the amount mpensation to be paid by the Grc.ii Western Railway Com- of Canada, as aforesaid, any disagreement shall be deter- .'d by arbitration and award, to be originated and con- led under, and in pursuance of the sixty-sixth Chapter of Consclidated Statutes of Canada, entitled "An art respect- Railways," to have and to hold the same and every part tonable and [which right be that 30 thereof unto the said the Corporation of the City of Toronto, their successors and assigns forever, saving, excepting, and re- serving, nevertheless, unto us, our heirs and successors all mines of gold and silver, and the free uses, passage and enjoyment of, in over and upon all navigable waters that shall or may be here- after found on, or under, or flowing through or upon any part of the said piece or parcel of land hereby granted as aforesaid; subject, however, to and upon the express trusts and conditions following, that is to say : Firstly. That no claim or demand of any kind or nature soever shall be made or preferred by the Corporation of the City of Toronto, their successors or assigns, or by the Grand Trunk Railway Company of Canada, their successors or assigns or any party claiming, by, from, through or under them, or any or either of them, upon or against us, our heirs and successors in respect of the said lands and premises hereby given and granted, or in respect of any work, labor or money made, ex- pended and laid out, or liabilities incurred in respect thereof by them or either of them, in or upon the lands and premises here- by given and granted, or the levelling, excavation or filling up of the same or any part thereof, whether in the construction of an Esplanade in, or upon, or adjoining the said lands and premises, or in the preparation of the same for Railway purposes or other- wise howsoever. Co^ on befd ken Kail] respJ niH And further, that the grant made by these our letters patent is and shall be held and taken in full release and discharge of any alleged or possible claim or demand of any nature or kind soever as aforesaid which might or may be made by the Corpor- ation of the City of Toronto, or the Grand Trunk Railway Com- pany of Canada, or either of them. Secondly. That they the Corporation of the City of Toronto, do and shall with all reasonable dispatch carry out the agreement hereinbefore recited, and do upon the terms therein expressed for the purposes of their Railway convey to the Grand Trunk Rail- way Company of C!anada, their successors and assigns all the lands hereinbefore described and hereby given and granted, except the Es- planade of one hundred feet in width as constructed and extend- ing through the said lands hereby given and granted, and also saving and reserving, out of the said lands hereby given and granted the easement or right of way to the Great Western Railway Company of Canada, herein reserved in such express manner and terms as the same is hereinbefore saved and reserv- ed, and that such deed of conveyance so to be given by the Corporation of the City of Toronto to the Grand Trunk Railway )f Toronto, y, and re- s all mines )yment of, ay be here- iny part of aforesaid ; conditions or nature ion of the :hc Grand or assigns m, or any successors given and made, ex- thereof by mises here- lling up of ion of an d premises, s or other- ;ers patent Icharge of or kind Corpor- Vcv/ Com- Toronto, ligreement expressed Kmk Rail- the lands )t the Es- extend- land also iven and Western express Id reserv- by the Railway 31 Company of Canada, their successors and assigns shall be given on the terms and for the consideration in the agreement herein- before recited, expressed, and in pursuance thereof Thirdly. That nothing in these our letters patent contained shall be ta. ken as affecting any agreement heretofore made between the Grand Trunk Railway Company of Canada, and the Corporation of the City of Toronto respecting right of way on the said Esplanade. Given under the great seal of our Province of Canada. Witness our right trusty, and well beloved cousin. The Right Honorable Charles Stanley, Viscount Monck, Baron Monck of Ballytrammon, in the County of Wexford, Governor-General of British North America, and Captain-General, and Governor-in- Chief in and over our Provinces of Canada, Nova Scotia, New Brunswick, and the Island of Prince Edward, and Vice-Admiral of the same, &c., &c., e required ation to be ses of the Memorandum. ho h ^^'^^^^^^ ^^'"^ ^'^"^ '^"^"^ ^^'^^^y Company of Cana- Le atv nf t'^ T'"''^ " '""'■'S^Se to the Corporation of Ifie City of Toronto upon certain lands therein described ituate between York and Simcoe Streets in the City of Toronto hd north of the Esplanade. It is hereby declared and agreed Ihat at any time after the construction of the station in said lortgage mentioned, and on payment of the consideration mon ly m said mortgage named, and all interest then unpaid thereon lie Corporation of the City of Toronto shall discharge the said hortgage by certificate in the usual form or othenvise as he |aid Comi)any may require. IN witness whereof the said Corporation of the Citv of I oronto have hereunto set their official seal this twenty-ninth nL ^^'J''''^' "'.^!'^ y^^' °^ °"^ Lord one thousand eight [undred and sixty-eight. »u tii,iu presence of ) PHAS. W. COOPER. ; JAMES E. SMITH, Mayor. A. T. McCORD, Chamberlain. I Seal of City of Toronto. 86 '!«< On the lands so purchased as appears above, the Gra Trunk Railway Company have caused an Elevator and Whan tG be constructed, also two large Engine Houses, with vario other buildings, freight sheds, some seven hundred feet long a the Union Station ; also the vast mass of tracks ut meet the requi ments of their freight and passenger business, including local ai through. And besides it is crossed by the Great Western a the Toronto, Grey & Bruce. Also their double tracks to Que id le Street, and sidings. And east of York Street they have down all the tracks contemplated by the agreement with the Ci dated the 19th day of April, 1865, and which is given abo and they are now in use. The total expenditure of the Grand Trunk in the City Toronto, is over half a million dollars. Ithe OSS >ectii at y< imp at inte SCUS! heth( The above shews first as regards the Esplanade east of Yc ent \ Street, that the Grand Trunk hold nol only by grant from the C Jm^i" but by agreement afterwards made under Act of Parliament, under the act of 1865. As regards the lands between York a jny a Brock Streets, the Grand Trunk hold them in fee mainly xinM' ' patents issued at the instance of the City, and under stipulat by the Crown, that they should be conveyed to the Grand Tri for their purposes ; and from Brock Street to Queen Street ^f^ ^^ Grand Trunk hold by agreement of all the Companies and the Crown, and in exchange for the right of way paid for by th through the Northern grounds, and which they gave up for •rangi lands now occupied by them, witii the consent and at the instai of the Government and all the parties interested, including City of Toronto ; and all this is in fact confirmed by the act agreement of 1865, in which the Grand Trunk abandon all tl claims to cross the Northern grounds. These laiids the Grand Trunk Railway require for the p poses of their Railway, — the Crown and the City admit this the Company's business is still increasing. Nevertheless, it is [ posed to take from them the lands they require and give th to ar.'^Hher Company, only because that other Company ins that they reciuire them, and that they must and shall use and with these as they please, no matter what the loss or detrinn to others may be. Dea th( e ac To shew the feeling of the Grand Trunk Railway Comp. towards other lines, it may be mentioned that they have gi every facility in their jwwer to the Toronto, Grey and and the 'I'oronto and Nipissing Railways ; and the Grand in the same way have offered to deal with the Credit Railway as will appear from the following letters. I Ikth I " I ains t torn tl ••a 'orkin remisi "3 cone illing trictly ut the ^J^ itions In icilitic 87 lOve, the Gra tor and Whan es, with vario red feet long a I meet the requi Lcluding local ai rreat Western a " Grand Trunk Railway op Canada, •'General Manager's Office, "At Toronto, June 6, 1879." Dea"^ Sir, •' I was sorry that I could not see you when you called the Queen's Hotel yesterday morning. I was just in e act of dressing and when I got down stairs I found you 2t they have lent with the Ci 1 is given abo c in the City tracks to Que id left. I sent up to your office to-day to see if you or Mr. OSS could come down and have a conference with me re- ►ecting terminal accommodation in this city and I found at you were both out of town. I also enquired for Mr. ampbell, the Vice-President of your Company and I found at he was out of town also. I rather regret this because intended to take up the subject which we proposed to scuss in a general way w'*h you, and to determine ether it is possible for us to make a satisfactory arrange- ent with your Company for an exchange of business and rminal facilities in this city. " I may say to you that we desire to give your Com- ny accommodation in our station here, and to afford you 1 the facilities which we reasonably can on fair terms. " If you do not return to Toronto before I leave I hope at you will ran down to Montreal in order that we may ilk the matter over. nade east of Yi ant from the C ' Parliament, jtween York ee mainly un jnder stipulati the Grand Tr ^ueen Street inpanics and paid for byth ^ave up for nd at the instai d, including l)y the act : jandon all tl lire for the p ty admit this ■rtheless, it is[ and give Company in " I may in this letter indicate generally the sort of rangement which I think we could enter into. '• ist. That you shall run your freight and passenger ains to our stations in this city making use of our track om the neighbourhood of Bathurst Street. '• 2nd. That we afford yon ^''commodation for the orking ol your freight and passenger traffic on and in our remises. " 3rd. That so far as your traffic in and out of this city th i concerned we do the work with our staff ot booking, illing and handling for you on terms agreed upon. )S lall use and or detriniJ ilway CompJ icy have gij rey and Bri^ c (Jrand TH c Credit Val •'4th. That as regards rates and other arrangements trictly pertaining to j'our business our staff arc to carry |ut the instructions of your officers. " 5th. Your *.rains and employes when on the premises [f the Grand Trunk Company to be subject to our regu* itions and under the control of our officers. " 6th. In consideration of our giving you rates and icilities for traffic from the line of your road to points east 'I I m k 38 of Toronto, you are to co-operate with us in developing such traffic and not to enter into competition with us so as to injure our business eastward. " 7th. Your Company to have the right to send traffic to and from our Elevator and as far as we are able to give that right to you, to receive and deliver traffic along the Esplanade. "8th. The agreement to be for such term of years a.nd such compensation to be paid as we may hereafter agree upon. •• In a general way I have indicated the basis on which I think we can make an arrangement with you. If this basis will be satisfactory to you I will at once consider the question of the compensation to be paid to us and have prepared a draft agreement for the consideration of your Company. " I am " Yours truly, " J. HICKSON." " Geo. Laidlaw, Esq, ♦• President, " Credit Valley Railway Co., '• Toronto, " Grand Trunk Railway of Canada, "General Manager's Office, " Montreal, June 27, 1879." " Geo. Laidlaw, Esq., President Credit Valley Railway Company, Toronto." " Dear Sir, "You are probably aware that I have been almost con- tinually from home since the date of your letter of June 9th in reply to my communication addressed to you on the 26th ult. That is the reason why you have not had an earlier reply. " I very r.iuch regret to see the persistent efforts which are made to misrepresent this Company, and I think 1 have cause to complain that a letter addressed to you in the ordiniry course of business should have been, without my permission, published in the newspapers. « « « n developing with us so as o send traffic able to give ffic along the of years and reafter agree sis on which you. If this consider the us and have tion of your CKSON." lADA, ;e, 7. 1879-" Toronto." lilmost con- •f June 9th hn the 26th ]an earlier >rts which link I have fou in the (ithout my 89 " Your Company have sought to arrange with us for accommodation for its business in the city of Toronto. I have explained to you very frankly the rature of the ar- rangement which we can make. You evidently entirely mis- apprehend what I have written, and we are again misrepre- sented as monopolists and obstructionists. " The Grand Trunk Railway has not sought to pool traffic with the Credit Valley Railway Company, nor has i in any way sought to exercise \mdue control over the busi- ness of the Credit Valley Railway line. As I have already advised you, the Grand Trunk Railway Company are willing to afford your Company facilities for traffic going east of Toronto, ar.»i this without any limit as to where the traffic originates, although a portion would undoubtedly come from places where, as you yourself represented, the Credit Valley Railway would be in competition with the Grand Trunk Railway. Does this look at all like an attempt to fetter the action of the Credit Valley Railway Company ? '• Whatever sum the city of Toronto may have expended on the Esplanade, it is n well known fact, of which you must be personally cognizan , tti.