e> IMAGE EVALUATION TEST TARGET (MT-3) // 1.0 i I.I 1^ Uk 125 2.2 1^ IIIIIM 1.8 11.25 1 1.4 i 1.6 vl e n 7 0> -^ Photograpmc Sdences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 a\ h N? k «• '^ S 6^ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques |n the f uptcmc €mt\ aC the |1ioi:thire$t iettitaries. APPEAL TO THE COURT IN BANC FROM THE JUDGMENT OF THE HONORABLE MR. JUSTICE ROULEAU. COUNCIL OK THE CITY OF CALGARY, AiTELLANTS, AM) THE CALGARY GAS AND WATERWORKS COMI'ANY, Rkspondknts Appeal Book MR. J. iV SMITH, Q. C, ADVfUATK rOK Al'PKLI.ANTS. MESSRS. MUIR and JEPHSC ADVOCATKS KCIH KESl'OSnEMS. 1897 TllH, \LltPKTA ThIHINE PhBSS, Caljfiiry. Alberta. INDEX. Style of Appeal Notice of Appeal from Court of Revision Formal Admissions on hea.iny of Appeal before Rouleau, J 5 Copy of Assessment Roll and, Notice of Assessment (referred to as Exhibit "A") 6 Judp;e's Notes of Evidence, etc Exhibit "H" (referred to in Judge's Notes) '. . . Contracts and Hy-law Agreements referred to in Judge's Notes Judgment of Rouleau, J Notice of Appeal to Court m banc Order re Appeal Clerk's Certificate 7 9 10 15 20 22 24 25 199445 |ltt the f uprcme ioutt af the Jlorthut$t (Jctritorics. /;/ th( matter of the appcul of the Cah^ary Gas and Waterivnrks Cmn/'any from the ilcisinii of the Court of l\(vision of the Corporation of th. City of Ca(!,nirr in res/'rrf to the assessment of Lots Tier ntj- six to Thirti-tiro, both inelnsive, in Block lilexwu, Section Sixteen, in the City of Calgary, Assessment Xo. a^-j. Hktwek.n THE COUN'CIL OF THE CITV OF C.\I.(;.\UV, Afpe/'ants AND lO THE CALGARY GAS AM) WATERWORKS CO.Ml'AW Respondents. •II of tin- , lion tints knts. NOTK 1", OV .\l'l'i:\I. I-ROM (OIKT OF RKVISION. Tu Tlir. ClTV Cl.KUK iH< TIIH C'HV (>!■ ('.M.dARV : TAKK NOTICK THAI" The ( al^'ary (las and Waterworks ( (.mp.uiy, I.imitc.l, bcin^,' dissatisfied svitli the deeisicm of the i'mn of. Revision of said City of CalLjary respecting; the the assessment ( No. 873 ) for the year 1S97 of Lots 2C1 to 32, iiKliisive, Mlcxk I I, Section 16^ City of ("al^'ary, and of the building's and otlier improvements, inchi(h'n,L; the mains allcijed to be attached to tiie pmnpini^' station situate on said lots an I extending' tlirou^'h an 1 underlyin^f the public streets of the City, assessed as real prc)|)erl\' al the sum of $100,3 I 5.CW, and the said C(impan>- iiereb)- appeals and ^ives notice of tlii'ir intention to appjal from the said iltcision of ID the Court of Revision ti. the Judj^e of the Supreme Court of the Northwest Territories at Cal^ar\-, having jurisdiction in said Cit)- of Cal;;ar\-, on tlic foUowini,' 5,'rounils ,imoii^,'st others : 1. That said assessment is too hv^h. 2. That said mains and water pipes exlendinj; throiij^h and imdcrlyinj; the public streets of the City ;ire exempt from taxation. 3. Tliat said mains and water pipe^ arc not under the agreement in respect tliereof between the Coin])aiiy ami the City liable to be assesscil. 4. That said lot-, building's, iinpr.-, ci.u'iits, m.iins and water pipes are not assessable, nor is tile sftid Comp.my iable to be ;■ scssed in res])ect thereof, but the shares of tiic said Company representing; said property are alone assessable. 20 30 5. The saitl mains ami water pipes are not real property and are not assessable as such. 6. The said mains and water i)ipos are not assessable with or as part of said lots, or as im[irovements on (tr in respect of said lots, or otherwise. 7. The said mains and water pipes arc not sufficiently described and particularized, nor does said assessment state the value thereof, anil 'aiil as'-essment is not made in accorelance with the prt)vision of Ordinance No. 33 of 1893. 8. That said assessment is not according to law. UatI'.Ii the seventeenth day of March, A. D. 1897. "THK CALGARY GAS & WATKRWORKS CO, LTD." "MUIR & JKl'HSON," Theii .Advocates and Agents. ADMISSIONS. On the appeal from the Court of Revision for the City of Calgary by the said Company against the assessment of Lots 26 to 32, Block 1 1, Section 16, the following admissions were made : 1. That the paper marked " A," filed herein, is a true copy of said assessment as it appears on the Assessment Roll, and as the saine was made by the Assessor and confirmed by the Court of Revision. 2. That the notice of the said Company's appeal, filed herein, was duly served as provided by the Ordinance No. ^^ of 1S93, but not the sufficiency (in law) of the notice. 10 Dated the day of- ■1897. "MUIR & JEPHSON," Advocates for the Appellants "J. B. SMITH," Advocate for Respondent. ipany ; were as It ed bv vided EXHIBIT 79 ASSESSMENT ROLL FOR THE YEAF 8/3 NAM1-; OK lAXAHl.r. I'liHSON. Calgary Gas & Water Works o CITY OF CALGARY— NOTICE OF AJ Name— Cai.c-.akv Gas & Watkrwokks Co. Date of Assessment — Dec. 31, 1896. NuinhiT of Asscssiiu'nt 873 16 I I 2h to jj inclusive. Total Niimher rif IIntiseholilcri>, Value of I.nt or Parcel Without Iinprovcmfiiis. 3»5 Hiiilitiii Inipi ( Itu-liulin w.itcr |>i| tlu-ptimp iiatr oil exti iuliiij> luulcrlviii strttls of TAKE NOTICE that your Real and Personal IVopcrtv and Income have been notice to the Clerk of the City on or before the 15th day of February next. isse.