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Les cartes, planches, tableaux, etc.. peuvent dtre film6s d des taux de r6duction diff6rents. Lorsque le document est trop grand pour dtre reproduit en un seul clichd, il est filmd d partir do I'angle supdrieur gauche, de gauche d droite et de haut en bas, en prenant le nombre d'images n^cessaire. Les diagrammes suivants illustrent la mdthode. 1 2 3 4 5 6 v /«■' 't... i BOARD OF ORDJy.lJSrrE ; Showing the Issue of several Lawsuits instituted ^^si against Lieutenant Colonel By, Commanding si* Royal Engineer, Rideau Canal, in a Letter to that Officer, BY Q(Q^^ STo iiiii<;^iii&&[tii^9 m^(^^ BARRISTER AT LAW, AND SOLICITOR TO THK ORDNANCE DEPARTMENT.FOR THE RIDBAU CANAL SERVIt PRINTED AT THE PATRIOT OFFICE „i \ if'- -f M In nnl 'againit Lie be thought ticeofthei matter betT however is lie net, of tl vidual hold considered at heart. The Rid( tiimii of 185 completion the work n ltd being re from one ei ter, when i bout fifty II excellence ( praise; thej of those, r, the world. Althongli ocsofinterr stance, the maxim, 9.m( liivers, rnd where a Fal of the prcfe pie fact, tba ■employed ii In the nayig the force en subsistence plies with g ■employment ed oy horsei capable of b things favou to using the Steam Boats ded by the < ■of the count] lands, and al being comp( the stream p to avail himi experience, In n publi should enlar by this Cans Tnercial, or n Jy known, tl descriptions «.xcued their the St. Lawr between Mo of stores. Th the entire pa Lachine Car While this •n imperisba lior,thc name concurrence Ji^7^ismi^mmm^^u\ In nnWishin!* Ihc details, of th» issue of scVcral law suits, Which havo been hrpn/jlit against Lieut. Col. John Hy, comtnamling lloyal F'ni^ineers, Uiilcau Canal, I am aware tlmt it may be thought necessary I should explain the motives which have induced rac,tn obtrude; upon thu no- tice of the public, the following report :— It may bo said that the result oftlu',.sc triaU is a private matter between the parties concerned, in which the public are not particularly interested ; (hi» however is not the case, the authority, under wl.ich Col. By. acted, was conveyed to him by a Pub- lic act, of the Provincial Legislature, and the questions now settled intimately concern every indi- vidual holding lands on the Uanks of the Canal, and as matter of public notoriety, cannot bo considered devoid of interest, by any who have the improvement and prosperity, of the Province ^^at heart. I The Rideau Can»l , is a work of great magnitude, and ever since its commencement, in the au- tumn of 1826, the public mind, has been attentively directed to it, and during its progrcsc, towards completion, it has been viewed with exceeding interest. It may now be considered complete :— the work remaiDlug to be done, being so very trilling, that no doubt can possibly be cntertamed, of its being ready by the opening; of the navigation, in the spring, for the free passage, of Kteani llo.its, from one end of the line to the other. An ill constructed, and unwieldy boat, drawing four feet wa- ter, when unloaded, has already plied upon it, from Bytown, to Merricks JMills, a distance of a- bout fifty miles ; a sure pledge to the Public, of the fitness of the Canal, for ytcam navigation. This cxctllence of the workmanship, and the superior construction of the looks, ami dams, rctiuirc no praise; they speak for themselves, and are the subject, ol universal adrairatinu, Jand in the opinion of those, most competent to judge, of such works.j exceed any thing, of the kind, in any part of the world. Although experience, has long since exploded Iho idea of using the beds of Rivers, for the purpo- f ocs of internal navigation, where a Canal may be constructed, yet the Kideau Canal, presents an;in- | stance, the first experiment of the kind, ever tried, in direct opposition, to this long eatablishcd maxim, among Engineers, where the whole line of the canal, is composed entirely of the Beds of Hivers, end Lakes^he onlv cutting, or more properly speaking. Canal making being nt those places, where a Fall, or a Rapid, bad to be surmounted, or one Lake, connected with another. The reason of the preference of Canal navigation, to that of the Beds of Rivers, is quite obvious, from the sim- ple fact, that the expcnce of the Infeor in navigating a River, is far more than that necessary to be •employed in working a Canal, to say nothing of the risks, and losses to which river craft arc liable. In the navigation of Ilivers, reliance must be placed solely upon the labor of men, while on Canals , the rorec employed, ij generally that of horses. In this country, the labor of men, is dearer, and the subsistence of horses, IS cheaper than in Europe, and therefore the reasoning on the subject, ap- plies with greater force in thia country, than it does in Europe, where the expense, .""onding tho ; '<"!['P'''yment of men is muchmorc moderate than here. Hence, as a Canal is intended for boats, to\,- ed by horses, the construction of atowing path along the Banks of a river, even supposing tho river ' capable of being made into a canal, is of itself attended with great difficulty, and even, wore other } things favourable, it has always been found preferable to make a Canal along f ink of a River, to using the bed of it for purposes of navigation. But the Rideau Canal is ana. in intended for '• Steam Boats, where,of course, no towingpath is necessary,ai)d in tho constructii it Col. By, gui- j ded by the dictates of sound experience, has adapted the work as closely as posi to the "na!ur. ession of tablo 1 lands, and all the rivers, and streams, that intersect the country, have one uniform charactcr,that of being composed of a continuity of sheets of still water, with a rapid, or fall, at those places, whero I tJie stream passes from enc level to another.- The[commanding genius of Col. By, has enabled him / to avail himself eflectually, of this general feature, of the face ef the country, and his great practicul ' experience, as an Engineer, has sugjijcsted to him the roadiest means of perfecting his object. spec permit, that I in a publication like the present, It cannot be expected, neither would should enlarge on the advantageous prospects thus unfolded to the Province . Suffice 'it to say, that by this Canal, benefits inestimable, must be secured to the Canadas. Whether beheld, ' inercia!, or military point of view, its importance is inealculablc. It is a fact, perhaps not J^ known, that during the late war, the transport of Naval and Military Stores, and gO' descriptions from Montreal, to the Up^ier Lakes, used generally to amount to, and «xcued their original value, to say nothing of the danger, and risk, attendant on I general- goods of all in some cases to \ -1, o* T -0-. ' J ■—.....■a ^ ..— a"- , —»• I'.in, niicii.iuui. uii the navigation of ine »t. L,awrence, in consequence of the numerous, and dangerous rapids, that occur on that river oetween Montreal and Kinkston, and which too, were the cause, of grievous delays in the transport 01 stores. The cvus heretofore existing in this respect, will be obviated bythcRide.nn Canal, and, tnc entire passage through its line, from Montreal to Kingston by the way of the Grenville, and' «M,"i* ^■'"''' performed in eight and forty hours. an tior, While this work stands, a splendid instance of the munifioetice, of our paternal Government, and imperishable monument of its fostering care, it will transmit to posterity with distingui.^hed ho- r,tne name of Col. By, with whom, the idea of the work, first oiigin.-ited, and who by a fortunt"- concurrence of circuimtanceiV was destined to superintend, its construction. Sir, Ih ler Gen I report nandin] vhose J )y you, rom yo >iid by V -7th, Fc s prope he act, ; he actio lor the p might el unmolesi powers V ding Enj be deeme copy of tj from it, tl is stated i Kures to I per iiiilitj of I ,.ike C iiavifratioi whereas i ^-he secur and will a f.'ijts ; and facility, tc forp fin act the said w fry lyintr b the iliv'er ' of, or belo; ate. and lo Riileau Canal 3tl of December. 