-t the Grand Trunk Railway has spent an immense sum of money, not only in the construc- tion of works on the Esplanade, but in maintaining them for many years past. The relations of the city to the Es- planade, and to the railway companies who occupy it are all settled by agreement and in a manner which, I think, is perfectly intelligible. •• It is not for me to enter into any controversy as to the right of the city to interfere and upset existing agree- ments. I shall very much regret if any such interference tokes place, because I believe your Company can acquire all the facilities and accommodations which are necessary for its business on terms which cannot but be considered reas- onable, and ought by a reasonable people to be considered satisfactory. " I notice that you say in your letter that you cannot consent ' to si^jn or become parties to an agreement which would determine the rates of freight from points on the line of the Credit Valley Railway westward to points eastward on the Grand Trunk Railway.' Can you point out a single sentence in my letter previously addressed to you which m- dicates any intention or desire on my part to force you into any such arrangement ? Are you not simply, in writing in this way, setting up men of straw for the pleasure of knock* ing them down ? 40 '* As regards the working of the traffic of this Company's stations at Toronto I can only say that it will be utterly im- possible for us to provide accommodation in our stations where the work of your line could be done separately by a separate staff, and independent of the staff of the Grand Trunk Railway Company. " If we make an arrangement with you for your passen- ger trains to run into the Union Station it will necessitate some change in our arrangements with the Toronto, Grey Sc Bruce Railway Company. Whilst there is, I believe, ample accommodation for the business of your line, if it is worked in connection with the Grand Trunk Railway Com- pany and by the Grand Trunk Railway staff, I am sure there is not space enough in which to set up independent establishments. i' ; till " I was careful to point out to you in my last letter that our employes would act as if they were in the service of the Company in all matters relating to rates, charges and ar- rangements appertaining purely to our own business, and I say now that we should not, an arrangement being made, desire in any way to interfere in these matters. •' Such arrangements as I have indicated respecting ter- minal accommodation are not novel. They are frequently resorted to both in this country and in Europe. The busi- ness of the Grand Trunk Railway at Buffalo, for instance, is done in the depot of the New York Central Company, and is attended to by the employes of that Company. In a similar way the greater part of the work connected with our passenger business in Detroit is attended to by the em- ployes of the Michigan Central Company, and we are not even allowed to run our own engines into that Company's depot. •• We desire only friendly relations with the Credit Valley Company. If you force another state of affairs upon us we will endeavor, of course, to protect our own interests, and especially to guard our own property. You have sought to make an arrangement with us. If our terms are not such as you think you can expect, it is not compulsory upon you to accept them. •• You must concede that we have some right to a voice in the matter, especially looking at the enormous sum of money which we nave had to expend in order to provide terminal facilities for the business of the Company in Toronto. 41 •' It will be no fault of the Grand Trunk Railway Com- pany if satisfactory arrangements are not made and friendly relations do not exist in the future between the two Com- panies. " I am, dear Sir, " Yours very truly, "J. HICKSON." " Grand Trunk Railway of Canada, " General Manager's Office, "Montreal, 29TH December, 1879, ** George Laidlaw, Esq., " President Credit Valley Railway, Toronto. '* Dear Sir, " I find that misrepresentations still continue to be made in Toronto on the subject of the attitude of the Grand Trunk towards the Credit Valley Company. The latest which has come under my notice is that traffic is being offered along the line of the Credit Valley Railway which cannot be brought into Toronto in consequence of obstructions placed in the way of your Company by the Grand Trunk, and that the public are thereby not only seriously inconrenienced but heavy losers. " I confess I cannot understand why you should, in face of the facts which are known to you, persist in this line of policy. From the Grand Trunk Company, ever since you commenced to construct the Credit Valley Line, you have met with more liberal treatment than from any neighboring Company. All your crossing arrangements have been se- cured without the slightest trouble or inconvenience. When you asked us to connect the Grand Trunk with the Credit Valley at the Wilson House, your request was promptly and willingly complied with. A short time ago when you asked us to remove this connection we were prepared to do so, but left it there in consequence of a later request from your Company that it should be allowed to remain. The materials which you have required to receive and to send by way of this connection have been carried by this Com- pany on the most liberal terms and conditions. We have stood ready to take your business to and from Toronto at any time on terms which, if not in your opinion satisfactory 'P 42 to you as a permanent arrangement, were, it cannot be de- nied, such as to enable you to transact any business there has been to do, and to enable you to avoid inccnvenience to the public if you desired to do so. *' In order to avoid further misrepresentation on this point, I beg to advise you that we are prepared to take the traffic of the Credit Valley to and from our stations in To- ronto via the Wilson House switch on the following terms, viz : " For each loaded car to or from the Shedden Com- pany's elevator, or the freight station of the Grand Trunk, or the esplanade, the contents of which have not to be handled by us, $3. " For traffic handled by the staff of the Grand Trunk Company, actual expenses divided by the tonnage of both companies handled, or if preferred a fixed rate of twenty cents per ton additional. " For traffic carted in Toronto, the charge paid for cartage by the Grand Trunk Company additional. " For grain sent into the elevator, in addition to the charge for hauling the cars between the Wilson House switch and the elevator, the charges of the Shedden Company for elevating. " Note. — The Grand Trunk Company will use their good offices to procure same terms and conditions as apply to their own traffic. t ■ •' For empty cars passing between the elevator, the -esplanade, or the freight warehouses of the Grand Trunk and the Wilson House switch, 50c per car. " For passenger cars containing passengers between the Wilson House switch and the Union Station, $3.50 per car. " For express, freight or baggage cars, $3 per car. " In addition to these charges if the cars are to be cleaned, lubricated, &c., by the staff of the Grand Trunk Company, the actual cost of doing the work. " Of course no mileage is to be charged by your Com- pany on cars passing between the Wilson House switch and the elevator, the esplanade, the freight warehouses, or the Union Station in Toronto. 43 " As regards through traffic we are prepared to supply our fair share of the cars required for its transportation on the usual conditions, namely, a payment of three-fourths cent, per car per mile when the cars are off our own line, and we shall be prepared to allow your Company on its cars which may come upon the Grand Trunk Railway, a similar rate. " We are prepared to book passengers to all your stations from Toronto at such fares as you may desire to charge. " A list of rates for traffic to or from places on the Credit Valley and places on the Grand Trunk Railway, which h.'.s been prepared by the General Freight Agent of thiw Company is attached, and a table showing the percen- tage divisions of such rates is in course of preparation. "These rates we are ready to at once put into opera- tion for traffic, to be exchanged between the Credit Valley and the Grand Trunk system. " If the rates are not found to be satisfactory, the Gen- eral Freight Agent of this Company will be prepared to meet any officer of your Company who may be charged with the duty of considering them, and to agree upon such modi- fications as are necessary to meet the requirements of the business. " I shall send a copy of this letter to the Mayor of To- ronto and to the President of the Board of Trade, in order that it may be clearly understood if there is any interruption to business between the section of country served by the Credit Valley Railway and the metropolis of Ontario, that it does not result from any obstruction on the part of this Company, but simply from causes wholly within the control of your Company to remedy. " I am, dear sir, •• Yours truly, "J. HICKSON, •• General Manager." PI 44 It would appear, however, that the Credit Valley, and, to some extent, the City of Toronto, never seem to think that the question is, not, how can this new railway get in with the greatest advantage to itself and its neighbors, but, how can it, in getting into the City, do the greatest amount of injury to the other Com- panies, irrespective of whether it, as a Company, is benefitted or not ; m other words, how can the Credit Valley shew the great- est hostility to existing interests ? The Grand Trunk have on the faith of deeds and statutes, expended large sums of money, and they have done this on the faith of the Acts of the Crown and agreements with the City. They, therefore, cannot but feel surprised to see Parliament asked to disregard all these when no adequate reason exists for such a high-handed and extraordinary course. Herewith is a statement which appeared in the Mail^ and also a judgment of the Court in the suit now pending : — The following statement on behalf of the Grand Trunk and Northern Railways of Canada, explains the nature of the dispute between these companies and the Credit Valley Railway Com- pany relative to the attempted entry into Toronto by the latter Company over the lands of the Grand Trunk and Northern Rail- ways. For months past the Grand Trunk and Northern Railways have been accused and denounced by various persons and news- papers for attempting (as was alleged) to crush the Credit Valley Railway and prevent its access to the Bay in the City of Toronto. It has been stated repeatedly in the public press that neither the Grand Trunk Railway nor the Northern Railway is en- titled to the lands claimed by them, and public feeling has been persistently aroused against these companies by adherents of the Credit Valley Railway Company, by means of newspaper articles and municipal resolutions. Acting under advice of counsel, these railways have hitherto refrained from replying to these attacks, awaiting the final deci- sion of the Courts. That decision having been rendered in favor of the Grand Trunk and Northern Railways, these companies desire now to put the facts of the case before the public, relying upon their fair judgment to justify the course adopted by them in defending their rights. The land in question is a strip of land of one hundred feet in width, extending from Queen Street on the west to Bathurst Street on the east. I "If 45 In the month of June last the Credit Valley Railway Company applied to Sir John A. Macdonald, the Minister of the Interior, for a license of occupation for a portion of this strip. The land in question formerly b Jonged to the Ordnance Department, forming a portion of what was known as the Ord- nance Reserve. By an Act passed in the year one thousand eight hundred and fifty-six, the Ordnance lands became vested in the Crown, and it was contended by the Credit Valley Railway that the land in question, meaning the strip of one hundred feet, became vest- ed by virtue of that Act in the Crown, and in consequence the application was made to the Minister of the Interior, the control of the Ordnance lands being in his Department. Sir John A. Macdonald accorded a patient and considerate hear- ing to the claims of the different railways, but on the 1 9th day of July, one thousand eight hundred and seventy-nine, granted a license of occupation to the Credit Valley Railway. Sir John A. Macdonald, however, while granting the license, was careful to protect the interests of the Grand Trunk and Northern Railways. On the application for the license he pointed out to the Counsel for the Credit Valley Railway that only a limited right would be granted, and he used the following language : — ^"If the Northern Railway or the other railways have any legal or equit- able title the Government cannot interfere with that, and no mat- ter what the Government might do, the Court would override any decision they might arrive at as to getting across this Ordnance Property. No grant, or patent, or license of