^sed EXHIBIT "A," 1897 OR THE YEAR 1897 FOR THE CITY OF CALGARY. of r,f)t or • WilluMlt vLiiicnii. $40 40 40 40 40 40 75 Value of K'-'ldings and Oilur Iiiiprovcnu-iits. 'rot:il Value of Ileal Property. Total Atiiount n{ A>sessriiL-nt of riihlii School buj)porter.s. $100,000 i $100,315 $100,315 Date of Assessment, 1896 Dec. 31 Date of Delivering; or Posting N'otii-L'S. 1897 Jan'y 25 REMARKS. Assessmcrt on improvements includes mains and water pipes attached to the pumping station situated on said lots and extending through and underlying the public streets of the City. ?Y— NOTICE OF ASSESSMENT FOR THE YEAR 1897. Address — Calgary. Date of Delivery or Posting of Notice- -, 1897. \'alue of Lilt or I'ariil Willi. .ut Irnprovcmfiils. Value of IlnilUinKs and Other Improvements. ( Inilndin^' mains and water pipis altailied In lliepiimpini; slatii.ji sit- iiate nil mm!i lots ami extindinj; llir.iiijrh and nnderlviiig the public streets of the City.) 315 I 00,000 Total Value of Real l*roperty. 100,315 Value of AsscssaMe I'l-rsniial I'ropertv. Amount of Income Assessable, Total Amount of Assessment— I 'nblie Sehooi Supporter. Total Amount of A ^sesssment— Separate School Supporter, 100,^15 icomc have been assessed at the above figure. If >-ou wish to appeal from such assessment, you must Five prooer of February next. CHAS. McMILLAX. As.SE.SSOK. JUDGE'S NOTES. Cai.(;akv, 28th April, 1897. Appeal from the Court of Revision in respect to the assessment (No. 873) of Lots 26 to 32, in Hlock 1 1, Section 16, City of Calgary, by the Calgary Gas & Waterworks Co. Mr. Chas. McMim.an, City Clerk. Mk. S.MITll for the City. Mr. .VIuir for the Appellants. Appeal on assessment on the follo\vin<^ .i.;ruu ids (see Notice of Appeal.) : Copy of As.sessment Roll filed by consent as the correct copy of the Assessment Roll. 10 Exhibit " A. " Objection t.iken that the Notice of Appeal is n >t entitled in the Supreme Court as required by the Cit>' Charier. EVIDENCE. Gkokc.K AI.EXANDKU on nath, says : Am {'resident of the Co. No additional improvements on the lots fiom Ust \ ear. A de- preciation of 15 per cent, would be about what would be a fair average on the buildings and lots from last year. The mains run along the streets under and outside of the City. One-sixth of them go beyond the City limits. They form one continuous main. Without tlie franchise and right I have the value of those m^iins would be about the value of old iron. The expense 20 to take them would render them valueless. The franchise is got by a contract with the City. (Original contract to be put in.) 30 Cross e.xamined : No objection taken as to the value of the lots. Consider that the buildings, pumps and machiticry on the lots are worth this year $4,600.0), as against $5,420.0) in 1896. Consider, • - I said, there is 15 per cent depreciation since last year. There is no difference in the mileage of the mains since last year. Think I said there were 9 miles of mains and service pipes, 01 about 8 miles About 'i outside of the City. The mains are connected with the pumping station as last )ear. The mains arc connected with the pumps 7 feet from the surface. Phc capital is somewhere about $150,000.00 for the whole plant and pipes. The service pipes belong to the owners of the different lots. Can't say how much was invested in the franchise, because it was before I had anything to do with the comjjany. The franchise includes the power ;[ranted by the City and the Ordinance. Do, .'t know how much was paid for that franchise. (I'aper Exhibit "B" in previous case to be put in.) There are about 6o'oOo shares outside of these shares; there would be about $80,000 worth of bonds. 97- 6 to 3_', t Roll. 'ouit as A de- igs and le-sixth anchise jxpense iic City. ips and iider, " > mileage ^ipes, oi umpinj^ capital ilong to cause it ;[ranted (I'aper f these 8 ( Exact copy of the Assessment Roll to be put in by consent. Re-cxamincd : Kach customer is connected to the mains by a pipe. The franchise was purchased from parties who had already obtained it from the City Exhibit "H" did not show the actual value of the lane's, mains and other improvements, as it included the contracts they had entered into and the franchise. Evidence closed. Mr. Muir refers to my own judgment in the appeal last year. (Appeal Hool;, p. 9.; Facts: One-eiRhth of Company's pipes arc outside of the City Umit.s, and forms part of the continuous 10 main in the City limits; 2n(l. That all the Company's mains and pipes after leaving the assessed lots in question pass through and underly the public streets of the city; 3rd. I'.xclusive of the Company's right of franchise in respect of said mains and pipes and the public streets, said mains and pipes are of no value; 4th. That said right or franchise has not been assessed and that it is not as.