1831. Sir, t report of the issue of certain nrfiiif^^'''.^^' ^^^'"^ of Ordnance, nan'ding Royal Engineer oTtheRi^LuC^^^^^ T^ ^^ ^«"'- vhose property the canal passes ft n^''^ •n'l'viduals,through 'y you, anS for the recovery ^^^1^'?. trespasses, committed rom your appropriatingcertain tlf ?' ^^^'^^^^e sustained by them, •nd by virtue of an ac" of tl I Pro. in '■ f ^Y "'? °^ '^^ ^^""^ ""'^^r 7th, February, 1827? ^'ovinci^l Legislature, passed on the I proper that I should say a few wSiffn ^"i'""'"? J"^^ particulars, it he act, above alluded to ^andeLrint'c *" 'P""'^' ^"'^ ^'^^"'M of »e actions, here-in afterCbe detai " '^ ior the purpose of protecting such Offi J ' ^?^'^^ Passed expressly "light ihoose tohC Sthe ,-^ • •' ^'' Government unmolested discharge of h^ldutv 'Thjf';'^'""'-^^**^' ^•^''J^' '" »*'« powers with which fhe Sta ute \"bo, e m.n? h"*"''' " 'V'^^' "^ ^»'<^ d^ng Engineer? and the next how r^.^^''' 'T'\' *''^ Comman- bedeemld personally iS ? Ac n'^"^'" what instances, he can copy of the StatuteritViHb^now unne^r'''^ ^" ^"*h«"J^^^^ ^« supenllTend trv lyinif ?,«f ' „_ T , y"'' Potver and authority top.vnlor« th- r— n J, dna idke levels of the same, or any ,,art (hereof, an.) sel out, an.l r.sccrlnin such parts thereof, as he shall think nccei- .ary, and proper, tor inakintj s"i'l Cannl, Locks, Aqueducls, Tunnels. %nd all such otlier improveinenls, mottfrs, ^M r.onv:FOv,„g cou;plHing, and using in the said navigatioS;' and also,to bore, dig, cut, trench, remove,takc,carrv away, and Jay earth, soil, clay, stone, rubbish trees, roofs of trees, beds of cra- yel, or sand, or any other, matter, or thing uhich may be dug,or ffof 1.1 the making, su.d Canal, Locks, Tunnels, acp.educts, or other im- j)rovements, or out of any lands or grounds, of any ijerson or persons, udjoinmgor lying contiguous thereto, und which may be necessary for constructing,or repairing the said Canal,or other the said work8,or improvements or which may obstruct the making, or maintaining the same ; and also, to make, build, erect, and set up, in and upon the said Canal, or upon the lands adjoiniug or near to the i»ame, such nnd so many bridges lunnels, aqueducts, sluices, locks, wears, pens for water, lanes. Reservoirs, Drains, Quays, Wharves, Landing places and^other Works, Ways, Roads, and Conveniences as the OfRcera: ionesaid, shall think requisite, and convenientfor the purposes of the Auvjgaljon ; and also, from time, to time to alter the route of the said Canal, and to amend, repair, widen, or enlarge the same, or any other of the conveniences, above mentioned, as well for carrying or convey- ing goods, commodities, timber, and other things, to and from the said Canal, as for the carrying or conveying, of all manner ofmaterials ne- cessary for making, erecting, finishing, altering, repairing, amending?. ^T^' ""l 'r^''^;"^ ')' '"°''H°^' a^'J belonging to, the said Na?! igation ; and also, place, lay, work, and manufacture the said mate- or any of them are,or shall be intended to be made, erected,repaired, or done, & to build & construct, the several locks, bridges, wJrkk & crec- lions, belonging thereto; and also, to make, maintain repair, and alter any lences, or passages over, underor through the said Canal, orthe Re- fiervoirsund lunnels. Aqueducts, Passages, Gutters, Water Courses, and bluiccs, respectively, which shall communicate- therewith: and also, ty make, set up, and appoint, Drawing Boats, Barges, Vessels, or Raffs, passing ,n, through, along, or upon the said Canal, aa the Offi- cer aforesaid, shall think convenient, and to construct, erect, and anj Jti c^-s, or Brooks, A^r making using, maintaining, and repairing he said Canal, and the Towing Paths on the sides thereof ; and also, o construct, make, and do, all other matters and things which he shall or persons, e neccssniy id workSjOr taining the d upon the 3, such nnd 8, pens for ing places, e Officer a- loses of the ; of the said rany other or convey- Dm the said aterials ne* amending, 3 said Nav- said mate- said u'orks epaired, or kg, & erec- r, and alter ,orthe Re- ■ Courses, with ; and V'cssels, or I the Offi- erect, and and aoros!'. I repairing and also, [•h he shall preserving luanceand as may be, sted." le Officer, and acree e, or sole, 5s, not on- ;ssore, but ilso for ana on behalf of those whom they repres'jnt." For the ahio utc surrender to His Majesty, his heirs and successors, of so much of the said land, as shall be required, or for the damugcs which he sha orlhey may rea.'onably claim, in consequence of the said Canal* &c be.ngcut and constructed, in and upon his, her, or their respective ands and that all such contracts, &c. shall b^ valid, and effectual, in Uw, to all intents, and purposes whatever," '^ The 8d. section provides that, "such parts or portions of land, or f A'^''"''^ with w-ater, as may be so ascertained, and set out by the Officer employed by H.s Majesty, as necessary to b • occupied for the purposes of the said Canal, shall be forever thereafter vested in HW Majesty, his heirs and successors." The sixteenth section. I extract entire. It is as follows. » \nd whereas It may hereafter happen from floods, or from unexpected ac- cid«nt8that wears, flood-{,;ite8, dams, banks, reservoirs, trenches or otlier works of the said navigation, may be damaged or destroyed, and the adjacent lands or the property thereon*thereby damaged, and that It may be necessary that the same should be immediately repaired or rebuilt, to prevept lurther damages. Be it further enacted by the au- thority aforesaid, That when, and so often as any such case may hftp. pen, It shall be lawful for any person, or persons employed by his Ma- jesty, from time to time, without any delay, or interruption from any person, or persons, whomsoever, to enter into any lunds, grounds or hereditaments, adjoining ov ne*- to the said Canal, or branches, reser- voirs,ortrejich€s,oranyof them (notbeingan orchard gar .n oryard) and to dig for, work, get and carry away, and use all such stones, gra- vel, and other materials, as may be necessary or proper, for the purpo- ses aforesaid, without any previous treaty whatsoever, with the owner or owners, occupier or occupiers of, or other person or persons, inter- CBted in such lands, grounds, or hereditaments or any of them, doing as little damage thereby as the nature of the case will admit of, and milking recompense* - such damages to the owner, or owners bf or other persons intcre led in such lands, grounds property or'hefedita- nients within the space of six Calendar months, next after the same shall have been demanded, for all da»nages, which shall or may be done by means of such accident, and means of the digging for gettinr wcrking,taking, carrying away, and using such stone^ gravel, and materials or any of theni, which damages, an'^: the satisfaction, and re- compence, in respect thereof shall be sefjed, adjusted, ascertained and determined, by the ways and means, 'hereinbefore described, with respect to the other damage done , by <.\,e making and completing the said navigation." > -, < ,* The above extracts from the sWute are all that I think necessary to be quoted in this place. Toac;ursory reader of the statute, it may seem a defect, that it is siler.t in regard to the manner in which the lands required for the Cana^, are to be taken possession of j the legal Drocess in the r.anp. m r.na n.>« -i: l-:__ -_-^i._„ •__• ° cessanly tedious; butj* will be seen, that the first section declares that the work ib to be unj^ertaken, by the proper military department, and r 7 taken for the erection and completion of the work aThe m^' Lm proper .t.s accordingly undernto'cd, that the coZandfng officer 3 ake possession of the lands renuired, and issue his .rde?, a^eVX^ Ih ? iVr "tqfc?fo"owea,and authorised by the DeparK.ent to which lie belongsWhe process of dii-posessing l person Tn case of ous and likH w/h^"""'.^ ^""^ '^' P^""'' *>«•"» ♦»^"» neceSsarify "d . ous and likely to be productive of very serious consequences bv re- ortSfr o?t?'