occupation will be of any value if the title is elsewhere, either legally or equitably. Following out this statement, and with a due regard to the rights of these Railways, the Order-in-Council on which the license was based expressly saved the rights of these Railways. The Credit Valley Railway, therefore, accepted the license with the full knowledge that it might be of no effect. It appears, from the Order-in Council, that the license of o ccupation was granted on a representation that there was no other entrance into Toronto except over this one hundred feet strip. But for this mis-representation the Minister of the Interior would not, it is fair to assume, have granted the license. With the view of explaning the unfairness of the proposed attempt by the Credit Valley Railway Company, and that it was I 4 46 li iii not even justified by necessity, we insert the evidence of Frank Shanly, Esq., given in the suit between the parties. From reading this examination it appears that to the south of the strip of one hundred feet there is vacant land almost to Bathurst Street owned by the Government, and over which the Credit Valley Railway might be laid. Between the wall of the Central Prison and the south fence of the one hundred feet strip there is a space of fifty feet. It appears from this examination how easily the Credit Valley Railway could construct their r''il- way, if disposed to expend in construction a portion of what has been spent in litigation. Q. Have you measured the land south of this one hundred feetat all to Bathurst Street ? A. I haven't measured it specially. Q. How many feet is there between the Prison wall and the fence to the south of the one hundred feet at present :• A. I can't tell you from memory but I think there is some- thing like twenty paces, there would be in the neighborhood of from fifty to sixty feet ? Q. Running from Queen Street down to the prison wall I am told it is clear south of the one hundred feet ? A. Yes, I think so ; there is a large space of vacant ground ? Q. Roughly considered, more than one hundred feet in width ? A. Yes, considerably more than one hundred feet. Q. And that land is owned by the Government ? A. It is where the present brick-yards are, from Queen Street to the corner of the prison wall, 1 should say would be about 2,800 feet ; a little over half a mile. Q. And in that half mile there is ample space to the south of this one hundred feet owned by the Government ? A. Yes, there is plenty of space ; it is just the same land as the rest— the same level. Q. And with fair engineering talent, there is no difficulty in constructing a railroad over that land ? A. It would hardly require an engineer to i)ut a railway there if you had the land ; all you would have to do is to widen out the rest of the tracks ; it is all the same level. :l| i| i 47 Q. You see no difficulties at all in constructing a track there ? A. No. Q. Is there any fence blocking up the land between the prison wall and the one hundred feet strip ? A. I am not sure about that ; I rather' think there is a wooden fence, but I don't know. Q. Then you go on and there is about 50 or 60 feet south of the one hundred feet strip between the southern fence and the prison wall ? A. Yes ; that space extends you may say down to Strachan Avenue, or very nearly so at all events ; of course after you pass the prison w?ll you come into Central Prison grounds, where there is a plantation and garden. Q. After you pass the easterly Prison wall, that is the brick wall of the Prison, you come then into the Prison grounds which are not fenced off except by the railway fence. A. Yes. Q. And from Queen street right down to Strachan avenue the ground is all open ? A. Yes. Q. And a railway constructed from Queen street to Strach- an avenue could be laid right down without knocking any fence down ? A. street. That is my impression, except the fence on King Q. There is no reason why a railway shouldn't be built from Strachan avenue to the south of this 100 feet ? A. No reason at all if you had the ground ; 1 have always understood that the ground to the west of the prison wall be- longs to the (iovernment ; the land to the east of the prison wall to Strachan avenue is a garden and plantation; the prison- ers are not confined there at all ; I think the (iovernment own that ; it is about 4,700 feet from Queen street to Strachan avenue — nearly a mile. Q. And you see no reason why a railway shouldn't be constructed on that strip ? A. No reason at all, provided they got the ground. I ■ m 48 Q. When you go east of Strachan avenue what obstruct- ions are there ? A. You come right into the emigrant shed; I didn't measure the space between the emigrant shed and this loo feet; the emigrant shed is not over 25 feet from Strachan avenue. Q. Between the emigrant shed and the southern fence of this 100 feet strip there is about ' it open, I suppose ? A. Yes. Q. Where one track might be run along ? A. Yes, by excavating and removing the emigrant shed platform ; after that you would come on to the platform of the Great Western railway and Northern railway before you would meet with any other obstructions ; that is about the eighth of a mile from Bathurst street. Q. So that with these exceptions you could lay a track from Queen street to within the eighth of a mile of Bathurst street without removing anything ? A. I am under the impressi lu couldn't do that without coming into the grounds claimed 3 Great Western, but I don't know of my own knowledge what the boundaries are. Q. On the face of the ground, irrespective of title or what- -ever difficulty there might be in acquiring the land, you could come down within an eighth of a mile of Bathurst street simply by removing the platform of the emigrant shed. A. Yes, and building a retaining wall. Q. There is no engineering difficulty in the way ? A. Not at all ; you just have to excavate the same as the Northern railway and the Grand Trunk railway did ; it wouldn't be very expensive ; the most expensive part would be after you passed the emigrant shed; the Great Western railway and Northern railway platform is within an eighth of a mile of Bath- urst street ; they would have to be removed, and then you could get to Bathurst street, but there the tracks would have to be ad- justed or the new track would have to have running powers over the other tracks under the statute. Q. Looking at the third paragraph of your affidavit you said " that the said strip furnishes practically the only approach etc., that is to say the only constructed approach? 49 A. Of course I am speaking of the loo feet strip alone; I have no reference to any other land ; I am speaking of the approaches contained within the loo feet strip. Q. There is another approach to the south of this loo feet strip ? A. Yes, if you get the ground. Q. Do you know of any difficulty in getting the ground? A. No, but when I made this affidavit I had only this lOO feet in view. Q. And there is no engineering difficulty in constructing the line to the south ? A. No. Q, What you meant was that there was no other approach within the loo feet strip ? A. Exactly. Q. But you didn't mean to say that there wasn't an ap- proach outside the loofeet? A. No, I didn't mean that ; because any body coming along there can see that if you get the land and move the emi grant platform there is plenty of room. It may be asked what motive the Credit Valley railway would have in attempting to appropriate the lands of the North- em and Grand Trunk railways when they might have constructed their railway over land to the south ; The answer is obvious. The Grand Trunk railway and Northern railway have expended over fifty thousand dollars in making this strip available for their railways. The license of occupation requires the Credit Valley railway to pay the large (!) sum of one hundred dollars a year to the Government for a portion of this strip, extending from Queen street to Bathurst street, one mile and a quarter in length. They would merely have to lay their rails on land prepared by the Grand Trunk railway and Northern railway. Looking to the great increase of traffic on the Grand Trunk railway and the Northern railway, of this year, and the further increase which may be anticipated for the future, it is confidently asserted that one hundred feet cannot be considered by any impartial person too wide an extent of land for the uses of two- railways, such as the Grand Trunk railway and the Northern. The Act of Incorporation of the Northern entitles them to take I !l i l| 50 I?.PA?A'?^T^'^^'^'"-'y^^'^^*"^^^t^ for their own purposes themin ?f ^"^^^^r/^^o'} of the Grand Trunk railway amforizes them to take ninety feet in width for their railwav Th. . actuated by motives adverse 'fo^he ^'^le'r of hTcredU Valley ra.lway, but required in the interesi of their stockholders! The judgment given by the learned judee who HpiM h,. cause, and which vas repotted at length in #1 Mai/ n^? 7^/ / of 8th of January, shows that the acfl of the Grand S nulway and Northern Railway was justified by their Xl right 5^ Grand Trunk Railway vs. Credit Valley Railway. Judgment of Vice Chancellor Proudfoot, after hearing the Cause and taking time to consider. The following is the Vice Chancellor's judgment m full : — The evidence that was supposed to be in existence when the motion for the injunction was made has been sought for, and the search has resulted in the discovery and proof of a large mass of documents, establishing the actual position of the Ordnance De- partment, the original owners of the land in question, in regard to the Northern Railway Company, and the action of the Depart- ment upon the application of the Company for the acquisition of the right of way. There is a volummous correspondence between the various officers of the Ordnance here and in Britain, references from one office to another, notes by the i)ersons to whom they were ad- dressed, minutes of the Board, matters brought under notice of the Secretary of War and of the Secretary for the Colonies, com- munications from the Inspector General of B'ortilications and from the Military Superintendent of Pensioners — all valuable as showing that the application of the railway company had received the fullest and most intelligent consideration, that the possi- ble effect upon the military defences, and the injury that might result to the just claims of the pensioners, had all been carefully weighed, and that the final action of the Department was based upon a perfect comprehension of the f;vcts, and with the deliberate intention of doing what appears in the correspondence. With these observations I shall not think it necessa'-/ to refer further to much of the correspondence, and shall only no- tice what appears to mc most material for the decision of the matters now at issu"! between the Companies. The nature of the suit and of the pleadings appears in the report upon the application for an injunction, and of the re hear- ing of the order made upon it, to be found a6 Gr., 573. The bill w St has, however, been amended since the hearing of the motion by stating the license relied upon by the Credit Valley Railway,and stating reasons why it should not affect the position of the plain- tiff; and by setting out in detail the particulars of the title under which the plaintiffs claim, through the dealings of the Ordnance Department, and under the statutes of the Province, I shall not repeat what was held by this Court upon the re- hearing of the motion, viz : — That the Northern Railway Com- pany are affected by the General Railway Act, and that the Company was authorized by the statutes to take Ordnance lands. On the 27th October, 1851, Mr. Boulton, the then President of the Ontario, Simcoe, and Huron Railway, now represented by the Northern Railway Company, applied by letter '* for certain portions of the Military Reserve in Toronto, which the Company require as well for a portion of their line, as for convenient sites for stations, workshops, and other appurtenances necessary for so important a work." And Mr, Boulton also stated that "the Com- pany propose on their part to offer to your honourable Board as a consideration for the accommodations sought, to transport in all time coming Ordnance and all other military stores along the whole line of road to Lalce Huron at the lowest rate at which the heaviest and most uulky articles will be carried, and Her Majesty's troops at the lowest rale which will be charged for any passengers." He then referred to the sections of the Company's charter auth- orizing the acquisition of the property, though belonging to the Crown or otherwise, and added a suggestion as to the obvious importance of the road in a military point of view. After much correspondence between different officers of the Ordnance Department and others, the Mastcr-Ccncral and Board of Ordnance authorized a letter to be written by the Sec- retary, Mr. Butler, on the 9th January, 1852, to Mr. Merivalefor the information of Earl Grey, which I (|uote at length as contain- ing the final conclusion of the Department : — War Office, 9th Jan., 1852 Sir, — I have the honour, by command of the Master-General and the Board of Ordnance, to acknowledge the receipt of your letter dated the 12th and 27th ult., relative to the a|)propriation of a part of the Ordnance Reserve at Toronto to the jjurposes of the