^essable; 5th. That the supply pipes are the property of the consumers and are attached to the Company's pipes and t(, the buiklings of the different consumers; 6th. That the only property of the Company as.se.s.sed under the present assessment are the lots, the buildings, machinery and improvements thereon whiah are of the value, viz: 20 Lots $ 3 1 5 00 Buildings 1,500 00 J'umps 2,500 00 Bf'ilcr 1,200 00 Well 100 00 I^'ence 20 00 Main pipe and connection. 100 00 Total of $5,420.00 not including the luts. Depreciation, $820.00. 30 Mr. Smith's arguments: No valuation of the franchise. Franchise not asses.sed. Fif- teen per cent, depreciation is too high. A.ssessment does not include anything outside of the City limits. If personal property, I have power to amend Roll. Same cases as already cited C. A. V. JUDGMENT. Appeal allowed and assessment reduced to $5,735.00. "CHAS. B. ROULEAU," J. >. C. EXHIBIT "IV' AS KEKKRRKD TO IN IIIK JUDGE'S NOTES. Dec. lo, 1895. H/S IVORS ll/r The Mayor of Culinary . SiK: — III reply to your rcc|ucst for a statement of the particulars discussed at the mectinj^ of the special committee re. waterworks, we bc^ to submit the following replies to your ques- tions ; Cost ok Work.s — The cost of the Waterworks to date has been $170600, represented by bonds, shares full)' paid up, and indebtedness f)r advances. The bonds arc payable in 1900, with interest at 6 per cent. Interest on the shares is calculated at 5 per cent. Hank interest, 10 in view of the proposed arrangement, is calculated at 6 per cent., though hitherto more has been paid Rkvknuk — The number of consumers is over one luindrccJ, and the aggrcj^ate of water rates under payment at the present time is $12,020 per annum. Of this the City and Govern ment pay $5,500, and the remainder is i)aid by private consumers. Our rates for private resi- dences, including out-door service and all domestic requirements, are from $36.00 tn $40.00 pe^ aimum, according to size, with the few exceptions in cases of extra large hou.ses or very distant services. This rate repre-ents a reduction from the schedu'e, as \ou will see by comparison with the .several items contained in the latter The rates above mentioned are regularly paid and the aggregate sum of $12,020 contains none but services actually under present payment. 20 Size and Capacity of Boii.ers and En(;inks— The pumping plant is duplicate and in the highest state of efficiency and repair. It consists of one Hrown pumping engine c^"" pound service, condensing high pressure steam cylinder, 8 inches diameter; low pressure steam cylinder, diameter 16 inches; .stroke, 16 inches; water cylinder, 8 inches diameter; troke_ 16 inches. One compound direct acting duplex pumping engine, high pressure cylin ler, diameter 12 inches; low pressure cylinder, diameter 20 inches; .stroke, 12 inches; water cylinder, diameter 10 inches; one boiler, 16x60 inches; and one boiler 14x54 inches. The total pumping capacity of above plant is between ij^and 2 million gallons per 24 hours. The present amount of water supplied per 24 hours is under 300,000 gallons. The amount of mains now laid, not counting seivice connection, is over 8 miles, but at short notice it is difficult to arrive at it with XO close accuracy Working Expen.ses— The amount of coal used is at the rate of under (?) under $865 per annum; being less than 1,300 pounds per day, or zn tons per annum, which would cost $865. A fair computation for wages of engineer and night fireman is $1,000 per annum. Our arrangement has been that the engineer should, in addition to taking charge of pump station, take charge of the laying of mains, so that some proportion of his salary is chargeable to capital on account of extensions. F^or such expenses as oil and repairs and extras as charge- able upon running expenses, we find $200 a sufficient allowance per annum. 895- meeting ur ques- :nted by in 1900, interest, lore has >f water Govern ate resi- .0.00 per ,' liistant nparison rl)- paid laymcnt. rate and ne c^"" re steam roke_ 16 liameter liameter capacity lount of laid, not t it with ^865 per jst $865. n. Our I station, ;eabie to charge- 10 Tkrms — The actual iiuIebtcdiR-ss of the ('oiripaiiy at the rates of interest above mentioned represents an annual chart,'e of $v.4.?o, which must necessarily represent tho rental in any arranj^ement for lea«iiij(. The proposal iliscussci! at our last niectini^ was for a lease by the City from the Com[)any of the waterworks s)-stcm for a term of 20 years, at the above yearly rental, with the rijjht of the City to purchase at any time from the Company the entire business at a caiiitali/.ation of the said rental at 5 '4 per cent ; as the City could borrow the necessary capital for this purpose at 3 ^i per cent., or two-thirds of the capitalization rate, there would thereby result a net ^';.in to the City of one-third of the entire rental, or over $3,000 per annum The above particulars cover the points of your in(iuiry, but any other information rec|uireil 10 we shall be hajjpy to furnish. Yours trul)', "CALGARY GAS & VVATKRVVORKS CO., LTD." Signed, G. Al.K.XANDKK. ORIGINAL CONTRACT AND HY-LA\V RKFKRRI'.D TO IN TlIK JUDGK'S NOTKS. liV-I.AW NO. III. A by-law to fjrant the consent of the Mayor and Council of the Corporation of the Town of Cal- gary to the Calgary Gas and Waterworks Company, Limited, hereinafter called The Company, to break up, dig and trench so much and so many of the streets, roads, sidewalks, walks, pavements, 20 squares, highways, lanes and public places of the Corporation of the Town of Calgary, for sup- plying water, as are necessary for laying the mains and pipes to conduct water from the works of the said Company to the consumers thereof, and to authorize the Mayor and the Clerk of the said Corporation, on behalf of the said Corporation, to enter into an agreement hereto annexed marked " A," with the said Calgary Gas & Waterworks Company, Limited. Wheke.