°"'r '°" 'J'^t ''''^^ °"^ accumulath,7expense toVnc rnr^i. u*^ parties, the Act is silent on the subject, ind it there- .nvjsts the commanding Officer. In regardtothe^ quantify of ^aid au hpnses the commanding Officer to tike for theSo L of f.e ca nul, It will be seen, that he is empowered to take as 5uch as 1 e m«v think proper and sufficient for "making, maintainirtg, and u»inrthe «aid Canal ^ Now, here are three things which rcquiVe conS?tion and which must guide the Officer commanding. inThe exercise of his' judgmen in appropriating lands for the scrvici of trcanaTTndfr ih^ act ; with regard to makinethe Canal, the officer is empowered to "ascertain and set out" sucTi lands or grounds, as he m^v tS^.nl cessary and proper, for making the saifcanal," and n2g?he ^^^^^^^ of course 1,1 view what is absolutely necessary and proper for usinir it* and on this head, the act is, sufficiently explicftand its Si.' ;^7nrTJ'' '"^ any lands or grounds that he m^thus deem ne^ces J'. a^nd possesr^Tithrutl^^^^ ™'?^'°"'^' 'i^ T P^^«''^ ^'^^ '<> «nt"rSpo„ ana possess, without delay, doing as little damaire as mav hp {nX^ execution of the powers committed to him. ^ ^ ' '" ^^^ ».nr/S^ ^? maintaining the Canal, it will be necessary to be a little more particular, as it rests in the diecretion and judement of theCom manding Officer to say, how much land is required for th^s m,r„°? jn addition to what may be absolutely necessa?y for the mere Kf the Canal. It must be evident to all, that the Act contemDlates the rff fence of the Canal, in case of war, from the incursls Sf an enemv* r!Zff''"\"'''T'''''''^ °^^*'^* ^"^""««> i" a state of effective opel ration from all accidents, that may happen from natural causes nr^^ juries that might be done to it from ili ^disposed or malidous p^rsois" Jhe only question is, how far can the Officer go in the eiecu^ion nf this parto?his duty^theactitself imposes on him norestraint or check whatever ; but it must be understoo'd, that a power oftontromnf hfm mand'^ISrdir'* "'^ ^^"^^'^^^ ' ^?.^^' '-' '^^ Officer in^cor r«^oi'Ji^ *^vP°''^'*®''®'"yP«"onof Jiisland,oneach side of the that i IT. ""«'"?•*«/ extent, and that too, upon his mere „e dVx.t . ^ "^ -"-aiiBa. racrc u appears tb«t great, • Vide Appendix. lUfM. to b« may deem officer •liali agreeablj }artmcnt to in case of le posses- aarily tedi* ice9» by re- ense to one id it therc- icretion in ingly com- th which it of land, it J of the ca- as he may using the sideration, cise of his , under the >wered to think "ne- ^80 he has r using it; ts provis- 1 necessa- nter upon be, in the be a little ftheCom- i purpose, ere bed of es the de- n enemy, ctive ope- ses, or in- I persons, icution of or check 'Iling him I* in com- ide of the '»E DIXIT wt great. confidence « reposed iu the liibuaalsof the cuuntry, itud that xi^ d«- «!•*]!" ♦•« co'Timanding Officer, must be home out by the opinions ^uiHrH : and «.'xpencuctd men ; otherwise, the net, most assuredly, will not protect him. Any man who thinks himself aKjrricvcd by another, may appeal to the proper tribunal for redress, and if the com.nanding officer, as agent for government, hm oversleppod hi^ vinnr^'r. ?°"^'"\"«'^ "^ ^^'^V'on }^m- upon the property of any indi- Mdual, andthis can be proved agamst him, he is of course linbio to suf- ter, and Ihe Government, may bear him uut, or not, as it may think pro- There is thus, a considerable latitude in the construction of the Act, and much scope for difference of opinion, in regard to the quantity of land, that inayJ)e thought necessary for this purpose.* It will here- t collected that^the Rideau Canal, is properly spcakVng, a naviga-^ tion intended to be used by Steamboats, and other large craft diffcr-l ing very nialcnally from other Canals, as they are u.sually c - >tructed : —IS whole line, consists of the beds of Rivers, a.id Lakes, the only cutting, being at those places, where it is necessary to surmount a ra- pid, or a fall of water, or to unite one Lake with another. There is thus formed a connected succession of sheets of still water, extend- :} I ing over a tract of t^ountry for a distance of one hundred and fifty miles.f Now the Rivers, and Lakes forming the Canal, being at many placesl of very great breadth, it will be readily seen that in making the Jppro- ^rjation of land. For MAiNTAiNmc the Canal, as well as that required or the mere making and using it, the quantity so set out, and re- tamed as necessary, must in the first place, be sufficient to prevent any person, from obstructing the navigation, or otherwise injurinir the works, by throwing out wharves or other buildings, in the vicinity ot the works, or on any part of the line, which might in any way im- pede the navigation, or otherwise obstruct the free passage of boats • and in the next place, in case of a war, regard must be had to the' points, where an attack might be likely to be made by an enemy, and thus sufficient ground ought to be set apart, for erecting the defensive works, and establishing the depots, necessary to the protection of 80 vast, so costly, and so indispensable a structure pC These ob- . jects would of course occupy the serious consideration of the Com- manding Officer, and uniformly direct him in his duty.V Liberal as are the provisions of the act, and comprehensive, as are the powers it conveys to the Officer in command, it is not so framed, as to protect him trom the vexatious and harrassing law suits, of litigious individ- uals. The legal tribunals of the Country being open to every man any individual, may demand restitution, from another, who he may think has injured him or trespassed upon his rights. Attempts have been made to make the Commanding Officer personally liable in a great many instances ; how far he may thus become personally re- sponsible I shall now proceed to show. , -. s L.^.;, ?,.,,, ^R^ j,^„jj jjcccsaury lo Du occupiea lor making the Canal, maintaining it and using it when completed may be taken pos- •CMion of by the CommaQding Engineer, immediately upon his deci- »;* -iu i «o„ or .„'y other mode „T.iju,ta™r 'ported oufrS A« t'"-" absolutely necessary for the execution oV the nork and iL f T^*?- " of specu ation, or fraud, on the part of ndividgals „h^ P."?™'?''?" posed might erect buildings, or incur other ey„,^!^„.' I'- ' "■' ^''^ for all of «-hichhe .night ^eiand damag rfr„roX,:Lm ''.'X?' ..Trat''^Sir„„a rit''^irnot' '4^r4?^' "'- lywould'he a hinSSlfe 'a 'heT y^c^ost- \l\t':^l'' ■"Tr„''"" ^'■ inconvenience or imposition of this kind h. nm.' J" P™"'"' any I empoiveredbythcActioenter,,ni„ l»j', w ' Commanding is V u/o( the pfnisesfn cMsS rX iccu„ eS fo^^^^^^^^^ "" v"' "=• the pp«rers, with which he is^inJesUdrar? necessarlv i;;rfi„?"^: •' SEte^!,^'clrn:f'^trp^7 ft^^^^^ •f-"'™ jSJ-y.on .he proX'o?an" v1d^,r„7mrbe'Ul"v''o1 fa"„nt''rhraarroVthnc7"te'' '» «P^&^ cified in the Ac,, and, h"e pJ^prSr Zkl" 'ht^el^'eTv?/ o?E E ' ^\^S?f [her repugnant to the act, and entirely subversive of Ju jy to weigh the necessity of the Appropriation. The Ltin? «f T^' power should be to detflriv,m« ^ililu J: ;-":"•. ^,"®. ****?