Ex. C.R. EXCHEQUER COURT OF CANADA 91 BETWEEN: 1925 HIS MAJESTY THE KING PLAINTIFF; Jan g. AND ROLAND STUART ET AL DEFENDANTS. Expropriation—Compensation—Market value—Prospective value— Mortgage The Crown expropriated lots A, B, C, D, and E, the property of the defendant S., and tendered the sum of $22,000 in full compensation therefor. Defendant M. held a mortgage on lots A, B, C, and D, amounting with interest to $22,000, the amount of the tender, which the crown paid off. Defendant S. claimed that as there was on lot E. a hot spring, the whole property being worked together had special value by reason of its prospective advantages and its special adaptability as a health and pleasure resort, when developed and conducted on a commercial basis; and further contended, that in paying the whole amount of the tender to M., in discharge of his mortgage, which had no relation to lot E., no consideration was given to the said lot in reaching the amount tendered. The evidence showed that it would take a very large capital to so develop the property and that the results were problematical. That the amount tendered covered $10,000 for certain of the lots and another $10,000 for defendant's interests in the hot spring. Held: That although S., was entitled to compensation not only upon the present market or intrinsic value of the property, but also to any advantage which the property might possess prospectively, or with reference to the probable use which would give him the best return possible, such further advantage must be calculable and calculated at the time of the expropriation. The proper basis of compensation is the amount which a prudent man would be willing to pay for it at that time. 2. That, upon the facts, the Crown in fixing the tender having considered all the properties expropriated including the lot not covered by M's. mortgage, the Crown was justified in paying the amount of such tender to M. to discharge part of the property expropriated from such mortgage. INFORMATION by the Attorney General of Canada to have the compensation for certain properties expropriated from the defendants fixed by the court.
92 EXCHEQUER COURT OF CANADA [1926] 1925 Victoria, September 22; Vancouver, September 24, and THE KING Banff, October 4, 1924. Rov. Action now tried before the Honourable the President. ND STUART. A. B. Macdonald, K.C., and R. V. Prenter for plaintiff. Maclean J, R. Cassidy, K.C., and F. Higgins for defendants. MACLEAN J., now this 13th day of January, 1925, delivered judgment (1). The plaintiff expropriated certain lands of the defendant Roland Stuart, under the provisions of Chap. 17, sec. 3, of the Statutes of Canada, The Dominion Forest Reserves and Public Parks Acts 1919, land the Expropriation Act, Chapter 143 Bof the Revised Statutes of Canada, for the purpose of extending the Dominion Parks system. The property expropriated known as lots 149, 9011, 9565, 9565A and 9566, is situated in the Columbia River Valley, in Kootenay District, in the province of British Columbia. The first mentioned lot 149 was acquired by the defendant in 1887 by grant, at a nominal figure, from the Gbvern-ment of British Columbia and contains about 160 acres. The remaining lots were acquired by the defendant by purchase in 1912, from one Malcolm, the defendant at the same time mortgaging this property to the said Malcolm in the principal sum of $16,000, on account of the major portion of the purchase price. The plaintiff tendered the defendant the sum of $22,000 for the whole of the property so taken. The defendant claims a sum very much in excess of the amount so tendered, and in the evidence produced at the trial he sought to establish a value of from $200,000 to $300,000. It is admitted that the value of the property qua land is not the basis of the defendant's claim for compensation in excess of the amount tendered. From this viewpoint alone the property has little present value. Upon the expropriated lot 149, is a hot spring, known as Sinclair Springs, which, in the company of counsel for the respective parties to the action, I had the privilege of viewing, and the other lots of land as well. The temperature of the (1) An appeal was taken from this judgment to the Supreme Court of Canada and judgment was rendered on the 5th day of February, A.D. 1926. The reasons of the Honourable Mr. Justice Mignault who gave the judgment for the court will be found printed at the end of this report.