\s, The Calgary Gas & Waterworks Company were, by Ordinance No. 22 of the Ordinances of the North West Territories, pa.ssed by the Lieutenant-Governor in Council in the year 1887, duly incorporated as a corporation for the purpose of supplying the said Corporation of the Town of Calgary with gas or water, or with gas and water; And Where.vs, Hy the .said Ordinance it was provided that the consent of ♦ihe Mayor 30 and Council of the said Corporation of the Town of Calgary should be first had and obtained ^ mcntioncil ntal in any asc by tlip ove yearly ire business L- necessary here would per annum on required LTD," ,NDKK V-, ^x \ ^^^--^>-^' own of Cal- ompany, to pavements, ry, for sup- 1 the works le Clerk of ent hereto 22 of the Lincil in the Corporation the Mayor i obtained tl before the said Comijan)- should h;ue the ri^ht to break up ami trench so many of the streets, roads, sidewalUs, w.ilks, pavements, squares, hij,di\vays, lanes and public ])laccs of the said Cor- poration, for su|)j>l)-ing water, as mi^du be iiecessarj' for la)itig the mains and pipes to conduct the water fr(jm the works of the Compan)- to the consumers thereof; And \Viii:ki:.\->, The said The Calgary Gas & Waterworks Company, Limited, have aijplicd to tlie saitl Mayor and Council of the said Corporation for their said consent t'^ '-ty water pipes and for the supplyinj^ to the s.iid Coiporation for public purposes; And VVhi:kkas, The said Mayor and Council, by Hy-law passed on the 28th day of October, 1SS8, sif^nified their willingness to give the saitl consent to the said Company for the 10 puri)ose of laying water [lipes, and for the supplying of water to the said Corporation as afore- said; Provided, Tliat the said The Calgar\- Gas & Waterworks Coinpany, Limited, should enter into the preliminary agreement annexed to the said H)'-law and marked "A." And Wiikkkas, B)- the liy-law it was recited that it was for the benefit and advantage of the saitl Cor|)oration of (?) the Town of Calgary that in addition to the said consent being given for the pur[)oses aforesaid, that the Ma\or and Clerk of the saiii C"ori)oration, on behalf of the said Corporation, should be authori/ed to enter into the prcliminarv agreement thereto jMinexed and marked "A," with the said The Calgary Gas & Waterworks Company, Limiial. And Wiierkas, Hy the said B>-Law the consent of the Mayor and Council of the Cor- 20 poration of the Town of Calgiryw.is gi\ento The Calgary Gas iSr Waterworks Company, Limited, to break uji, dig and trench so much and so many of the streets, roads, sidewalks, walks, pavements, sciuares, highwa\-i, lanes and public places of the Corporation of the Town of Calgary for suppl_\ir.g water as were necessary for la>'ing the main;-; and pipes to conduct water from the works of the Company to the consumers thereof doing no unnecessary damage in the premises and taking care, so far as mav- be, to preserve a free ami uninterrupted i)assagc through the said streets, roaiis, stpiares, highways, lanes and [niblic i)laces, whilst the works are ill progress, and the suppl)ing of water to the said Corporation for public purposes. And VVhekkas, Hy said By-Law it was enacted that the Mayor and C"lerk of the said Corporation, on behalf of the said Corporation, should and were thereby authorized to enter 30 '"to said preliminary agreement, and to duly execute the same with the said The Calgary G is & Waterworks Company, Limited. And Wiikkkas, Under the powers conferred upon them by the said By-Law the Mayor and Clerk of the said Municipality did execute the said preliminary agreement which was annexed to the said By-law and marked ' A " And Wiikkkas, By the .said preliminary agreement it was provided that the said Com- pany should employ Thomas C. Kecfer, or some other comi)etcnt engineer, to pre[)are plans. specifications and details of iheir scheme, including a proposition for flushing services for the said Corporation; after which the said Corporation should enter into a final contract with the said Company for the construction and running of the said Waterworks. 