*. <>' ^heir «6*d in the Act ; and .f they are .atisfied of this, it is quite ■bufficieot 11 thout nraidbg i8 of arbitra- e Act-T-this is he prievientipn ho, if so (lis - I his propcrt}', ner|t, end per- mbst exorbi- orethasi lijce- o prevent any >mmandingis n without de- vice, Now, as »definite,.it is Commanding >mniit an act ybe guiJtyof ippropiii^ting dispossessed lore land has 3 to warrant, redress, by inal, and of his claim landing Offi- rposes spe- ^rived of his against the ho is to de- jn.necessary ■ It would ?rsive of its andingOffi- were liable , &, by more t of Justice he construe the defen- m, was ne- he land so in the Act, perience in g him out, The jury 5ered, nice- it of their (hose best 'estedness, poses ape- i&ufficieiit .. i to warrant them in giving a verdict for tlie defendant. If a jury hove- ever should disregard the Act, and obstinately persist m finding a ver- dict for the liaintiff, while the Commanding Oflicer was decidedly of opinton and that, opinion corroborated ^y sufficient evidence, that the land in dispute was required for the service, the remedy in this case 4 would be the oljtaining of a new trial, or perhaps of several neiv trials, till a verdict should be awarded consistent with law. But it is not likely thai a cftse so entirely doubtful in its'circumstanees should occur; if it did, however, and the Court should feel it nicessary eventually to bend to a succnssion of verdicts against the defendant, or if it should decide in a manner inconsistent with the spirit and meaning of the Act then, the Commanding Officer as an individual must submit, but it is presumed that the Government would indemnify him, unless they altoffethdr disapproved, and condemned his conduct in.the particular , instance It must be confessed,^that evidence.in a case of this kind, is in its nature doubtful ; even professional men of the highest respect- abilitv may form di^'' i^nt opinions on the same grounds ; but in all cases the . .dence of men of acknowledged pro- fessional talent, aided by sound common sense could not be disputed. It is therefore apparent that the Officer Commanding, in the execution of the powers committed to him, must use a sound discretion, in order to prevent the subject from being unnecessarily deprived ot his pro- nertv It is the duty, of the Courts, to maintain justice, by at once Jrotecting individual rights, and upholding the legal powers conveyed L the Statute, Thus, it is evident that the Act does not protect the Officer in charge, bypREVENTI^G individuals from bnngmg at tions - acainst him ; the protection afforded, is by guarding hini against the -:*' Consequences of such actions as may be brought for any thing done by '^'him in discharge of his duty. He is unavoidably exposed to attempts- ^ to make him personally liable, and such attempts, it is natural to sup- pose would be made, by the litigious, and they have been made. It is • perfectly clear, that when any such action shall be bfought against him *for any thing, which the Act authorizes, it must totally fail. Ihe Plaintiff loses his suit, and the Officer is subjected to no farther inju- Tv thanbybeing obliged to defend a groundless charge, which is a vexation every man, is liable to suffer from persons who arc so impru. dent or litigious as to urge illegal and hopeless demands. Avercbct ' in his favor, entitles him to be reimbursed his cost by the Plaintitt, -"and if the Bill df cost, when taxed, will not reimburse him, or the - means of the Plaintiff prove insufficient, he of course, rnust look to - the Government, who assuredly will indemnify him. Still further to ? prevent vexatious litigation, the Act most explicitly provides, thatm '^- the first place (section second) an amicable arrangement between the "parties, or their legally authorized agents maybe made, and if both ^ parties tha* is, the Officer Commanding, and the proprietor of the land, ;* shall be satisfied, then there is an end of the matter ; but if that shall not have been aone, men mc iJiuuci is tu uc uti.j^t^« -j t,.- --- — 7 ~ ^ the manner pointeid out by the sixth section of the said Act. If again *t'' the party claiming damages refuses to abide by such arbitrfttion, then ""* the questioD is to be determined by the decision of a «p««ial /uiTi wm- UQd upon H >'^*2 lujj cuoduci^'il in It «o«rnmen(. ' "' ""'J' f™"" Ihe Si.iuic- (1 f Y 'V ," "«'« "> »«- By th» Third Section ih,. I. J ' ' '»''"'• *"■•»»> ">e prrelor. or nof.toSe wll.l' ?.°' ""^ P»"<'i" whe£ , •" P!°''» ■»««"- "Ppropriation wh.vif °''. * •"•"id iudiemri'.V'"*? »,9i«nii(ic princi- ' !I"'redforthec^truc?o P"/P«^^^ tlfe Canal Yn^^^i'-i^^ ^^^icl 'n any wise raay be n^.f " ^^*»y "'orfci connected wWk" '"*''' ^'^ J-e- from anypeSs dS^ the the comlin l'^ J'' "^^ ^^ch the consentofVkf '^ P®*^'^' "'here hemav finT. l ^^^ "« nt of it *re foS'Vo'x'srtt'^''^ pr<>pe«;fupot;t^errif^'^'^^^^^^^^^ the second elause onil%^* ''"***'on 't 8 only nil '"'^^ materials nalandbindW award- of the rj^,— which ex. ecoJJected that "ffofthej.ir^., ' "'6 manage- sputemayoc- ^rt of Justice, to have been mandingOffi. I^y wrong, the ' n»sact3,tes- « right to ex- 80, from the led to be ne- -after vested P'aJn mean- ''•'g'Jnal pro- secution of [ otherwise iect himself Officer, as ne original trespassed ' Act, and and it will essarjr for s decision ^c pWnci- ion in the >f men of •thervvise liired for sed whe- can dig . which are re- 1 which >g of it, without iterials efer to >rcs8]y 8^1 cut', >icit,to eguir. II •dfor the service whicli might be fouad in tlw neighborhood of, and necessary to the said works. It has been supposed, and has even been urged by many, that such materials are private projjerty, as much so, as any other private property, which is always a fair subject of compe- tition in the market, and which must be bargained for in the usual tvay, and therefore, that supposing any materials required for the service could not be obtained, but at a distance from the scene of operations, upon lands that could not be proved to be necessary for any one pur- pose specified in the Act, that therefore the Commanding Ofliccr must purchase such materials from the owners of them, in the same man- ner as he would purchase Cattle, or Horses, or hire men to work upon the Canal. Whatever color of Justice, may seem to have, such an opinion, it has no force in law. There can he nothing more explicit than the words of the Statute,and in fact, this provision cvid-jntly was expressly made, to prevent any hinderancc in the construction of the works, by tlie delay that would necessarily be occasioned, by advertis- ing and bargaining for the requisite material^. The Act, in the Six teenth Section already quoted, positively proyides,that after the Canal shall have been completed, and the lands necessary for the servic?, ^et apart, and vested in the Crpwn, in qase of any sudden breach, which may happen from floods, "or any other unexpected accident, the Com- manding, Officer may, witlibut delay, or interruption, of.any k'ind, en- ter into any land, or ground, and get, and carry away, all such materi- als, as may be necessary, and proper, for repairing the said breach, or damage, without any previous treaty whatever, with the owners of such lands, doing as little-damage, as the nature of the case will ad- mit. Tjic propriety of a provisipn of this kind, will clearly appear, when u 13 considered, that the Canal passes through tracts of Country wholly ttBinhabited, and uncultivated, that the real proprietors were ii> most cases uot known, and could not be ascertained without consid- J !f u *^' *''®"y®' ^"'^ expence, and when ascertained, perhaps tound to be resident in some remote part of the Province, or even in a loreign land. Such delay would afford ample room, for such specula- tions, and impositions, as might in fact, utterly prevent the execution ot the work. I here allude only to materials found upon lands at a distance from the works, beyond the boundaries of the land, consider- ed necessary by the Commanding Officer for making the Canal. Jt cannot for a moment be supposed, that the Commanding Officer was at liberty to take such materials without paying for them, but wheri it can be clearly shown, that in appropriating such materials he had been actuated by no other moiive than a strict regard to the faith- ful execution of his duty ; that sucfi materials were necessary for the aervicejthat they were the neare8t,& most convenient known,that could oe Obtained, and that he was willing to pay for them at a fair valuation: nojuryofthe Country could be found,, who would subject him to the JZ^f"'?***^!."^^*"*' *.? litigious individuals, who might be so ill dis- •«T.^/ »***''?u''^ '"^?*' *"^ unjustifiable claims. Such are the «wt» respecting the r^ ruvisions of the Riileau Canal Act. That they fw^!