Toronto, Simcoe, and Lake Huron Railroad Company, and I am to acquaint you, for Karl Grey's information, that reports on the sul)ject have also been received from the Inspector (leneral of Fortifications, the Commanding Royal Engineer in Canada, and the respective officers at Montreal. The Miister-Gencral and 53 Board have also availed themselves of the assistance of the Ord- nance Solicitor, and of Mr. Elliott, the Ordnance storekeeper at Montreal, now in this country serving on the Commissariat Com- mittee at the Treasury, and the Inspector-General of Fortifica- tions. The reserve reports of these parties are herewith trans- mitted, Nos. I, 2, and 3. It seems from these reports there is no doubt that under the provisions of the loth clause of the Act to incorporate theToron- to, Simcoe, and Lake Huron Railway the Company cannot be considered to have acted illegally in entering upon the reserve without previous consent, and that the Department can only insist upon compensation in the manner prescribed by the Company's Act, which will be to demand of the Company such a sum as may be considered the fair value of the land taken, and if refused to have the price fixed by the Chairman of the General Quarter Sessions and the Justices, as provided by the 17th section of the Railway Act, allowing whatever sum may be so recovered to be paid into the military chest to the public credit, and leaving it to Her Majesty's Government to decide what proportion of the money should be granted ;is compensation to the pensioners by Improvements upon the adjoining allocations, in which proposi- tion the Master General and Board request the acquiescence of the Secretary of State, and through his Lordship, of the Secretary of War. I have, &c., G. Butler. The report of the Ordnance Solicitor referred to in that letter is dated Dec 31, 1851, which I also quote at length : — [51 M 1,736 Received 31 S ] 5 1,01a Office of Ordnance, 31st December, 1851. Sir, — By the loth section of the Act to incorporate the Torotito, Simcoe and Lake Huron Railway, the Company are empowered to enter upon lands of the Queen's Majesty and all other persons , and to appropriate the same to the making a railroad, and the i6th and 17th sections prescribe the mode of ascertaining the value, if the parties disagree. By the 7th Vict., cap. 1 1, passed 9th Dec, 1843, (the Canada Vesting Art,) the 15th section provides that nothing in that Act shall prevent or restrain the Parliament of the Province from authorizing the construction of any canal or railway over lands set apart for military purposes. ■p as i 54 It appears to me that the only course to be taken is to de- mand of the Company such a sum as may be considered the fair value of the land taken, and if refused, to have the price fixed by the Chairman of the General Quarter Sessions and of the Justices, as provided by the 17th section of the Railway Act. I have read over the papers with Mr. Elliott, the Ordnance storekeeper at Montreal, now in England, serving on the Com- missariat Committee at the Treasury. He has made the minute which I enclose, in all of which I agree, excepting the recom- mendation in par. 6 — that the ordnance should at once take steps to restrain or eject the Company. On the pointing out to Mr. Elliott the clause in the Railway i».t, he agrees with me that his suggestion cannot be adopted. I am, Sir, Your obedient servant, Thomas Clarkf, Solicitor OrdnancCt 31st December, 185 1. Submit to the Master General : — The Board regret to have occasion to trouble his Lordship so frequently on this subject, but at the moment they were about to act upon his Minute of the 29th inst, (E. 1,813,) Mr. Meri- vale's letter dated the 27th (S. 168,) came to hand, the reference upon which to the Ordnance Solicitor has led to this report from him. The Board therefore propose to acquaint the Secretary of State (explaining the nature of their intended communication to him on the Master-General's Minute above mentioned,) with the purport of the Solicitor's report, and to request if it meet his (Lord Grey's) concurrence, that the Secretary of War may be ap- prised of the facts and suggestions submitted by Mr. Clarke and Mr. Elliott, so far as they agree, with a view of obtaining the acquiescence of both these authorities in the mode of proceeding, which appears to be the only alternative left. C F. The M.-G. concurs. C. P., Jan. 5th, 1852. C. 55 9th January, 1852. Ordered, that the communication contemplated by the fore- going Minute be now made to the Secretary of State. C. F. Wrote Mr. Merivale, 12th. A part of the report of Mr. Elliott, the Ordnance store- keeper in Montreal, then in England, has been preserved, in which he says : — " It seems to me a point of doubt whether, under the provisions of the loth clause (of the Company's Act), the Com- pany can be deemed to have acted illegally in entering upon the reserve without previous consent, but I apprehend the reserva- tion of Her Majesty's rights provided in the 52nd clause would enable the Ordnance, under the Vesting Act 7 Vic, c. 11, to re- strain or proceed against the Company for the trespass. If the Department have no such power, then it can only insist upon com- pensation in the manner presented by the Company's Act," and the part of the letter objected to by Mr. Clarke, the Solicitor, is this, "I think the better course would be for the Ordnance at once either to take the necessary steps for restraining or ejecting the Company if it be deemed advisable not to concede the ground," or, on the other hand, to claim compensation. From these papers it appears that the Board of Ordnance had adopted the opinion of their Solicitor, although it is stated as doubtful by Mr. Elliott that the Comp.iny were acting within the powers conferred upon them by this Act, and that all the De- partment could recjuire was compensation for the land taken. Before this decision had been arrived at, the respective offi- cers of the Ordnance in this Province became aware that the Company had taken possession of the land, and not only com- menced operations by grading, but persisted in proceeding with the work, notwithstanding repeated remonstrances from officers of the Department, and they instructed Mr. Kirkpatrick, their solicitor in Kingston, on Dec. 15, 185 1, to take immediate action to compel the Railway Company to desist from their trespass, and also asked his opinion as to the right of the parties to take such steps. On the 24th Dec, 185 1, Mr. Kirkpatrick gives his opinion upon the questions submitted to him, and expresses it to be "from a perusal of all the Acts, that the Ordnance land in (juestion is not exempted from the operation of any acts which may have passed the Provincial Legislature, authorizing the construction of railroads, provided the Companies take the necessary legal steps to procure the land or make compensation therefor." He also says that by their Act, in the first instance, the Company have only the right to enter upon and survey the lands and mark out .what is required for the work, * * * and the Company must agree with the owners, and in case of disagreement lodge the supposed value in the Court of Chancery before they can take possession of the lands for the purpose of making the railroad. On the 6th January, 1852, the respective officers at Montreal report to the Board of Ordnance the proceedings they had direct- ed to be taken and transmit copies of the correspondence, and trust the Master-General and Board will approve of the instruc- tions given to the Solicitor for the assertion of the Ordnance rights and for resisting to the utmost the encroachments of the Company. The Board of Ordnance, on the 2nd February, 1852, having before them Mr. Kirkpatrick's opinion and the letter of the re- spective officers of the 6th January, direct the respective officers to be informed that the Board approved of their proceedings, but to apprise them at the same time of the purport of the Board's communication of the 9th January to the Secretary of State in answer to a reference from His Lordship on this subject. This was accordingly done by a letter of 2nd February from the Secretary of the Board, and he encl»sed an extract from the letter of the 9th January. Meantime, on the 27th January, the respective officers at Montreal transmit copies of a further correspondence with Mr. Kirkpatrick, and as the Company had engaged to discontinue their operations until the arrangement was effected with the Ord- nance Department, all further proceedings were stayed for the present, and the respective officers were awaiting the decision of the Board up6n the Company's application. This was received by the Board on the loth February, and on the i8th it was read and the respective officers were referred to the Board's communi- cation of the 2nd February. The Board has thus twice confirmed its action of the 9th of January, after becoming aware of the proceedings taken to assert the rights oi the Depprtment and to restrain Vfha.t was considered the high-hanued proceeding of the Company in taking possession, without permission, of the land for the road. They had before them the opinion of Mr. Kirkpatrick, that until compensation was made the Com- pany had no right to appropriate the land, but they do not think proper to interrupt the progress of the work until the amount be ascertained and paid. They, indeed, approve of the course of the respective officers in taking proceedings to assert the rights of the Departigent, but refer them to their UI OJ D( tic m letter of the 9th of January. This approval, so far from im- plying a direction to the respective officers to prosecute such proceedings, as it has been argued, when coupled with that significant but, seems to me to amount to an approval of what had been done before a decision had been arrived at — now that the decision had been made, they should cease. The only further record, I think, in regard to the com- pensation is an extract from the Treasury Minute of the 17th Dec, 1852. "And lastly they should take immediate steps (to recover) from the Toronto, Simcoe, and Lake Huron Railway Company the value of the 34 acres of the reserve, with the buildings upon it, which the Company appropriated under their Local Act." This was sent to the Board of Ordnance by the Secretary to the Treasury on the 20th of Dec, 1852. But there is no evidence to show that any ac- tion was taken upon it. To this further period it seems then that the only claim the Board considered they had was one for compensation. It is said the Board were acting under a mistake of the law — that the Company could acquire no right, and did not acquire any, because the payment of the compensation was a condition precedent to acquiring it — and that the Acts of Parliament did not authorize the taking of Ordnance lands at all. This latter point scarcely seems open for my considera- tion since the opinions given on the rehearing of the motion. Were it still open, I see nothing to induce me to alter the view I took when the motion was before me, and which co- incides with that held by the Solicitor of the Ordnance, by Mr. Kirkpatrick, and by this Court on the rehearing. In regard to the former, that payment was a condition precedent, I think I may assume for the purposes of this case that Johnson v. The O. S. & Huron Railroad Co., 11 B. R. 246, correctly states the law as to the powers of this Railroad Company, and that an owner of an estate might prevent the Company from taking possession until compen- sation was made — although if an occasion should call for it, it may be found necessary to consider what effect the Gen- eral Railway Act, to which this Company was also subject, may have upon it — a subject not noticed in that case, nor in the opinion given by Mr. Kirkpatrick. But the Board had the conflicting opinions of Mr. Clarke and Mr. Kirkpatrick and the d«)ubt of^ Mr. Elliott before them wlien they came to the decision of the 2nd of February. They, must, there- fore, have known that it was at least doubtful if the Com- ^ pany had the right they were asserting, yet they deliberate- ly adopt the view that the Company could enforce this right, and leave them only the subject of compensation to deal with. Now, a condition precedent is not an iron rule form- ing an insuperable obstacle not only to the action of one, but of both parties to a transaction. When found in a con- tract it can be waived, modified, or treated as non-existent, by the person in whose favor it is inserted. And when found in a statute it is inserted for the benefit of those affect- ed by the enactment, and they may equally abandon its protection. It is an elementary rule that Aliquis potest renunciare juri pro se introducto, or as it is otherwise ex- pressed Liceat sui juris persecutionem, aut spent futuroe per- ceptionis, dfiKriorem constituere, Dig. 2, 14, 46, or Omnes li- £entiam habere, Us quce pro se introducta sunt, renuntiare, Cad. 2, 3, 29. The rule that private persons may not agree to anything derogatory to the public interest — Privatorutn con- ventio juri publico non derogat, D. 50, 17, 45-1, has no appli- cation here, for two reasons : — Because one of the parties was a public body, having the care of the public interest, and because it was after considering the interest of the pub- lic, and being satisfied it would not be prejudiced, that the resolution