12 lO And Wiikkkas, The said Company did ciTi[)loy the said Thomas C. Keefcr for the pur- pose aforesaid, and did obtain from him plans, specifications and details of their scheme for said pro[)oseti Waterworks, Including a proposition and rate for flushinj^ services. And Whereas, The Mayor and Council desire that certain alterations, additions and modifications should be made in saiil plans, specifications and in the terms of said preliminary aj^reemcnt, which desire has been conscnteil to b)' the said Company, and the said Cor[ioration and The Company have agreed ui)on the terms of the contract hereto annexed marked "A.' Now, TlIKUKlORE, The Maj'or and Council of the Corporation of the Town of Calgary enacts as follows: "That the Mayor and Clerk of the sai 1 Corporation, on behalf of the said Corpcjration, be and they a>'> hereby authorized to enter into the agreement thereto annexed markctl ' A,' and to duly execute the same with the said ' The Calgary Gas & V\'aterworks Company, Limited.' " This Hy-!aw shall come into force immediatel)- upon the execution of the said agreement hereto annexed marked " A," by tiie parties thereto, Done and passed in Council this 12th day of November, A. D. r889 Signed, D. W. MARSH, Mayor. Signed, E. P. DAVIS, Clerk. 20 I HEREBY CERTIEV that the foregoing is a true copy of My-law No. 1 1 1, of the City of Calgary. [ SEAL CHAS. McMillan, City Clerk. the pur- chemc for itions and rcliminary ir[ioration d "A." r Calgary f the said D annexed atervvorks igreement [ayor. Clerk. he City of Clerk. SCIIKDULE "A' lO UWKl.l.INC IIOUSK IN(I,UI)IN(; ONK n.\TII AM) WASH liASINS per year One to two rooms $10 00 Tlirec to four rooms 12 00 Five to six rooms 24 00 Seven to cit:;lit rooms 32 00 Nine to tjn rooms 36 00 Kleven to twelve rooms 40 00 Thirteen to fourteen rooms 48 00 Fifteen to sixteen rooms 54 00 Over sixteen rooms, each ailditional one 6 00 Houses occupied by more than one famii)', each aiiilitional family I 2 00 nOAKDINC llOUSKS INCI.UliIXi; ONK FiATll ANF WASH liASINS per year $3 1 00 40 CO Seven to eij^ht rooms 44 00 Three to four rooms I'^ive to six rooms . . Each additional room. 4 00 20 40 OTllKR INSTITUTIONS. IJakcries $ 80 00 Hanks, inchidin<^ one wash basin 40 00 IJanks, if used in chvellinf^s, per room additional Barber shops, iiicludint; one wash basin for each ch.iir, first chair Additional chairs, eacli Bars Baths, first one Baths, each additional one 30 Book bindery, ten persons or under Book bindery, each additional person Buildini; purposes, brick work permit Buildinsj purposes, plastering, per hundred \ards Churches C'i^ar factories, ten persons or under Cigar factories, e.ich additional person Confectioneries, restaurants, oyster saloons, fish and meat market stalls Dj-emi; and scourinj^ Forges, each Hose for gardens Hose for sprinkling streets or pavements, per foot . . Hose for washing pavement, 25 feet or less 40 00 to 20 00 to 40 00 40 00 10 00 to per year to $100 00 to 60 00 4 00 10 00 8 00 100 00 17 00 12 00 20 00 1 00 50 00 I 00 60 00 20 00 I 00 100 00 100 00 14 00 30 00 90 14 0" 14 I lolels, cadi room IlydiaiUs, fire I I vdranls, hr)ists , ' , • 40 1 .aiimlrics ^ (Offices '° I'lioto^napli ij.illerics -° I'riminii ol'tkes, accordiiii,' lo nuinhcr of presses, ( not steam power) 33 I'ublic halls -° Schools, (lay, public and private, each 100 scholars 10 Schools, da\-, public and private, under 100 scholars Schools, hoarding', each room Shoi>s, accordin;4 to number of hands -° Shops, if used as dwellin^f houses, extra Si)rinklinL; i^ardens (privatcj 3 Si)riid ini( i^as or water, or both, for layinj; the mains .mil pipes to conduct the cjas or water, or bcjth, from tne works of the said Company to the cm- sumers thereof. 20 30 And Whkkkas, The said Company have applied to the .said Mayor and Council of the said Cor[)tiratioii for their consent to la\- water pi[)cs; And Wuekeas, The said Mayor and Council by a Hy-law dated 2Sth October, 1 8S8, gave the consent to the saitl Company, for the pur[)ose of laying water pipes, provided that the said Company enter into the preliminary agreement annexed to said By-law. And Whkkkas, The said parties of the first part did enter into the said preliminary agreement, and it was necessary to have the final agreement executed between the parties hereto, as proviiletl in the said preliminary agreement, for which purpose these presents have been prepared, to be executed so soon as the parties of the second part pass the neccs-iary By-law, authorizing such execution. And Whkkkas, Such By-law has been passed, as evidenced by the By-law or copy hereto annexed. Now, TiiKKEKOKK, THIS Agkkkmknt Witnkssktii that the said parties of the fir-^t part in consideration of the premises, and of a By-law passed by the said Corporation granting to them, the parties of the first part, the righrs and privileges hereinbefore mentioned, hereby indrecl and '-U, hrec of the ; year 18S7 )I1 vvitli !