^"i-^°''SS?'y ""'T*^ *•** "»«"»* o^thi^ actions brought against the Commanding Officer clearly prove, and a« these trials havS demon- H cerning and generous PuWiS La " ?hS^ ^^^^^s- ;^^;fri ifte Rfng^ Belft^b, Trinity Term Second, Nicholas Spaftei Plttintiff ' This was an action of trespass, institut. ed agamst the Defendant^ to'recovor ' ' V3 1-etit: Ool. By, Defendant «nd taken possession of acerfSSHf r'" ^"'l"^ eitered'u'pon' ,l«:«^[n^fonhe service of the £1^^^^^^ ]^' ^P^rt? of the authorityoftheProtineia Stntn/rof J' ^'' '>y virtue of and under Pute, was taken possesl S Klo^n "^^ ^^^ ^''^ land in dis- Crown for the RVeauTeJviL^'Ld w^.'t'l'^t"^' °" '^' P^'"* '>^^h« monuments, and land marks anHnnior^fi? ^^^i^^^dout immediately, by Sparks, with a writil^S- tttft ^Jl''^^' "^^^^' ^"'^ ««»>* to^Mn Col. By for the seMci Sf the fe^^ ^f ? r"*««'°» *>f by was cl^ed, and fenced nnH no« .A *: .^°''* °^ *^° 'a^d so take J tiffin this cise,co«^;Sfff^^^ ^^^'^^ The p£ necessary for the purDdi^ft nr iKn n i ,^**^ '"^®" ^»fc«n than wa» required lor the saTd Purposes undert;^' t'' '""*^ ^^ P^°^«d t(rbe quoted ; and therefor^ Suted for f^ or the payment for if ItthT^- "''^ *"** restitution of his pronertv th« aide of the Plaintiff wn« fill* premises. The argument used on one hundred acres) wil^ToX^^^^^^^^^^^ he .atisfactio;, of the GouTaiS^ i^^^^^^^^ the purposes specified in the Act iJllrniV'^T''^^ '^^'' «"y o"* ®f Jhown that a p'ortion of theland iC taL°t^^^ '' ^»* burial ground, while a part had been «o.vn I- .^" appropriated to a endeavored Jo recover by law dan al'T.r'^*^ ^'^'^ ''^^ thcrefo^t Which he declared he had susT^ineri lS„ * i^- ^"'^^"t °^ ^»«^0(M>, ([round taken by Goverrmont Or,' ^ZV''^'^^^^^'^ ^^°™ sellini the thesatisfaction of the Trrt an.1 i V ''^'•^^"^' '» "^as P'-oved to landing Royal Engineer in 'CanaZ^^^^^^^^ ^3' C°'' »"''"^«^d Com° jvas necessary for STng a bas^n^^o^^^^ ^"««^'°" tocksat Bytown,and fhaf the remL,n • ^^''''^^ **> «"PI!'y ry, which was proved bv Col n c ^ .® ^^"^ '". ^"cstion was necessa- of Col. D«; nford Was cSrme .r^^[*^ upon this trial. The evidence edired taJ*>nf .^J^!:lT' "^f d by other professional nnen of Aftlrnowi- •* to the Court,' l^haShe ^Jlrr '" ^^^^^ profession. It was further prov- fermed there, Was purelvU 'Hjnstances of a burial ground having been Hur«iy V ,cidental, originating in the death of a child oo«eding8 been 'yingtothedis. J^ded in deTeat- spass, iiistitut- U to recover entered upon, e property of e of and under •e Jand in dis^ le part of the mediately, by id sent to Mn session of by 'and Ro taken The PJain^ en than »va8 proved to be Act already lis property, I disposed of lent used on (upwards of be proved to r any one of (this, it was fpriated to a le therefore •f £10^000, I sellini^ the i proved to nford Com- in question f (he eight ed for the formed in 1 President laJ, after it er,and virho IS nccessa- 5 evidence fackno wi- ther prov- iving been t of a child 16 of one of the overseers of works, and as the place was a com- plete wilderness at the time, the father of the child, asked Col. Bv where It might be buried, the reply was, in any convenient place : no particular spot having as yet been appropriated for such a purpose,bv any religious denomination. The spot alluded to, was pitched upon i recommended by the Clerk of works ; others were buried thereafter wards, and Col. By,out of humane consideration (o the relatives of the deceased, ordered tlie place to be fenced. It was also proved that the earth executed from the Basin must in all probability, of neces- sity be t.irown upon the graves in the same manner as it would havo beea upon the same ground, had it not been tcmporarilv so appropriated. In regard to sowing the ground with oats, no arffu- ment one v. ay or other could be made out ; the ground when once set out tor the service, becomes ipso facto, vested in the Crown, and Col. l-,y, as the Oihcer and Agent of Government, could not be sup- posed to ask Ar. Sparks's opinion, what was to be done with it. The person who was allowed to take a crop of oats off it, was bound to lay It down in grass, in which state, it is at present. It was further prov- 1 il ^i'^l' '-'parks, originally gave, only eighty five pounds, for the ' whole of the two hundred acres, the year before the Canal was com- menced; and, that by the Canal passing through his property, its va- lue iiad been enhanced more than ten fold, as it was shown in evi- dence, that he had sold, and is atill selling lots from the residue left in his possession, of one third of an acre, for more than the original price paid by him for the 200 acres. The Chief Justice, the presiding Judge upon this Trial, charged the Jury to the following elFect: that it was clear that the Rideau Canal Act, invested the Officer intrusted with the erection of this great work,with authority to occupy such lands, as in his judgment were necessary for the purpose. Without such power, it was quite obvious, that the du- ties which devolved upon him, could not be performed, and it was fair to put such a construction upon the Act, as to allow Col. By,every rea- sonable latitude, in providing against difficulties, that might occur trom not occupying in the first instance a sufficient quantity of ground- thatm the case before the Court, when witnesses of professional char- acter, and lii^i standing in society, were cf opinion, that the land was necessary for the purposes of the Canal, it was reasonable to presume, that Col. By took possession of the land, in the exercise of that dis- cretienary power, with which he was invested, that if he had not exer- cised reasonable foresight, he would undoubtedly have proved himself totally unworthy of the confidence the Government had placed in him- that the Act, expressly states, for the transport of Naval and milita- ry stores, to facilitate the defence of the Province, and to promote Its agricultural and commercial interests. That if Sparks, had bene- htted so much by the Canal, he cannot have suftered injury ; and, that, n aftep Col. By's plan had been submitted to,and acquiesced in.by Gov- ernment, It v:c:e to allov/ him to become a suiTerer, it would be a breach of faith, and no Jury could give a verdict, in opposition '- *•- plain mean! cd. y f the Legislature. The Jurvbeiu"' thus ol and the cvidf^nce summed up, fbcy retired for a' fo arg. w minutes, and / 16 SEic'i'cS £■ r?"'; ."'» " ••" f.ii, j-m Perty if) value ir^"^"*^ ^"' *''"* ^^e raphJ T^crea e nJT '"^^ mises & now demanded a remuSon ? ^'''^'^^^J' for the whole pre- hira to avail himself oflSS^ h.'"'^ '° ^^"^ ^"^ recommended complicated, because the pS/- ''ff.® ^^^'^h follows is mnrl ^ ;essor of 'the land, ^af Z ' '" V^^^^" ^" ^"« beTng heTo ' ^ the execution of the woL t%r^uS''T^.''^'''^ entrusted ^"^ formance of his contract whilhwl' ?^"' '^^ ^^^I^^ 'n the pe;. nd.vidual ; and this ?ase furtheitv^lv ^"^^^^^ntly l^ to anofher thfr Commanding Officer tn V]?f '"^°^^es the question, of the nVhf ^? for the service, vfhVch maV befounSP^'^T'^^" °^^»^teH^^^^^ tiguous to, or at a distance from thJ °' °i '"^^ ^^"^ ^^"^s lyLTco? remove houses or any other Stir or 't'?'' ^"^".^^^ ^« *« '"s^ ri|ht To' Obstacle . the way, o^f the 1^:;^:^^ o^tVaLr^^ ^"'^ " 2nd.,{?,t.^;^^f«^"^h>TrintyTer^^ James Simpson, Plaintiff, Lieut, a Pooley, & j. sf, Oeiendants who were , > This wa; ' acting in obedicn .was an action brought to r- hav^Vl^"'^^''"' ^'°^ ^ trespass said to have been comitted by the Def^n in, / ce .0 ,ho orders of their /om^°t:^'j?^: n once fully justifi. 'a tor a moment, It Sparks, oriffin- ^ of Col. By; for fn •necessary for the !• remuneration.