was adopted. In so far as the right to the money was concerned, there was no act of the Board of Ordnance derogatory from the right of the public to recover it ; if not paid, a lien from it remained, and if it has been abandoned it rests upon the action of a body whose acts I have no right to call in question, the Parliameat of the Province. The Company proceeded with the work in the spring of 1852. The evidence is not very clear as to whether the Company then had a copy of the letters of the 9th of January and 2nd February. The Company's offices were destroyed by fire and their papers burnt, but Mr. Cumberland says he believes there was among them a letter from the Ordnance Board of the 9th of January or 2nd February ; recollects a paper of the Master-General to the -effect of the order of the I')oard of Ordnance. They are quite familiar to him. They were in the custody of Sladden the Secretary. It was always regarded as an express assent of the Ordnance to the proceedings of the Company. Taking that in connection with the agreement of the Company not to proceed with the work till the decision of the Board was arrived at, and which would naturally be presumed to be communicated to the Company, I have no difficulty in determining, as a matter of fact, that the letters of the 9th January and 2nd February, or the purport of them, were in the possession of the Company in the spring of 1852, and that the work was prosecuted under that sanction. During the progress of the work it was frequently 59 inspected by officers of the Ordnance Department in their official capacity. They were witnesses to the fencing it up from the rest of the Ordnance property, to the expenditure of large sums of money in the construction of the road, and I must assume that they performed their duty in keeping the Department informed of what was being done on their property — though it is scarcely necessary to assume it, as the Board knew what the Company wanted — that they only stayed work until the decision of the Board should be made, and when that was made that the work would be resumed and prosecuted. Before this the action of the Company was resisted ; after it all opposition was withdrawn, and the Company was allowed to go on and perfect their work in peace. That being so, I apprehend the Board would not be per- mitted to prevent the occupation of the land by the Company ; that they would be restrained from doing more than realize their lien. I now proceed to consider the Act 19 Vic, e. 45, transfer- ring the reserve at Toronto to the province. The 6th sec. enacts that the lands in the reserved schedule, which had been vested in the principal offjcers of Her Majesty's Ordnance, and which had been used or occupied for the service of the Ordnance De- partment, or for military defence, shall be and become absolutely in Her Majesty the Queen for the benefit, use and purposes of the Province, * ■* * * but subject, nevertheless, to all sales, agreements, lease or leases, already entered into with or by the principal officers, and the 7th section that the Act should affect the rights of any parties claiming any of these lands. The Act was assented to on the 19th June, 1856. On the 5th Novem- ber following a schedule was prepared by Mr. VValkem and Mr. Pilkington, and sent to the Inspector-General of Fortifications on the 1 5th November, showing more distinctly than the schedule to the statute, the several properties transferred to the Provincial Government. This schedule states that the Ontario, Simcoe, and Huron, or Northern Railway, had been permitted to occupy a portion of the reserve, but that no deed had been executed to them. And on the 5th December, 1856, in reply to enquiries of Colonel Coffin, the Ordnance I^nd Agent of the Provincial Gov- ernment, Captain Gahvay, of the Royal Engineers Department, informs him that the Ontario, Simcoe, and Huron Company took possession under authority of their charter, 12 Vic c. 196, and the legality of the proceeding was recognized by the Master-Gen- eral and Board order of 2nd of February, 1852. These documents are only a repetition of what has already been established, but are valuable as a re':ognition of the right of the Company down to that period, and a notice of it given to the Provincial Govern- ment. And it seems to me of little importance what Captain Galway'« powers were, for without any authority to do so he could ^ i have notified the Government of the existence of the right, which is established by other evidence, and if this were done in answer to an appHcation by the agent of the Government, they could not complain of his having no authority to give them the information they sought. I think that the Northern Railway Company had an equitable right, at least, under their dealings with the Board of Ordnance, and that the Government took the land subject to that right. I have not forgotten the argument resting upon the 7 Vic, c. II, s. 15, that the power of the Parliament to authorize the construction of railroads upon any lands which may have been reserved or set apart for military purposes applied only ta such reserved lands, and that it was not proved that these lands were so reserved. But the evidence does seem to me to establish that they were reserved, not purchased. The title is deduced on the map prepared by Mr. Fleming — t^e very name of the "Garrison Reserve" indicates it — the action of the Board of Ordnance re- cognizes it — and during the whole course of the correspondence on the subject there is no hint, no suggestion, of any doubt that the lands were such as the Parliament could deal with. By the Act of 1859, 22 Vic, c 89, the road and line of the Northern Railway Company were vested in the Crown ; and by the Act of i860, 23 Vic, c 105, the whole was re-vested in the Compar.y, upon conditions which have been complied with or waived. By a clause in the Order-in-Council recited in this Act, the Governor-in-Council reserved the complete control and direc- tion of the station and other ground in the City of Toronto occu- pied by the Company, as well as of the alignment and disposition of the track of the railway leading into and within the city, with the view of completing such arrangements as may be deemed ex- pedient by the (Government for effecting proper connections with the other Provincial railways in the City. It appears that for some years proceedings had been pending before the Railway Commissioners on the application of the officers of the several railways coming into the City, with a view of enabling the Grand Trunk Railway to connect the eastern and western sections of their road, and of definitely settling the allowance of the three railroads passing into and through the City. These resulted in a report of the Commissioners to the Governor-in-Council in 1858, in which they recommended that the Grand Trunk Railway should make all the necessary arrangements with the two other roads, without charge to the Government, for a more convenient approach to the City, &c., and that so much of the Garrison Re- serve as was then occupied by the three roads should be sur- rendered to the Governnient for the purposes there indicated. The Companies had not yet acted upon this. The Grand Trunk Railway was straitened for means, and could not then conveni- 61 ently cariy out the arrangement. Knowing these facts, the cir- cumstances existing when the Act was passed, it is probable that the reservation in the Order-in-Council was intended to apply to the existing roads, to enable the pending arrangements for the location of the lines to be finally adjusted. The language seems to refer to existing roads, and betrays no design to embrace future undertakings. Whether it is permissible to have regard to these circumstances in limiting the operation of the Act, when the In- corporation Act (31 Vic, c I, s. 6., s. s. 2) says that the law is to be considered as always speaking, and whenever anything is ex- pressed in the present tense, the same is to be applied to the cir- cumstances as they arise, I shall not stop to enquire, as the Act was repealed in 1875, as we shall immediately find. Within a month after the passing of this Act the three railway companies agreed to carry out the recommendations of the Commissioners, with some modifications ; the work was placed under contract, and completed at a cost of about $70,000. This contract is de- scribed by the witnesses as being the outcome of what took place before the Commissioners — though all that was recommended in their report was not carried out. It was contended that the action of the Commissioners was in excess of theii powers — that they only had authority to deal with crossings. I am not pre- pared at present to assent to this limitation of their powers, but it is not necessary to decide the general question, for I think that to deal properly with crossings in a complicated network of rail- ways entering a populous city the proper location of crossings may, and in this instance did, involve the alignment of the roads within the City, and that it was within the powers of the Com- missioners. A perusal of the proceedings before the Commis- sioners satisfies me that the chief matter before them was that of the crossings, and that anything further was dealt with as incidental to that subject. The Commissioners recognized the right of the Northern Railway Company to their location on the Reserve, and in recommending that it be surrendered, implied that they had the estate to surrender, and the statute of i860, by reserving a right in the property revested in the Company, implies that everything not reserved is granted. From i860 till the present time, the arrangements then made have been carried out, the Government has never sought to interfere with them, the Railway Company have been publicly using and enjoying the rights then acquired, and if any assent of the Government were required to render them unassailable, that assent ought to be implied. Wel- land V. Buffalo, 31 B. R., 539, is an authority for this. It is said, however, that though the Government may be bound not to disturb the Grand Trunk Railway Company in the use of the 27 feet assigned to them by the arrangements of i860, there was still land enough left upon which again to exercise this re- 612 served power in favour of the Credit Valley Railway Company. But the Order in Council was repealed by the Act of 1875, four years before the license to the Credit Valley Railway Company. This Act, it is argued, being a private Act, could not affect the rights of the Crown. The right of the Crown in this instance was created by an Order-in-Council, confirmed by an Act of Par- liament (i860), and the same power that had the authority to confer the right had the power to put an end to it. It can be done either by a public or a private statute, and where a pre- rogative of the Crown is concerned, it may be affected, not only by the express words of the Act, but by necessary implication. And, assuming the exercise of this authority to be a prerogative, or in the nature of a prerogative, it could only be extinguished by express language or by necessary implication. There appears to me to be that necessary implication here. The authority was re- served to the Govemor-in-Council by an Order-in-Council. When the Parliament repealed the Order-in-Council, what stronger in- dication of intention could there be that this power should no longer be exercised. Sir Peter Maxwell (Interp., of Stat, ii6) says : — " The Crown, however, is sufficiently named in a statute within the meaning of the maxim, when an intention to exclude it is manifest." edi p£ dat par mai Aci liei 1851 benl partf benl Pro pasi The rule commented on by Sir Peter Maxwell is " that the Crown is not bound by a statute unless named in it." The In- terp. Act, 31 Vic, c. I, s. 7, s. s. 33, says that no provision in any Act shall affect in any manner the rights of Her Majesty, un- less it is expressly stated therein that Her Majesty shall be bound thereby. The rule is more specific than the law, for it says flamed; but to take a case out of the rule n^ essary implication suffices, and so it should to take it out of the law. Webster^ under the verb "to express," explains it to mean to utter, to de- clare in words, to speak, and also to show or make known, to indicate — a downcast eye or look may express humility, shame or guilt. Whence it would seem that if the intention may be in- ferred from the terms used, the language of the Act would be complied with, or as it has been stated, "expressum dicitur, quod conjecturis colligitur," and "illud est expressum quod continetur mente legis, quod evidentibus signis colligitur." The only distinction between public Acts and local or per- sonal enactments, applicable to this subject, seems to be that the latter are to be construed more strictly when they confer privi- leges and powers interfering with the property or rights of others. Maxwell, 268. But where the intention of the Legislature is clear it does not matter whether it be expressed in a public or private Act. 88 In 1875 the lien of the Government upon the road amount- ed to nearly ;^6oo,ooo sterling, and by the Act of 1875, c 65, passed to re-arrange the capital of the Company, and to consoli- date the various Acts relating to it, the undertaking of the Com- pany is declared (s. 26) to consist, among other