/,lS the M;i\or id obtained the sticct>i e said ("or- : mains and tf) the c.in- incil of the :ober, 18S8, cd that tl'c preliminary tlie parties isents have e iicccs-:ar\ copy hercti of the first Dn gran tin;,' led, hereby i6 10 ff)r themselves, their successors iind assi^Mis, covenant, i)romisc aiul a^'ree to ami with the said Corporation that they, the said ])arties of the first i)art, their successors ami assi^'ns, shall and will not, at any time, char^a* the said Corporation or the nihahitants thereof any hifrher or ^jreater sum lor water supplied to them, or an)- of them, than is mentiom-d in the schedule hereto annexcil marked " A," and that any increase over the rate so named shall entitle the parties of the second jjart to forthwith acijuire the works on the basis hereinafter mentioned, but vvithout bonus, without affecting,' any other ri^^hts or remedies that the said jjarties of the second part ma>- thereupon liave under this aj^reement, ami for the consiileration a'"oresai(l the ])artics of the first part hereby also covenant and a;_jrei to ami with the said parties of the second part that any rights and privilet^es which m;iy be jrraiitcd to them, the parties of the first part, by the said Hv-laws, shall be forfeited, cancelled ami aimulled, and become absolutely void, and the saiil parties of the first i)art shall have no ri^^dit in any way to make use of the said mains or pipes, unless the said parties of the first part, their successors or assi<;ns, shall and will on or before the first of September, 1890, bona fide and actively commence operations in the said Municipality for the construction and erection of a ijood and sufficient system of water- works, which shall have a pumping capacity- of one million t^allons in every twenty-four hours, of suflficicnt power to supply six hydrants at one tiniC with one-inch nozzcls, throwing 150 gal- lons i)er minute 60 feet high and 125 feet hori/.ontallv. Ii less than six streams arc used at one time the parties of the second part shall have the right to demand that water be '.hrown more 20 than 60 feet high in proper [iroportion as the number of streams neeiied at once is reduced less than six. Provided, also, that w^hen the said town has a population of six thousand people the be increased in ' l)arti of such I ay reqi ;ip >p'y prop' one million comm [allons for six thousand inhabitants, and also unless they shall and will ^fter encement proceed with tlue diligence to complete :iuch waterworks, and h ivc such watt 1 works sufficiently completed to enable them to supnh' the water required by this agree- ment, ujion the first day of August, 1.^91, ami also unless the>' shall and will erect within the said Municipalit)- 30 hydrants, or two drinking fountains and troughs in lieu of two of said hydrants, as hereiiiafter prcAlded, at such points as ma\- be decideil bj- the parties of the secoiul part upon such streets of the Municiiiality along which the)-, the parties of the first part, shall 30 have laid water mains ami ])iiies, including the street along which the main is extended to the pumping station at block eleven (11), hereinafter mentioned. Provided, that such hydrants shall be located oi)[)ositc to sucli line of mains and pipes so laid; also, unless they shall and will supply pure water to the sa I parties of the second part for fire and street sprinkling purposes within thc-said Municipality from said hydrants or drinkiuij fountains and troughs as aforesaid. And, further, unless they shall and will furnish to the residents of the .said Municipality pure water for domestic purposes from the pipes of their said waterworks as the same relaid at a ])rice not to exceed the rates set forth in the schedule hereto annexed marked " A," but such rates shall not include the costs of service pipe connections and plumbing from the mains and 40 pipes to the premises to be supplietl, and all connections with the mains for the house supplies sh.ill be made free by the company, but the service from the street line to the houses will have to be out in at the expense of the housrliolder, and all such service pipes, as well as fittings, used in the houses to be subject to the approval and supervision of the Company reasonably ith the said s, shall and y' liif^her iir ic scliccluli-' entitle the iiicnticiiu'd, rties of the '"oresaid the rties of the irties of the : absolutely ; use of the IS, shall ami peratlotis in m of water- four hours, ing 150 ^jal- uscd at one hrown more educed less people the proportidn id will "ftcr 1 h ivc such / this aj,nec- t within the two of said f the second t part, shall nded to the ind pipes so ond {lart for or drinkiu'' Vlunicipality Tie relaid at \," but such ; mains anil luse supplies es will have 11 as fittings, ' reasonably '/ 17 exfrcisi'il in the iirernisos; and the coinmeinfinciit of active operations as aforesaid shull he fuifilicil by tiic parties of thi! first pari liavin^' at least $5,000 wirlli of plant on the ^roinids at the date of starting' as aforesaid, when tlir security herein.ifter mentioned shall he returned and handed hac k to the parties ol the first part. .