— cument produced nat he had been in every way 'ase of his pro, ^ana], passing so much so, as o any amicable rously so, when >r the whole pre- )een appropriat- ::re! By the issue ivv proceedings, inledout by the ' recommended efused, and de- he Government reviewing the persons should t> as to advance lost cases alto- e most simpit explicit deci- he Command- n of lands for ovvs, is more 'eing the pos- trusted y^iHx ed in the per- t to another »f the right of ■Is necessary ds lying con - his right to fnay find en ught to re- »ass said to defendants, nding Off,. cer Lieut.Col. By, in «intfring upon the close of the I*laintitl,and mailc- ing out lands for the service of the Rideau Canal, and also, for taking materials lor the construction of the said work from the land in dib- pute. It must be borne in mind, in the recital of this case, that the Plaintiff was one of the firm of Ilykert, Simpson & Co. contractors on the Line of Canal, who failed in the fulfilment of their contract, which was again let out to other persons, agreeably to the provisions of a clause in the Contract most explicitly laid down. It is also proper to be remarked, that the Plaintiif, as one of the firm of Contractors, had worked a quarry, at a distance from the Canal, and which was situat- ed on a lot of land the proprietor of which, was not known. This quarry supplied stone for the Locks, and other works, at Merrick's Mills, Edmond's Rapids, and Smith's Falls. The labour and ex- pense attending the quarrying, and dressing of the stone, Simpson was paid for, while he was a Contractor, as ' appeared in evi- dence, on what was called progress measurement. The land was held in joint Tenancy by the Plaintiff, and formed part of the Rideau Canal, usually Known by the name of Smith's Falls. He prosecuted to recover damages for the land take*, for the Rideau ser- vice ; complaining, that it was of greater extcnt,tiian necessary for the purpc;;es of the Canal, and attempted to prove the said appropriation, to be wholly unauthorized by the Act of the Legislature ; and also, for the value of the materials taken from the said lands, which were used in the construction of the Canal. The declaration in this action, contains two counts, common in actions of trespass; the one for entering a certain house, and close, the property of the Plaintiff, and the Rccontl, for taking away stone, puddle and other materials for the service of the Canal. In regard to the land required for Canal purposes, the evidence in this action, on the part of the Plaintiff was precisely the same, as that advanced in the previous case (and therefore need not be recapitulat- ed.) The Plaintiff complaining, that it was too much, and that Gov- ernment Stores had been built upon a part of it, which he insisted were not required for the service. In answer to this, it was given in evidence by Col. Durnford, and Col. By, that no more land had been taken by Government, than was positively necessary, for the proper completion and preservation of the Rideau Canal ; and Col. Durnford particularly stated, in givmg his evidence, that in his opinion, the quantity that they were now in possession of, was barely sufficient for the purposes of the Canal, and, that Lieut. Pooley, in marking out the said land by boundaries, had acted strictly in obedi- ence to the orders he had received. in respect to materials, it was proved, that ia the article of Pud- dle, that which was appropriated to the service was obtained from land set apart for the service of the Canal, in conformity to the Act, and, that no puddleof sogood quality,or so conveniently situated, couid be obtained. And in regard to the stone obtained from the quarry, and dressed by Mr. Simpson, for the Locks at Smith's Falls, it was shown in evidence, that the quarry had been opened by the Gov- ernment, and that the stone thus obtained, was bona fide the property of the Government ; and that the Plaintiff had been paid for the quar- r jT'ng and dressing off I, Id »'.rernent ,, has been a^rendvt?'. ^'^ ^^^'«^ ^' «^alJed atthetna^fhatMr.Simnc^l^'/'?^^^' and it also oU Mittl cbi "Tipson's object, also pj cleai'Jy appeared (o Governmeft'ti",;: ""/"-^ "''-^^ ^o .•'n7bJe''h|;^^".7'-''".-/hesaidTtS::";o J'^W's this, and to ubcbM •''''' ''^"'P'v detailed in /. ^"'^"'^•slances quired; but that ApJit/. *^^^ '" regard to Hn./ "^'"^^"'^y of any ,«very 'obstacle i^s .t' ^""^r^^^ ^'^d been ieUo oth."^''',':'^'^ ^<^^ l^y thePlaintiff Tbp °7" '" <'•« way of Ti '.^"'^'''^''^Is, placed by the Officer i ^'l^^^' '"arked u^ith th. \ ^lovernment , ^vhich the StSSte '^'''"'' to dcsigia c the I ^'^'^ ^''^^^v, I *'ff. and thrown in/o fh."^'"r'^ ^^'^''^ 'orn t 'T"" u '^^^ '^^"'^ P"t down by Lieu en.nfi>'?^'''«^^ost-inimri,('f. !f^ ^'^^ ^'^^i^' ' JJ^Plainti/had iijrh/^^^'^''^ *^'^ "■^''e Government unon ^n '"°'^ ^^"«'"ve lano-ua'Ttn J P^'^^'^nce ; that vants had , arrfp.?n ■ ^^^^^ions ; and hat ffi , • *'^^ '^^y^i^ts of the stances pr;::;r;;"Vrfv^osi.on;of:;!ir:^ his ser! a temporary cessifiZ ? ." ^^'^ execution of ">'ions (o be nevif.M '''"« ''" ""^ PlK^illy lo unrflr ,?''■*'" Simpson b-,,1 |?A """j' °'«l'iowed speaking, were nAt ''""">S«s, done to Ja„rt, ^ , '■'='=°"ring- ex- tice charc-ed th^ t ^ " ^^^ construction nfihi ? "' ^^^^ to that P^ovinciafAe tnfe r»''?"ffver/lovved most ex- 'cd to be along- cn- 'nd fence "s action cring- ex- •aratively "orks of ' statute, "cause it iation of to that hiefJug vers the he was Jong as ^e Jury >nients, 'howed that the inhabitantsof the Country, as well as the Court, acknowledir^ ed the sufficiency of the Act. The case which folloivs wose solX out of the foregoing being predicated on the sairorSnsfer oft^^^^ stone quarned and dressed by Mr. Simpson, the former Ph^nifT which was intended to be used, and has since renSedTn^l' Smith's Pair to tiVp?'''V"ft- '^T''''' MillsrE^ond'Spid" d omitn s li..l. ^;.^ i i they were forcibly opposed by individuals, who were eninlovc as s n h contractors under Simpson, (o quarry and dr.s t[rs7n'Xdis,>ut" 1 ;vo days after, the said Oihccrs had been fo ci ly ucvo ec f^m carrying their orders into ctrect, they mode a second at c.nntxvLnn A^fion wL' in'.^nfn ^°'",'?^'"^d ^y ^"y or the persons summoned in this him toE miTt ff Sifn '^' ^"'rT T""'-! ^^ Simpson,& transferred by Su Si;"""'"'' ''"'=° '^''^" '•"•'^. -"" "»•'- -0 of, for .lie rI: particularly on the eroukd fh.f IT ' "P°", '*^^^''''*^ P«^»ts Sut under^ny parSar aieeme'nr'and' f"^' ''^'•" -T'''''^ ^'' could not legally b'etransflrr:^:;^! vert L/^X e ZT' person so eettine it out Thp Chi^fi^.r e Iv*^ ^P^ "y *"* Solicitor GeneraVand after st't^n^thp/r ^'f "l '^""^ ''''^' *^° question, strongl^ rlt^e^dei^fh Ha'S^W^^^^^^^^^ t'oTk^ V' ^ suit, who not feeling satisfied, insisted upon ts ITe to tl p t. T ch Simpson rposes, and abandoned isure all (he 1 the works inipson had leir orders j'cd us sub- in disjjule. ?nled from t, wlien to re resisted sons stone, altliough lie Pluintili' ncd in this isferred by 5tone they r* works at The main n question 'ervice of Br the said y, and for ) Plaintift; )r the Ri- *s own wit tion, in as d been in clear was called no I part of d points terial got purpose, by the with the upon the e a Non- Jury, (a le of the he Judg- d in his Law ana s. The recom- le Plain- re being actually Si transferred to the Plaintiff, and that he had allowed Simpson in his ar counts a certain sum forjthe same.and there being no ev dence n "due ed on the part of the Crown (the case being so clear n every noint' ?ho P."- rff ''yL'^'^'H '^'' ^'''y ''''' '"''"^^^j »« -^^ " " a verdict ?«; tJ\ f\ r^^'i ?"'•"[ '° cor.trary,o Law, to the evidence pro duced, and to he Judges charge, was reserved f^r the consicSion of the Judges in Term, where all verdicts of a si.nilar nature, are discus. unVo?fr'''nV"','°?^'T^'- '^^^^ aside the judgement is cnS up for the Defe.Klants, the same, as if the Jury haJ returned aTordfct in their favor when the party can re-try his cause at the next s th'nTs whg indeed IS seldom done, in cases where the Plai-ntiiTs own wlu ncsm prove hnn to be in the wrong, and it may be safely said theil never was a stronger case in point, tllan the present ^ ' Before entering upon the actions, that remain to be spoken of it is necessary to state, that they were brought by individuals residlk/n the 1 own ol Bytown and were instituted from verj^ilfercnt moUvcs ^from those wo have already gone through, as the details wiU sho v'l| ^Bytown, is situated upon land which was purchased by Earl Dalhouie hen Governor in Chief, for the use of Government wLn the R^! dcau Canal was firs conten.plated, This land was purchased, not only on accoun of Its offering the most favorable site for the fir ? eight Locks of the C^na ,but aIso,as affording a valuable locality for a ViE cord.