things, of "its main line of railway as the same now exists." And by another Act of the same session, c. 23, the Government compromised its lien for ^^i 00,000 sterling, which has since been paid. When the Ordnance property was transferred by the Act of 1856, subject to any agreements, &c., that phrase was for the benefit of the persons who had agreed with the Ordnance De- partment. It did not mean to reserve to that Department the benefit of the agreements ; that benefit was transferred to the Province, and therefore any lien for purchase money that existed passed to the Province. When, therefore, in the Act of 1875, c. 23, it was recited that the lien of the Dominion on the railway and property of the Northern Railway Company amounted to the sum of ;^57o,ooo, that must be taken to include all the claims of the Dominion in whatever manner they might have accrued, and to have been settled by the compromise. It would be impossible to hold that any lien was retained — it would have been a breach of faith with the creditors of the Company, and there is no difficulty in sup- posing that when parting with ;^47o,ooo, they would hesitate to extinguish the comparatively trifling sum representing the value of the 34 acres of this reserve nearly thirty years ago. I conclude, therefore, that the Northern Railway Company^ under the dealings with the Board of Ordnance, and under the various statutory enactments noted above, acquired a title, free from any lien for purchase money, to the 34 acres of the reserve taken by them. The estate that a railway company takes in the land required for its road is not of the absolute untrammelled nature of the fee simple of a private individual, it is obtained for a particular pur- pose ; and while that purpose is served, it will not be permitted to assert rights that a private owner might ; and that is the effect of the decisions to which I was referred ; of Bostock v. North Staffordshire Railway Co. (5 DeG. & S, 584, 3 L. & G. 291, 4 E. & B., 798,) United Land Co. v. Great Eastern Railway Co., L. R., (17 Eg., 158, 10 Chy., 589,) Norton re London and North Western Railway Co. (9 Ch. D., 623,) MuUinerv. Midland Rail- way Co. (ii Ch. D., 6ii.) But there is nothing in these cases to establish that another railway company, on account of this peculiar (quality of the title, may treat it as if no title existed, and take possession for its own purposes of the location of the line, M with no better right than that of the strong hand. By their charter the Northern Railway Company had a right to take 120 feet in width. They only took 99. And under the General Railway Act other railway companies were empowered to use the line ii' before 30th June, 1858, without, and if after with, the assent of a department of the Government. And if that could be done contrary to the wish of the owner of the line, it certainly might be done by the agreement of the parties. The Judge has expressed his opinion to this effect in the judgment upon the rehearing, to which I then assented, and now assent. Such an agreement is wanting in the characteristics of an ordinary aliena- tion or abandonment, because it was not needed for railway pur- poses. The first agreement between these Companies was as early as 1856 or 1857. It had expired before the 8th January, 1858, and on that day a new agreement was made for the use of the track of the Northern Railway Company by the Grand Trunk Railway Company for a part of the distance, and for laying a separate track for the remainder, to continue for a year, but in view of a permanent location of the Grand Trunk Railway tracks in the rear line laid down on a plan exhibited by Mr, Fleming. The permanent location was not made, I think, till i860, but ought to be treated as made in pursuance of this agreement of January, 1858, and therefore not requiring the assent of ihe Gov- ernment. If it is to be considered as made !ater than June, 1858, then under the circumstances already detailed, and upon the principles enunciated in Welland v. Buffalo, 31, B. R., the assent of the Government ought to be presumed, and especially considering the long time that the user under the agreement has been permitted without interruption, and its recognition in various ways by the Government. But this answer of the Credit Valley Railway is not an information for intrusion at the suit of the Crown — the Crown has taken no steps to have the right declared forfeited for abandonment or alienation — the license to the Credit Valley Railway was made under an Order in Council c\i)ressly reserving the rights of the other companies, and it is not com- petent for the Credit Valley Railway to intervene and claim a forfeiture. Besides, if the alienation or agreement between the Grand Trunk Railway and the Northern Railway was an improp- er use of the right of ownership, the result would not necessarily be forfeiture ; it might have the effect of depriving the Grand Trunk Railway of the use of the line and restoie the Northern Railway to their old dominion. In that case it would not benefit the Credit Valley Railway ; but it would be imjiossible for the Crown, alter all that has occurred, to treat the permission to the Grand I'runk as a thing that ought not to have been granted. It would be barred by its acquiescence, by its recog- nition of the existence of the actual condition of the compan- 66 ies, and by its endeavour to secure a proper connection over this -99 feet for the sections of the Grand Trunk. And further, the Northern Railway Company are parties to the suit, and pray for the same relief as the Plaintiffs. Indeed, I do not see why they may not be treated as Plaintiffs ; they have throughout contested the right of the Credit Valley Rail- way, and all the evidence affecting the questions now attainable having been given, there can be no injustice done in treating them as Plaintiffs, in administering relief as between co-defendants. The Northern Railway Company do not contest the right of the plaintiffs, they admit it, and seek its enforcement, as well as the enforcement of their own. I think the plaintiffs entitled to a decree restraining the Credit Valley Railway, &c., from trespassing on the lands ta question, and to a declaration that no title passed to them under the license of occupation, and to an enquiry as to the damages sustained by the trespass with costs. Il on p fee, Tav< also and and agree Railv agree settle by an pared partie Act a AN A tl y c ai W day of hundrc Trunk Conij)a the sett and ohi respect thereof, 67 APPENDIX. The Grand Trunk Railway, after the transactions mentioned on page 3 1 and preceding pages, bough t and obtained a deed in fee, from the grantees of Dr. Rees', the land on which the Betz Tavern stood, on the Corner of Esplanade and Simcoe Streets, also the property spoken of as the Rees Lots, on Simcoe Street, and the lands north of this up to Front Street. In the meantime, questions having been raised by the City and Great Western Railway Company as to the validity of the agreement between the City of Toronto and the Grand Trunk Railway Company respecting the Esplanade right of way, an agreem'^nt was entered into between the parties for the final settlement of all these disputes, and this agreement was confirmed by an Act of Parliament. The agreement and the Act were pre- pared by the present Mr. Justice Cameron, at the request of all parties ; the agreement is given as a schedule to the Act, and the Act and agreement are as follows : — CAP. XXXIV. AN ACT to legalize and confirm an agreement made between the Grand Trunk Railway Company of Canada, the Great Western Railway Company and the Northern Railway Company of Canada, relating to the Toronto Esplanade, and for other purposes therein mentioned. [Assented to tSth Match, 1863?^ WHEREAS an agreement, bearing date the twenty-second day of December, in the year of our Lord one thousand eight hundred and sixty-four, has been made between the Grand Trunk Railway Company of Canada, the (ireat Western Railway Company and the Northern Railway Company of Canada, for the settlement of differences, and to define the rights, privileges and obligations of the several Companies towards each other in resj)cct to the Esplanatlc in the City of Toronto, and the use thereof, and for other purposes therein set forth, which said ■^ 68 agreement is set out in the schedule to this Act ; and whereas the said Companies have petitioned that the said agreement may be confirmed, and it is expedient to grant the prayer of the said petition : Therefore, Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows : 1. The said agreement, bearing date the twenty-second day of December, in the year of our Lord one thousand eight hun- dred and sixty-four, and which forms the schedule to this Act, is hereby confirmed, and all and singular the provisions, stipu- lations, covenants and agreements, and other matters and things in the said agreement contained, shall be valid and binding upon the said several Railway Companies according to the tenor and effect of the said agreement. 2. Esplanade Street shall be deemed a public highway, and it shall and may be lawful for the Corporation of the City of Toronto, to grant to the said several Railway Companies, a right of way over, upon and along twelve feet six inches of the south part thereof for railway purposes, as in the fifth clause of the said agreement provided ; and the said right of way of twelve feet six inches, and of the twelve feet six inches off the north part of the south forty feet of said Esplanade, shall be thereafter used and enjoyed by the said Railway Companies for railway purposes as in the said agreement mentioned. 3. It shall and may be lawful for the said Railway Companies to exercise, have and enjoy, in and upon the Toronto Esplanade, all and singular the rights, easements, privileges and powers in the saiAagreement mentioned ; but the south twenty-seven feet six inches of the said south forty feet of said Esplanade shall, for railway purposes, be exclusively used and enjoyed by the said Grand Trunk Railway Company, as in the said agreement men- tioned ; provided that nothing in this Act or in the said agree- ment contained, shall be understood or construed to grant or convey to the said Railway Companies or any of them, an estate in fee in the said Esplanade or any part thereof. 4. It shall, from time to time, as the same may be required for public use, be the duty of the said Railway Companies, at th< > own expense as hereinafter specified, so to construct the spa. :s between the rails and between the tracks, and all the spaces on and over the southerly fifty-two feet six inches — (the Grand Trunk Railway Company as to the south twenty-seven feet six inches, and the said three Companies as to the twenty-five feet north thereof) — as shall be proper and suffuicnt for crossing the said rails and tracks at any point, and shall so construct the fiame as to the level at which the same shall be, relatively to the sal as' nel po tht Te\ Tol I 69 said rails and otherwise, and as to the materials to be used, such as ballast, broken stone, paving or planking, and as to the man- ner in which the same shall be so constructed, as the said Cor- poration of the City of Toronto shall approve, and shall always thereafter keep and maintain the same in an efficient state of repair upon notice from the said Corporation of the City of Toronto. 5. The said companies shall not, nor shall either of them leave standing upon the said tracks or upon the switches, or upon the said twenty-five feet, any trains, cars, engines, materials, ap- pliances, stock, freight, goods, or other things, other than those cars, engines and trains required for the purposes of their trade with the City of Toronto in loading or discharging freight and for passenger traffic, nor for any longer time nor more frequently nor otherwise than shall be necessary for such purposes, nor shall they discharge or unload their cars on any street crossing. 6. In the event of differences arising at any time between the Corporation of the City of Toronto and the said Railway Companies as to the loading, unloading, or discharging of freight, or the alleged inconvenience of the places where the same is con- ducted, or the times and manner of doing so, or any other ob- structions arising out of any of the matters or causes in the last preceding section mentioned, the same shall be settled by refer- ence to the Railway Inspector appointed or to be appointed by the Railway Commissioners. 7. It shall not be lawful for any or either of the said Rail- way Companies to run their engines or trains over or along said Esplanade at a greater rate of speed than four miles an hour, unless permitted so to do by by-law of the said Corporation of the City of Toronto, but in no case to exceed the rate of six miles an hour. 8. Incase the Corporation of the City of Toronto shall refuse to grant the said twelve feet six inches of the south part of Esplanade Street to the said Railway Companies, the agreement in the schedule to this Act and tliis Act shall become inopera- tive, and the said Corporation of the City of Toronto and the said Railway Companies shall severally be remitted to the posi- tion in which they severally were before the making of the said agreement first hereinbefore mentioned, notwithstanding any- thing in the said agreement or in this Act contained. 