\nd the [larties of the second i)art for tlieniselvcs and their successors hereby covenant, promise ami a^nee to and with the parties of the first pail, their suiccssors and as:i;.;ns, in con- sideration of the performance of the covenants heicin ((int. lined, til, it tliey, the parties ol the second part sii.ill, so soon as tlie s.iid w.iter is HMdy to he supplied as aforesaici, from the said hydrants, and is so supplied as herein re(iuire(l, pa>- to the parties of the first part, their suc- 10 ccs-ors and a.ssitjns, the annual sum of sixty dollars for each and ever)- of such hydrants, such payments to he made (|narlerl)', and that for an\' water recpiircd by the parties of the second part for fiushin!,' services shall be paid for at the rate of fori)' cents per one thous.ind Imperial gallons, pa)'able (|uarterly hs aforesaid. Prcvidcit, always, that the hydrants and all public service supply ma\- be terminated on six inonlhs' notice if not carried out accor.'iiitr to the contract by the Coinpan)', and that no pay- ment sh.ill be made therefor unless such service shall be carried out accordin;^ to ilie terms of tliis contr.icl And it is hcreb)' covenanted and .e^'reed b\- and between the parties hereto, that this contract shall continue for ten years from the date hereof, except in so far as it may be terminated as aforesaid, and that the parties of the second i)art s' all have the ri^dit to renew 23 this ,ij;reemen; for such additional period, not exeecilin,^' icn years, as the parties of the second part may desire. And it is also mutually covenanted and aijrced by and between the parties hereto that the parties of the second part shall have the option, in case they so desire, to purchase the water- works of the said parties of the first part at the expir.itioii of ei<;ht years from the first day of Aut?ust, 1891, or at an)' subsc(|uent time on givin;.; i-.'elvc months' notice of their intention so to d(\ upon paxdni; the parties of the first p.vr*-, cr to their successors and assigns, tiic value of the waterworks as a jjropert)' or runninLj concern, with a bonus of 20 per cent, adtlcd for sur- render, such value to be decided by arbitration a- h .rcinafter provided. And if the parties of the first part shall at any time during the continuance of this agrce- 30 ment so desire and re(iuest to be lioiie, that they, the p.uties of the first part, will erect opposite to and connect with any of the mains ami pipes which they ma)' have laid in the said Munici- pallt\-, any ami such aiklitional number of hydrants as the jiartics of the second part may from time to time retpiest them so to erect, and that the pa)ment of each and evcr\- sucli additional lu'drant, up to one hundred in number, shall be sixty dollars per annum, pa)'able c|uarterly as aforesaid; subject, however, to the terms aforesaid. Provided, That if any dispute should arise under this contract between the parties thereto, or as to the amount to be paid as purchase money for such waterworks, the same shall be adjusted and settled by arbitration as follows : The parties of the first part shall appoint an arbitrator, and the said parties of the second part shall appoint an arbitrator, and these two 40 arbitrators shall appoint a third, or if they cannot agree upon a third, then such third arbitrator shall be appointed by the Judge of the Supreme Court of the North West Territories, for the iroceed with their proposed exca- vating, as if such i)ermit had been granted, aiul that they, the parties of the first part, shall, whenever they are excavating trenches for their saiil works, protect the same in a reasonable manner by fences, railings and lights, .is will protect the public from being injured by reason of such excavations being open. Also, that the saitl Municipality shall have free of cost or charges whatever water is reciuired for filling and kce[)ing filled the necessary tanks constructed or to he, in said Town, i)rovided that the Municipality shall have the tanks water-tight and so as to hold the water without leakage. And, also, that ihe said [larties of the first part shall kee[) all connection from their mains to the shut-off on line of the streets in good working order at their own expense and charges. JO And that the parties of the second part shall have the first right to purchase the said works i-iiould the parties of the first part decide to sell out at any time previous to the expiration of or, and the nA\ .. the said Corporation have also set their hands and aiifi.xed the corporate seal of the said Curpor ation, on the day and year first above written. SldNlCn, SliAr.KD AND KXECUTEI) in the presence of 20 [SEAL] (Signedj (Signed) (Signedj (Signed; U. W. MARSH, Mayor. E P. DAVIS, Clerk. P. McCarthy, President. ALEX. LUCAS, Secretary. tJ o drinkincf to arbitra- ;crn of the the award part shall d shall no : hi. 'eta ' ' d ^' -:'.: ,:. lid Lurpor- Vlayor. Clerk. Y, sident. rctary. 30 JUDGMENT OF ROULEAU, J. THE CALGARY GAS & WATERWORKS COMPANY vs. ThE CITY OF CALGARY. 10 20 This is an appeal by the Calgary Ga>< and Waterivorks Company from the decision of the Court of Revision of the Corporation of the City of Cal<,^ary, in respect to the assessment of lots 26 to 31, both inclusive, in block r i, section 16, in the City of Calgary— Assessment No. 873; total value of real property and improvements, $100,315.00— on the following grounds : 1. That said assessment is ton high. 2. That said mains and water pipes extending through and underlying the public streets of the City are exempt from tax-ition 3. That said mains and water pipes are not under the agreement in respect thereof be- tween the Company and the City liable to be assessed. 