*' ^T ^^^*;^^^^'"S of artificers, .pother necessary assistants. Ac-' cordifl^ when the work was commenced in the Fall of 1826, it was placed in the hands of Col. By, with orders, to have it correctly 'survTv. ed aiKllaid offin lots of certain dimensions, to be granted accmding {o of- Two Si ", .^^"^^'•r " P^^'"^"* "^ «» «»»"«» S'-o»»d rent to the Crown Hi^r ^'"'-.'"S' ""^ -'^^'"'^ ^t^^""S- The^ Location ticket to c^n" tain the positive condition, of erecting a house within twelve month" covering no less than thirty feet square of ground, to be placed on the line of street, according to a plan to be made of the same. As soon as I'l^kotr'^ ;vas completed, & the lots ^ streets marked out by stakes & ' p.ckets,mo9t of the lots,in what is now called the Upper Town,were ira- swamu and'^b."l "^H '''S ^7"" ^^T' ^^« * ''n, one contLTd swamp, and the land considered not worth having. But in the Spring following, when the place was cleared, preparatory to the commence? ment of operations on the Canal, and an' establishment of woTshops made It absolutely necessary to drain this swamp; form a road through It and construe a wharf for the landing of Government stores, UbS ken ,r ^7*1 ""^''■"'"'M*^''^*/ great many lots were iminediateiy ta- ken up, at the same rate, and under the same conditions, as those in, ed fe' ''''"• S",^\^q"^?tly, as the ground was still further cLlr! for'a tr P-?r °^ ''"\»d'"g Barracks, the advantages it possessed '31 t^the Government that any part of it had beeneranted in n«rno. a^ntinX's':t''.!T'"'''"''^''" °;^''^^' '^'^ hereafter, instead^of tn^ll/ t- A^'T' ^""^'"' ''^^ heretofore, the lots remaining un- upon which they were granted, should be leased for the term of thirty •m II yeaA, (o inch pcraohs m might bo willing to pay an adequate rent lor them; the lea'^es to he renewable at the expiration of the U rui, fit an increased rent, nt exceeding one fourth of the original rent. In con- sequf^nce of this order, » groat many lots were disposed of to the hH^hest bidders, at differeTF rents, according to the supposed value fri.'fn the situation, or other advantages they seemed tu possess. A considerable diflbrence thus exists in the rents, paid for lots in Bytown. The lowest sura paid since the original grants being one pountJ sterling, while some are let so high as ten pounds. It may bo proper to mention, that those rents were placed at the disposal ot the Commanding Royal Engineer, by his Excellency the Conimandm- of the Forces, and directed by him to be expended upon public im A\e« mentsfor the benefit of the Town; in consequence of which, the sti\ ■; t;i are well laid out, market houses, and other public buildings, have been erected, and Bytown, is under better regulations, than any Town in the Province. ,„.. In the Kings Bench Trinity, Term First & Second, William 4th. ^ Charles Friel, Plaintiff, ] ' vs. > This is an action of trespass, brought to John By, Defendant. J recover damages, from the defendant, for issuing a distraining warrant, as agent for Government, to recover certaii rents due by said Plaintiff, to the Gov- ernment. The statement of this case, as proven in Court, is as JUows. The Plaintiff, in the year Eighteen Hundred, and Twenty-Seve^took possession of certain lots of land, situate in By Town, and for which he agreed to pay a certain sum annually, to Col. By, acting as aforesaid. The lots he fixed upon, being advantageously situated, a higher rent was placed upon them, than upon the generality of the lots in By Town, but not without the knowledge of Mr. Friel, or without his undertaking to pay. In fact, the rent he undertook to pay, was his own voluntary of- fer, knowing the advantages, the place possessed, over those adjoining. It is usual in granting those lots, for the party to take a lease, from Col. By, which lease, gives the person power to occury for thirty years, provided they pay the rent annually, Mr. Friel iicver too!, a lease, j.:id he being a tenant under the KiUg, held, and now imU' 'r land on • f- ferance. The Plaintiff is a Shop-Keeper. The constable went into his shop, with a common Landlords warrant, signed by Col. By, as agent for Government. He distrained goods to the amount of the face of the war- . itj ahd carefully removed them, and impounded them in some safe, aa, :->r'onkcnt place, of which the Plaintiff had notice. After they had o lots should by any means be held by speculators, as tending greatly to t etard the improvement of the Town. When, therefore, the Defendant nind that Johnston had deserted his lot, and after he had several times efu- sed to fulfil his agreement, he duly notified h'm that the said prem ses, would be leased to Francis Montreule, the present occupier, and on of the defendants in this cause, who has made the stipulated improvcmc ts, and paid Ibo Rent, For thus taking possession, the defendants were j^ .-o- secuted for a trespass. It should also be understood, that Mr. Johnst m, never took out his lease. These facts being fully proved to the Jury, they returned a verdict for the Defendants. The next ease for consideration is one, in which Geofge Lang, Matthew Connel, and Charles Hill, were Plaintiffs, and Lieut. Col. By, Defendant, and was brought to recover damages said to beAis- tained, in consequence of the Defendant having removed summariy||he Plaintiffs and their goods from a house situated within the pale ofTfor ernment ground, and erected there by Defendant for the Public Ser- vice. This action was not brought into Court, but as it exciicd very considerable interest at the time that the transaction which gave rise to it, took place, and which, as a matter of course found its way to the newspapers, and was there pretty freely discussed, with the usual misrepresentation, and mixture of truth and falsehood, I shall briefly give the true statement of the case n 1 «4 Mr. Lang, one of the Plaintiffs ii thu Clmuuinii.j nl u.._ JUA leases a Town lot from the Kin^ U^'^i" tht w '^' ''^'^' built by Mr. Lang and an apartment^.. aSd Vto t'"*; ^hflhl Zl6 bread. Upon this house the Government oxuendPf] T. • i u sura of money, sufficient to render it suitable ibrteCovorn""'. nl^^ house. Mr. Lang hr ving also „,ade some i.rpro;: .^'ts ^ Kt /latf out some money upon the house vrts nPimU to ♦ • ''^ '^'"' from the year 1827 to the yeiL IS-Vq n n ^ * ""'^T' '^ ''^"^ ^'^^ sum he hJd so exper'dcd At the ±i io' ;f%h,-;''"-*'^'r l''"^ '^'' a lease for thirty vears unt'erta' fn! ^ .f . I'^'^'^'^M took out ofiifteen poundl SV ^e^an;;^!. IbSthl^ti ^^n S"' '\ ^"'S on the Rideau Service f C,nt CnC\ .rT i- V ! " Officer ordered n. room vacant i^ t^^. B^'racL t^o g h m ^^7^"' V'"' '""^ fixed upon as the mosteligil.Ie. Accordinr^^r^^^ tTJ ^""^^^ ^'^ to, and agreed to give it up, on condition JhtC.lt ST ^'"^ quora of anj. description, sl,o«H bo so!tl on the Drcrai 4s and if he vi ine necessity otturnmghi;n of], at a moments warnin"-. ine necessity of a restriction oC f hie Jrin-l ■,.,;ii iJ' -^ when itis recollected, that the bJlldlng '^^ J^ rlK^t: Government ground, where the carporSer., an^MSsmSh ton ^e bu.lt, and where the buildings are erected which receC the stores of every descnpt.on, for the Rideau .service.' It unui t ob ei-^ed ha t^d the'u^e^o'fT 7oTl '''VT'''''' '""^^^^'■' '"'^^^-"S'^ ^^^ h;;uVe . klv V,. I , } • ? P^''*^^"'^'- purpose, but upon his obtaining the t^.ff;' tl '^ '"'" r '''^^^^"S^'"«nt with Mr. Connel, one of the plahi- tiffs, w^o was to supply goods, and liquors, and bctw^een them thev en gaged Mr. Hdl the other Plaintiff, to sell the said goods for tlS,n, whom ^ey pu into the house, with a Tavern License. These arrangements selUng spirits without his Knowledge. Rut when the house, was un dergoing some repairs, to mai.e it more suitable for a shop, or Tavern fhewTndow t"^' «aw a bottle of liquor, exposed conspicuously In J?ff « = K- • ,"!.