9. This Act shaM be a public Act. — F i 70 SCHEDULE TO THE FOREGOING ACT. ARTICLES of agreement had, made, entered into, and fully agreed upon, the twenty-second day of December, in the year of our Lord one thousand eight hundred and sixty-four, by and be- tween the Grand Trunk Railway Company of Canada of the first part, the Great Western Railway Company of the second part, and the Northern Railway Company of Canada, of the third part : WHEREAS differences have arisen between the said Rail- way Companies parties hereto as to their respective rights upon the Esplanade, in the City of Toronto : — For the settlement of these differences and clearly to define the rights, privileges and obligations of the said several Companies towards each other in respect to the said Esplanade, and the use thereof, they have mutually and respectively agreed to bei ome parties to these pres- ents, and to be bound by the covenants, provisions and stipula- tions, hereinafter contained. Firstly. It is hereby declared and agreed by and between the several companies, parties hereto, that it shall and may be lawful for the said Northern Railway Company, and their successors, and they are hereby fully authorized and empowered at any time when judged expedient by the said Company so to do, to lay down, construct, maintain and keep on the north twelve feet six inches of the south forty feet of the said Esplanade, a track or tracks ex- tending from their present railway station easterly to a point a short distance west of the lot known as Dr. Rees' lot, being the point where the main line of the Grand Trunk Railway now crosses Esplanade Street, near Rees' Wharf and at the said point to join and connect with the said Grand Trunk main line, and to run the trains, locomotives, and cars of any description of the said North- em Railway Company, on and over the said Grand Trunk main line, from the said point of intersection to York Street, subject, nevertheless, to the provisions contained in clauses eight and nine of this agreement ; and until such track shall be laii and constructed, it shall and may be lawful for, and the said Northern Railway Company are hereby expressly declared to have the right, easement, privilege and power to use one of the tracks of the said Grand Trunk Railway now laid from Brock to York street afore- said, for the running of trains, cars and locomotives, and to con- nect at Brock Street aforesaid with the said (irand Trunk line by means of the necessary switch for that purpose. Secondly. It is hereby further declared and agreed by and between the said several Railway Companies, parties hereto, that it shall and may be lawful, from time to time, and at all times hereafter, for the said Great Western Railway Company, and they ar po C( St sci ale sai the 71 are hereby declared to have the right, easement, privilege and power to jdin and connect with the said Grand Trunk Railway Company's main line by means of a switch at a point near Peter Street, and to run the trains, locomotives and cars of any de- scription of the said Great Western Railway Company, on and along the said Grand Trunk line from the point of junction afore- said, easterly to York Street aforesaid ; subject, nevertheless, to the provisions contained in the eighth and ninth clauses of this agreement. Thirdly. It is hereby further declared and agreed by and between the said several Railway Companies, parties hereto, that it shall be the duty of the said Grand Trunk Railway Company, with all reasonable speed, and on or before the fifteenth day of May, in the year of our Lord one thousand eight hundred and sixty-five, if the Act for legalizing and confirming the agreement hereinafter mentioned be passed during the next ensuing Session of Parliament, to make, build and lay a railway track of the proper gauge, and in a substantial and workmanlike manner on the north twelve feet six inches of the said south forty feet of the said Ev planade, extending easterly to the end of the said Esplanade from the point at York Street, where the privilege of running over the said line of the Grand Trunk Railway granted to the said North- em Railway Company and the said Great Western Railway under clauses one and two of this agreement terminates, and it shall and may be lawful for the said several railway companies, parties hereto, to use and enjoy the said track so constnicted, in com- mon, for the traffic and running purposes of the said several rail- ways ; Provided always, that it shall not be lawful for the said Grand Trunk Railway Company to use the said track in any manner for the through traffic purposes of that Company. Fourthly. It is hereby further declared and agreed by and between the said several railway companies, parties hereto, that the south twenty-seven feet six inches of the said south forty feet of the said Esplanade, shall for railway purposes be vested in and exclusively used and enjoyed by the said Grand Trunk Railway Company. Fifthly. It is hereby further agreed by and between the said several companies, parties hereto, that application shall be made on behalf of said companies to the Corporation of the City of To- ronto, to grant to the several railway companies, parties hereto, and their respective successors, twelve feet six inches in width of the south part of Esplanade Street, adjoining the northern limit of the said south forty feet of the Esplanade along the whole length of said Esplanade Street, for railway purposes ; and the said piece of land so granted shall be vested m the said several .:jt! i 72 railway companies in common, to be used for sidings for loading and unloading freight, and purposes necessarily incidental there- to; such sidings to be completed on or before the fifteenth day of May, in the year of our Lord one thousand eight hundred and sixty-five. Sixthly. And it is hereby further declared and agreed by and between the said several railway companies, parties hereto, that application on their behalf shall be made to the Parliament of this Province for an Act to legalize and confirm this agreement and the provisions therein contained, and to vest in the said several railway companies in common for railway purposes the said two strips of land of twelve feet six inches each, being the north twelve feet six inches of the said south forty feet of the said Esplanade, and the south twelve feet six inches of the Esplanade Street, together making a strip of land twenty-five feet in width along the whole length of the said Esplanade easterly from York Street, subject nevertheless to the respective rights of the said several railway companies as herein declared in relation to each other ; and the manner of working the several trains of the said companies upon the said tracks on the twenty-five feet to be used common, easterly from York Street to the end of the Espla- nade, shall be mutually agreed upon between f'^ ^ said com- panies, and failing such agreement shall be ' :^ by arbitra- tion in the manner provided for in clause twelve of this agree- ment ; and that upon the said Act being obtained, the grant by the City of Toronto of twenty-five feet of land along said Espla- nade to the Great Western Railway Company and the Northern Railway Company shall become and be null and void ; provided always, that nothing contained in clauses four, five, and six of this agreement shall be held or taken in any way to interfere with the rights of the public as now existing, to cross for the purposes of ordinary traffic the fifty-two feet six inches used for making tracks, nor to prevent the said Railway Companies in the same manner as and as part of the general public crossing the same, but not 'ling herein contained shall authorize the crossing the same by means of railway tracks or rails. Seventhly. It is hereby further declared and agreed by and between the said several Railway Companies, parties hereto, that upon, from and after the passing of the said Act, all claim and right whatsoever which the Grand Trunk Railway Company may have, or pretend to have, to any right of way or casement or privilege upon or through the grounds of the said Northern Rail- way Company, as now enclosed between Brock Street and Bath- urst Street, shall cease, determine, and be wholly void. Eighthly. It is hereby further declared and agreed between the said several Railway Companies, parties hereto, that from the |l 73 points where the Northern Railway and Great Western Railway respectively join the Grand Trunk line to York Street, the use of the said Grand Trunk line shall be in accordance with, and un- der the running regulations of the Grand Trunk Railway Com- pany, and trains shall have precedence or rights in the following order : — I St. Grand Trunk passenger trains. 2nd. Passenger trains of the uaid other Companies. 3rd. Freight trains of the Grand Trunk. 4th. Freight trains of the said other Companies. 5th. Special and irregular, and other trains to be run in the same order, Grand Trunk first, and the trains of the same class or denomination as the Grand Trunk, of the other Com- panies, next in order. Ninthly. It is hereby further declared and agreed by and between the said Railway Companies, parties hereto, that the switches and signals used in getting on and off the Grand Trunk line, when the said line is used by the said other Companies as well as at other times, shall be under the sole control and man- agement of the Grand Trunk Railway Company, and the servants thereof Tenthly. It is hereby further declared and agreed by and between the said Railway Companies, parties hereto, that the line of sidings to be laid and constructed on the said twelve feet six inches of the south part of Esplanade Street, as mentioned in the 5th clause of this agreement, shall be divided among the said several Railway Companies in the manner to be hereafter mutual- ly arranged between said Companies, or in case of disagreement, by arbitration as hereinafter provided. Eleventhly. It is hereby further declared and agreed by and between the said Railway Companies, parties hereto, that if the Act for the legalizing and confirming of this agreement is passed during the next ensuing Session of Parliament, the present track used by the Great Western Railway Company from Peter Street to the Esplanade, shall be discontinued and removed by the fifteenth day of May in the year of our Lord one thousand eight hundred and sixty-five. Twelfthly. It is hereby further declared and agreed by and between the said Railway Companies, parties hereto, that the payments or compensation to be made by the said Companies respectively to the others or other of them for the facilities here- in provided and exchanged between them respectively in relation to the use of the lines and sidings as set forth in this agreement ry* 74 shall, in case the same cannot be mutually agreed upon within three months from the passing of the said Act, be settled and de- termined by the President of the Pennsylvania Central Railroad Company for the time being, and in the event of his refusing to act in the settlement thereof, then such payment or compensation shall be settled and determined by some other person to be mu- tually agreed upon by the said Companies respectively, and if the said Companies cannot agree upon such arbitrator, then upon application of any of the parties hereto, it shall be lawful for any one of the Judges of the Supreme Court at Toronto to nominate and appoint an arbitrator to determine such compensation : pro- vided always, that any award to be made by the arbitrator under this agreement, so far as the same shall determine any charge (not being a payment for past capital expenditure) to be paid by any of the said companies to the others or other, shall be open to reconsideration and redetermination at the expiration of five years, and at the expiration of every succeeding five years, the arbitrator to be mutually agreed upon or appointed by Judge as hereinbefore determined. Thirteenthly. It is hereby further declared and agreed by and between the said several railway companies, parties hereto, that all legal proceedings at law or in equity now pending be- tween the said Companies or any of them, in relation to the said Esplanade, or the rights of the said Companies or any of them, to lay down tracks upon, or otherwise use the said Esplanade or any part thereof, or in any manner relating to the matters in this agreement provided for, shall for the present be suspended, and upon the passing of the said Act, shall be absolutely abandoned; and in case the said Act shall not be obtained, all such legal proceed- ings whether at Law or in Equity, shall or may be taken up and continued, as if this agreement had never been made ; provivled always, that the party who had to take tlie next step on the twenty-second day of December, in the year of our Lord one thousand eight hundred and sixty-four, shall have two weeks next after the end of the session of Parliament in v/hich the said Act shall be rejected, to take such step. Fourteenthly. It is hereby further declared and agreed by and between the said several railway companies, parties hereto, that it shall and may be lawful for the said Great Western Rail- way Company to make the connection of their line with the Grand Trunk line at Peter Street at once ; provided always, that their present line shall remain as it is until the said Act is ob- tained, or if the said Act be obtained before the fifteenth day of May, one thousand eight hundred and sixty-five, then until the said fifteenth day of May, one thousand eight hundred and sixty- five. Ill 75 Fifteenthly, It is hereby further declared and agreed by and between the said several Railway Companies, parties hereto, that it shall and may be lawful for the said Great Western Railway Company, and the said Northern Railway Company to use in common with the Grand Trunk Railway Company, the present sidings of the said Grand Trunk Railway Company on the said Esplanade, east of York Street, until the arrangements by this agreement provided for, are carried into effect, or until the said Act shall be rejected. Sixteenthly. It is hereby further declared and agreed by and between the said several Railway Companies, parties hereto, that each of the said Companies shall and will use every exertion and all fair and legitimate means to procure and obtain the passing of the said Act by the Parliament of this Province to legalize and carry into effect this agreem ^d that they shall and will bear the expenses of obtaining ''' Act or of the attempt so to do, and all necessary proceedings .