4. That said lots, buildings, improvements, mains and water pipes are not assessable, nor is the said Company liable to be assessed in respect thereof, but the shares of the said Company representing said pro|)erty arc alone assessable. 5 That said mains and water pipes are not real property and are not assessable as such 6. That said mains and water pipes are not as.sessable with or as part of said lots, or as improvements on or in respect of said lots, or otherwise. 7. That .said mains and water pipes arc not sufficiently described and particularized, nor docs said assessment state the value thereof, and said assessment is not made in accordance with the provisions of Ordinance No. ^^ of 1893. 8. That said assessment is not according to law. The facts of evidence in this appeal are these : There is one-eighth of the Company's pipes outside of the City limits, and forming part of the continuous mains in the City limits; all the Company's mains and pipes after leaving the a.s.se.ssed lots in question pass through and undcrly the public streets of the City; exclusive of the Company's right or franchise, in respect sion of the lent of lots It No. 873; s : blic streets thereof be- ;ssab'c, nor 1 Company ble as such lots, or as larized, nor accordance Company's y limits; all hroiigh and ;, in respect 21 of said mains and pipes and the public streets, said mains and pipes are of no actual value; the said right or franchise has not been assessed; the supply pipes are the property of the consumers and are attached to the Company's pipes and to the buildings of the different consumers; the only projjcrty of the Company assessed under the present assessment are the lots, the buildings, machinery and im[)rovements thereon. A similar case as this has already been decided by mo last year. The City has appealed to the Supreme Court in Banc. Till the decision is given, I have nothing to add to or retract from my former decision. I therefore refer the parties to the motives given in my judgment. Till a higher tribunal reverses my former decision I am of the opinion that the mains and pipes of the Company passing through the streets form part of the lO streets, and as such are not assessable, because all projierty belonging to the City is exempt from taxation; that these mains and pipes are neither fixtures nor appurtenances, nor heredita- ments forming part of the realty a.s.sessable and belonging to the Company, outside of the limits of said lots; that section 3 1 of the City Charter defines what is meant by " land," "real property" and "real estate," in all cases oi assessment of real property; and that the assessment on said lots is excessive. The assessment on the real property belonging to the Company should be. therefore, as follows ; Lots $ 315 00 Pumps 2,500 00 20 VVell '00 no Huildings 1.500 00 . Boilers '.200 00 Fence 20 00 Main pipe and connections 100 00 , Altogether $ 5.735 00 Appeal allowed and the assessment to be amended by deducting the sum of $94,580.00 from the amount of said assessment. Calgary, 28th April, 1897. (Signed) CHAS. B. ROULEAU, le; the said umers and 3; the only buildings, led by mo is given, I rtics to the am of the part of the is exempt r heredita- f the limits I property" n said lots i I p I lerefore, as $ 315 00 2,500 00 100 00 1,500 00 1,200 00 20 00 100 00 $ 5,735 00 $94,580.00 AU, . S C. 22 NOTICE OF APPEAL. IN tup: supreme court of the north west territories. /« t/ie matter of the appeal of the Calgary Gas and Waterworks Company from the decision of the Court of Revision of the Corporation of thi City of Calgary in respect to the assessment of Lots Twenty-six to Thirty-two, both inclusive, in Block Eleven, Section Sixteen, in the City of Calgary, Assessment No. .V7J. Bet\vei:n 10 THE COUNCIL OF THE CITY OE CALGARY, AND Appellants THE CALGARY GAS AND WATERWORKS COMPANY, Respondents 20 Take notice that the Council of the City of Calgary, being dissatisfied with the decision next hereinafter mentioned, hereby appeal to th.e Supreme Court of the North West Territories in Banc, from the decision of the Honorable Mr. Justice Rouleau, a Judge of the Supreme Court having jurisdiction in the City of Calgary, in the said appeal of the said Company from the Court of Revision delivered on the 28th day of April, A. D. 1897, whereby he fixed the total assessment on the real property belonging to said Company at $5,735.00, instead of at $100,315.00, as .settled by said Court of Revision, upon the following among other grounds : 1. That such decision is contrary to law and evidence. 2. That the learneJ Judge should have found that the water mains and pipes of the said Company underlying the streets and lanes in the City of Calgary are real property, or land, or real estate, and as such assessable, either as fixtures or appurtenances to the said lands, namely, the said lots 26 to 1,2, or as (with the land occupied thereby) hereditaments of the said Com- pany. 3. That if necessary the learned Judge should have amended the assessment roll accord- ingly, as asked by the said City of Calgary. ES. decision of