^^'«"^ «nt' PO'»ted it out to Lang, and made enquiry feiTA 'it^'^T *°o«^" ^'^l"«ri" the building, "stating to him,Ti^ Ii! -f r' ^"V^"" Government baker, and needed the' house in tha reSi^. L-r" 1"°*^''^ allowed him to occupy it, atthe same time [nteihnnfASi ,f"^"^'"?'"*- J^'' ^^^'S' ^"^'^^'^^ '* was not his intention to sell, or allow spirits to be sold there, and Col. By, havinc always considered Inm a man of his word #nnt ;t f.r „..„„. i;' i,„!."! speaking the truth and therefore, gave hini:selV'no" fuShertroublCrr teTSlll'T -A^ r "''■; ^^'''^y '^''' *'"« conversation, the Mas- • ter Blackgmith laid a formal complaint before Col By, stating, that it was impossible to proceed with the work, with the reqtjired d^espatch. i5 eT al ByiTJrro, a house was which he sold '■ considerable eminent Bake the \oi,8,' laid- 3y it rent free lursc him the )d,he took out ment the sura )lficer ordered nd there being ;'« house was ; was applied i should pay that Col. By t)stion, for the cly required, cctipy it with t spirits, or li- and if he vio- ulJ be under ite apparent, pale of the lis shops are tlie stores of iserved, that ; had reques- btaining the of the plain- lem they en- them, whom irrangements eral months, ise. was unr , or Tavern, Col. By, in )icuously in ladc enquiry to him, that bouse in that e same time was not his By, having i^^A 1,_ t--.i iixz nets r trouble, or m, the Mas- iting, that it 3 despatch. so long as a Tavern Avas permitted to be open, upon the gov( m ntnent ground. As has been already stated, the building in question, not only stands within the circuit of the ground, exclusively set apart for the sei- vice, but is adjoining to the Government Carpenters, and Blacksmith's ' shops, and in the yard, where all the heavy wood, and h-on work of tlje canal, are prepared, and in consequence there are necessarily em- ployed within that enclosure, some ninety, or a hundred tradesmen, the generality of whom, receive very high wages, and having an easy access to this building, by the back way, through an opening made in the fence, for the express purpose, of decoying the workmen. In consequence, they were enabled to procure liquor at any hour of the day, without the knowledge of their masters, and many of them, were constantly in such a state of intoxication, as to lender them una- ble to perform their daily labour, to the great detriment of the public service. Upon hearing this complaint Col. By went to the house, and instead of finding Mr. Lang, found Mr. Hill in possession. Col. By asked hiiii if he sold spirits, or had converted the building into a tavern. His reply was, " I sell liquor vthcn 1 can. " Col. By then told him, that Mr. Lang had been allowed to occupy the House, for the particu- lar purpose of selling bread, and under the express condition, that he should neither sell, nor suffer to be sold, ardent spirits, or any kind of liquors ; that by the breach of his agreement he had done material inju- ry to the public service, and that, therefore Mr. Hill must quit the buil- ding, in fom-aud-twenty hours, or in discharge of his duty, he should be obhged to turn him out, it being quite impossible, for him to permit a Tavern to be kept in tliat enclosure. At the expiration of the time mentioned. Col. By went again to the House, to know if Mr. Hill had moved. There was not the slightest appearance of a move, Hill wa:; out. Col. By asked his wife, if he inteiuled to quit the building. Her reply was, " tliat she ha:! nctheord any thing about it" ; Col. By then wrote an order to Capt. Victor, desiring him to send a party of soldiers to remove the goods of an intruder from out of the Government Buil- ding, called the old I'lsiginesr Office ; Capt. Victor sent the men, but finding the door locl-.ed, they returned to know if force should be used, Col. By said, that it wao positively necessary to remove the goods ; but desired, that as little force ay po.isible, might be used ; that if they found the door locked, and the inhabitants refused them admittance, it must be broken open. The next morning, after receiving these instructions, ( which made forty-eight hours notice ) a Sergeant, and party, were marched to the door, which they found locked : the Serjieant demanded admittance, which was refused, lie then Avent to the Blacksmiths shop, and procured a piece of iron, with which he forced the door, quietly removed the goods, and when the inhabitants left the building, the door was locked, and the key given to the Clerk of Stores. All was done under the eye of Dal. McKinnon,Esq. a magistrate, who did not see any disturbance sutficient to call his magistcrifd functions into exercise, even so far, as to command the peace, v.hich is sufficient to prove, that theremovalof the goods, was conducted, in such a manner, as not to disturb the peace, of His Majesty's subjects, in the slightest degree. The ffoods were not carried away by Plaintiffs, until two or three days 29 after they were dislodged. They flay, most olthcm were stolen or mh erw.se destroyed ; this, however, ne;er could have been sSantLtS" by^vidence. There were but a small quantitv o( JlTo ^"^f f.'^^^ate*'' the poorest description, yet they oSilld t c^rVosf at krl h°'^ °i pounds; however; after-forcing Col. By to c7urt SUfhlr •*^"'^'''' when the Commanding Officer, in.C duo d W, r^7o" pllt^dT ' had not exceeded the powers vested in him. nis puouc duty, Ihe resoltof the several actions, which have now been detailed prove undeniably that there has been no abuse of powe, tbrouS the whole proceeding. It further establishes indisprnX'the risht of the Rideau Service, and the decision of the Court, demoistrales tl , in every case wherein, his conduct has been called in question he has In every instance where lands have been taken, the proprietors have been fully remunerated, and as far as possible, cv^n the^7nc"nvenienle thPv'hL'rr''' n'' ^%'r^'^'''^ ' f«'- whenever it has been desfred! they have been allowed to resume such portions of their lands, as were not requued for the immediate service of the Canal, by taking aleaTrof heproperty originally held by them, atan annual quitCnt not exceed- hSs funrin""'' V^r'''' P"' ^'l '^' '^"''' *" *^« lessee htserlt .1 v.^n,l^ PP f ' *^'^ ? "° /''^' *»«" '»J"«"«« '^een committed, or in- dividual injury been sustained. The leases here alluded to, contain a ause, explicitly laid down, barring all claims for future damages, ari- sing from the works on the Canal, or in cose of the resumptioS, on the part of the Cro^n, of the property, or any part of it, and^uthorising Its appropriation, whenever the Public service requires it. By these means, damage to individuals has been entirely prevented, and the Pub- lic interest effectually secured. r thup. Sir, conclude my report of the legal proceedings, which have arisen in the progress of your diligent ani successful labors, to perfect the most stupendous work of the age. I have been as brief as was consistent with the task of conveying a just knowledge of facts, whence alone could be formed, just opinions of your conduct, through a long >len, or oth- ibstantiated, nd tho8e of ie hundred with some the Canal, •iment, and on the ac- t is evident edious pro- of the buil- ntly would ■the work- d with the n Militnij )p Keeper, itar/ kw, Majesty's damages, jlic duty, detailed, hroughout e right of juired for ates, that he has his duty, 87 course of most arduous trials, and unparallelttd difficulties ; and shall be most happy if it serve to impart to the Honorable the Board of Ordnance, as thorough an understanding, as here, uninversaily exists, of your in- defatigable, and judicious endeavors, to promote the general prosperity. I have the honor to be, Sir, Your most obedient humble Servant, J. N. HAGERMAN, Lieut. Col. By, ) Solicitor, Rideau Canal. Commanding Royal Engineers, Rideau Canal. ><^ ■■( )n iters have ivenience desired, as were a lease of t exceed- Qself. It ed, or in- contain a ges, ari- n, on the thorising By these the Pub- ich have > perfect as was , whence 1 a long