^nected therewith and with this agreement, in equal proportions. The said Grand Trunk Railway Company hereby covenants to and with the said Great Western Railway Company and the said Northern Railway Company respectively, that the said Grand Trunk Railway Company shall and will from time to time and at all times hereafter well and truly observe, perform, fulfil and keep all and every the stipulations and agreements hereinbefore contained, and which on the part and behalf of the said Grand Trunk Railway Company according to the tenor and effect, true intent and meaning of this agreement ought to be observed, per- formed, fulfilled and kept ; and shall not, nor will wilfully or imprc perly hinder or prevent the said Great Western Railway Company and the said Northern Railway Company, or either of them, in due and proper use and exercise in accordance with this agreement, of any cf the lines, switches, sidings or rights, easements or privileges to which they or either of them are by this agreement entitled, or to which they or either of them shall by the said Act become entitled, and shall and will at all times hereafter do all things necessary on their part to enable the said other Companies to use the said portion of the said Grand Trunk line on which, by the terms of this agreement the said other Companies have the right to run their trains, locomotives, and cars in the manner hereinbefore in that behalf provided, according to the tenor and effect, true intent and meaning of these presents. And the said Great Western Railway Company hereby covenants to and with the said Grand Trunk Railway Company and the said Northern Railway Company, and each of them, that the said the Great Western Railway Company shall and will 76 in all things, on their part and behalf, well and truly observe, fulfil, perform, and keep the stipulations and agreements herein contained, and shall not nor wrill, in the use of the said Grand Trunk line or sidings, or of the tracks and sidings to ^^e constructed or jointly used as aforesaid, wilfully or improperly iiinder or ob- struct the jubt and reasonable use thereof by the said Grand Trunk Railway Company or the said Northern Railway Company contrary to the true intent and meaning of this agreement. And the said Northern Railway Companj' do hereby covenant to and with the said Grand Trunk Railway Company and the said Great Western Railway Company respectively, that the said Northern Railway Company shall and will in all things on their part and behalf well and truly observe, perform, fulfill, and keep the stipulations and agreements herein contained, and shall not nor will in the use of the said Grand Trunk line or sidings, or of the track and sidings to be constructed or jointly used as afore- said, wilfully or improperly hinder or obstruct the just and reason- able use thereof by the said Grand Trunk Railway Company or the said Great Western Railway Company contrary to the true intent and meaning of this agreement. AND lastly, it is hereby further agreed by and between the said Railway Companies, parties hereto, that each Company shall have power at any time hereafter, to establish and work any passenger and freight station on the north side of Esplanade Street, east of Bay Street, that it may select, and shall have authority to purchase land for the same, and shall be at liberty to cross Espla- nade Street to such place and in such manner as may be neces- sary for convenient access to such station ; provided always, that no such crossing or access shall, in any way, interfere with or inconvenience any crossing or access to the station grounds of the other. IN witness whereof, the said several Railway Companies have hereunto set their respective Corporate Seals, the day and year first above written. Sealed with the Corpor- ate Seal of the Grand Trunk Railway Company by the Hon. James Ferrier, I who at the same time and in my presence delivered the same on behalf of the said Company and affixed his signature thereto. W. Wainvvright. J. FERRIER, f Corporate Seal of /'L • /GrandTrunk Chairman. 1 RaiUvayjCo. n1 77 rve, ein ink ted ob- Jid' my int he id eir ep ot of :e- n- or le le JI 3 Sealed with the Corpor- ate Seal of the Great Western Railway Company by the Hon. William Mc- Master, who at the same time and in my presence delivered the same on be- half of the said Company and affixed his signature thereto. Geo. B. Spriggs. Witness to signature of Frederick Cumberland. J. P. Macpherson. . W. McM ASTER, f Corporate Seal of r Chairman.! ^-4 Western F. CUMBERLAND, Managing Director, N. R. Co. rtZ Vt^^S^'"' "' \ ™0S. HAMILTON, ! Corporate Seal of Northern Railway Co. Thomas Hamilton. Geo. R. Hamilton '} Secretary, N. R. Co. u 78 On the passing of the above Act the City made the following conveyance : Conveyance. Dated April 19th, 1866. •11 THIS INDENTURE made the nineteenth day of April m the year of our Lord one thousand eight hundred and sixty- five, between the Corporation of the City of Toronto, of the first part, the Crand Trunk Railway Company of Canada, of the sec- ond part, the Great Western Railway Company of the third part, and the Northern Railway Company of Canada, of the fourth part. WHEREAS by a certain act of the Parliament of Canada, passed in the twenty-eighth year of the Reign of Queen Victoria, entitled " An Act to legalize a.nd confirm an agreement made between the Grand Trunk Railway Company of Canada, the Great Western Railway Company, and the Northern Railway Company of Canada, relating to the Toronto Esplanade, and for other purposes therein mentioned," power was granted to the Corporation of the City of Toronto to convey to the parties h :re- inafter described of the second, third and fourth parts a right of way over, upon and along twelve feet six inches off the south part of Esplanade Street from York Street to the easterly limit of the said Esplanade for Railway purposes, which said rignt of way the said Corporation is willing and has determined to grant. NOW this indenture witnesseth that the said Corporation of the City of Toronto in pursuance of the said Act of Parliament doth hereby grant unto the said several Railway Comppnios, parties hcrclo of the second, third ami fourth parts, a rijjht of way over, ujjon and along twelve feet six inciics in width off the south part of Esplanade Street adjoining the ' orthern limit of the south forty f"«='t of the said Esplanade, and extending along Esplanade Jitroct, from York Street to the easterly limit of the said I'^splanade foi Railway pi'.rposes as in the said agreement mentioned, subject to, and upon the terms and conditions in the said Act of !'arliament, and in the said agreement which I'orms the schedule thereto mentioned. Nl 79 AND subject also to the further condition, that the said Railway Companies, parties hereto, shall not nor will any or either of them block up or obstruct any of the public streets or crossings leading over the railway tracks to the wharves or water frontage with any trains, cars, engines, materials, stock, freight, or other Railway appliances. TO have and to hold the same unto the said three Railway Companies, parties of the second, third and fourth parts, their successors and assigns, to and for their own use for ever, subject to, and for the purposes, and upon the terms and conditions mentioned in the said Act of Parliament, and in the said agree- ment. AND the said Grand Trunk Railway do hereby covenant and agree with the Corjooration of the City of Toronto, that any person or persons owning or leasing a wharf or wharves south of said Esplanade, may at any time lay down and construct from the south side of the Grand Trunk Railway a siding or switch and connect the jame with the southerly track of the Grand Trunk Railway. PROVIDED always, however, that the said siding and switch shall before being laid down and constructed, be submit- ted to and approved by the said Grand Trunk Railway Company in writing. AND further that the said siding and switch as to its use, shall be under and subject to the exclusive control of the said Grand Trunk Railway Company, AND each of the said Railway Companies, parties hereto of the second, third and fourth part3, do hereby covenant with the Corporation of the City of 'I'cronto to observe, perform, and faithfully discharge all the duties, obligation^, matters, and things which in and by the fourth, fifth, sixth, and seventh clauses of the said Act, or in and by the schedule thereto, or in and by this Indenture, arc re(iuircd to be done separately or jointly by one or either of the said Companies. AND each of them doth further covenant to conduct their business with the said City of Toronto upon the said tracks and swit'r'ies in all respects, so as to produce as litiie inconvenience to the general trattic on Esplanade Street and other streets lead ing to the wliarves as is practicable or can reasonably be '.xpcct- cd from thei.i. AND the said Corporation of the City of Toronto do here- by for themselves, and their successors, covenant with the parties 01 the second, third, and fourth parts, respectively, that ihey the w 80 said parties shall, and each of them shall, for the purposes in the said Act and agreement mentioned, have the quiet possession and enjoyment of the said right and easement hereby granted. AND that they, the said party of the first part, and their successors will, upon the request and at the costs and charges of the said parties of the second, third, and fourth parts, make such other and further Act and deed, as may be necessary for the full and proper carrying out of the said Act and agreement, accord- ing to the true intent and meaning thereof, as they the said parties of the second, third, and fourth parts may reasonably re- quire or be advised to have done. AND lastly, the said Corporation of the City of Toronto, for themselves and their successors, covenant with the parties of the second, third, and fourth parts respectively, that the time men- tioned in the said agreement for the completion of the sidings therein mentioned, shall be extended to the first day of June, now next ensuing the date hereof. IN witness whereof the said Corporation of the City of To- ronto have hereunto affixed their corporate seal, and signed the same by the hand of Francis H. Medcalf, Esquire, Mayor of the said City. Countersigned by Andrew T. McCord, Esq., Cham- berlain of the said City. And the said respective Railway Com- panies, parties of the second, third, and fourth parts, have here- unto affixed their respective corporate seals, and signed the same by the hands of their respective Presidents, on the day and year first above written. Signed, sealed ) and delivered j F. H. MEDCALF, Mayor. fSe lof Seal of City Toronto. 81 Statement of Expenditure by the Grand Trunk Railway Company of Canada, west of York Street, on the Esplanade, for Land and Build- ings only. The Ibllowing shews the cost of the land occupied by the I -and, inchich'ng right of way j, 'buildings, as above ^ -M7 ooo \ 345 ooo Total * _^, -P 592 000 T?^ 82 Statement. The following is a statement of the number of trains and PASSKNCKR. Trains 86 ^ars jQj FREIGHT. Trains Cars 43 767 SfNGLE ENOINKS. 141 indp:x. ) Agreement between the City of Toronto and the Grand 1 'iry2ist, i8-,6. (Esplanade right of way.) f Correspondence and Report, &c. - . . . Award, dated April 2ist, 1856 --..." Agreement between the City and the Grand Trunk Raii- ) ' Agreement for .ale, dated December 23rd. 1862 Patent ^for^Water Lots between Rees' Lot and Peter Patent for Round House Block .... Statute confTn,ing Agreement between (irand Trunk / (.reat Western, and Notthem Railway Com' pames. dated March ,8.h, ,865. (SeeVp;" Agreement referred ,0, for.ning Schedule tu said Statute ""'fw^r'-^"*-^ "■'■"' "•^- -•" •^'»'">e and , Agreement between the City of Toronto and the tirand ! I runk Ka Iway for sale of land for Union Sta ' lion, dated May 1511,, ,866. j Kxplanation LetterfrcMn J. fl^kson ,0 (;. Laidlaw, dated Juno 6th; Do Do -....," ^ Kxplanation and Statement - - . Judgment of V. C. Proudfoot - . PACK. June 27th. 1879 Dec. 39th, 1P79 8 10 •3 17 20 26 67 7<» 7« ^2 36 37 3H 41 44 5> 81 8a