Ex. C.R. EXCHEQUER COURT OF CANADA 93 spring is about 112 degrees, and has quite a considerable 1925 flow. The chemical constituents of the water are not HE claimed to be unusual, except that it is free from sulphur RO A ND which is said to be a favourable condition, and the water STUART. is radio active. A report of Professor Boyle of Alberta Maclean J. University upon the radio activity of the spring is in evidence as an exhibit. In addition, it is claimed that by reason of the scenic qualities of the whole property, the altitude and climate, a special value attaches to the property as one particularly suitable for development as a health and pleasure resort. It is also claimed that the possibility of development has been accelerated by the construction of the Banff-Windermere highway recently completed by the Dominion Parks, administered by the Department of the Interior. This very splendid and creditable highway is fully constructed between Banff, Alberta, and the Columbia River Valley in British Columbia, and passes through lot 149, immediately by the hot springs, thus rendering it accessible to motor tourists particularly. The construction in recent years, of the Kootenay Central Railway, by the Canadian Pacific Railway Company also makes the hot springs more accessible than formerly. I might here say that lot 149 is about two and a half miles distant by road from the other four lots, and the defendant claims they were purchased as part of the same scheme whereon might be erected hotels, camps, golf course, etc., lot 149 not being suitable for such purposes owing to its mountainous nature. On the other hand, the plaintiff asserts that there is no evidence of the hot spring possessing any therapeutic value, or that by reason of any radio activity of the water, the spring has any proved therapeutic value. That the climate and location combine to render the property available as a health or pleasure resort for only about four months of the year, that the Banff-Windermere highway is only open for traffic for about four months a year, and that altogether it is not possible by any expenditure of capital to develop a profitable enterprise of the character suggested by the defendant, and that the sum tendered the defendant is sufficient compensation for any value the property possesses for any purposes whatever.
94 EXCHEQUER COURT OF CANADA [1926] 1925 There is no doubt but that the hot spring on lot 149 is THE KING located amidst beautiful mountain scenery, the entrance to RDLAND the property at Sinclair Pass is most striking indeed. The STUART. waters of the spring are undoubtedly hot and the flow very Maclean J. considerable, but it is to be observed that the defendant is not entitled to the exclusive use of the flow of water. There is no evidence whatever that the constituent qualities of the water, or that the spring itself, differs much from other hot springs in Canada, and in fact from that of Fairmont some few miles distant, except that the temperature is somewhat higher, and there is an absence of sulphur. This hot spring is, however, probably greater in radio emanation content than other known hot springs in Canada, but not so great as is to be found in many hot springs in the United States and Europe. All hot springs are, however, usually radio-active. It has not, however, in my opinion, been established that the waters by reason of being radio-active thereby enhance the value of the waters for therapeutic purposes. I am disposed to accept the evidence of Prof. Frederick Sody, Professor of Chemistry at the University of Oxford, upon this point. He states in effect that the hot spring waters might be recommended by physicians empirically, but not with any conviction that they possessed any positive therapeutic or curative values. I understand him to mean that hot springs at health resorts are an added attraction to engage the interest of persons of impaired health, and if patrons think the waters are conducive to the restoration of impaired health, it is a psychological condition not undesirable in the treatment of certain patients, but that any improvement in health would be purely psychological. There is no clear or affirmative evidence that the springs are of any therapeutic value beyond this. It is not established that there is any connection between the therapeutic properties of the spring and the radio activity of its water. If the water, for this or any other reason, possesses any therapeutic value, there is no reliable evidence of it. The water coming from the spring is hot which is always a novel condition attractive to many people, land may be utilized to attract tourists and persons in ill health. In this sense only do I think the waters of the spring possess any special value.
Ex. C.R. EXCHEQUER COURT OF CANADA 95 I am also disposed to accept the evidence of Dr. Robert 1925 Fortesque Fox, who gave evidence before a commissioner THE KING in London, England, as true of all hot springs operating V. ROLAND for commercial gain, which was to the effect that establish-STUART. ments do not as a general rule pay. There are, of course, Maclean J. exceptions. There is a hot spring at Fairmont twenty miles distant from Sinclair Springs and this apparently is not profitable. The well known Banff Springs, readily accessible by the Canadian Pacific Railway, and situated within the Dominion Parks amidst unrivalled mountain scenery, Advertised very freely, and operated and conducted by the Dominion Parks, are not self sustaining. Apparently the same is true of the hot springs at Harrison, B.C., where a hotel operated in connection with the hot spring was burnt down in 1920 and has not since been rebuilt. The defendant produced altogether three or four witnesses to establish the value of the property. The first was Mr. Murray, of Victoria, a real estate broker. He expressed the opinion that with an expenditure of $300,000 the property could be made productive. He had no experience whatever in matters of this kind, and his opinion was not convincing nor based, I thought, on any sound business principles. Mr. Rutherford was hardly an unprejudiced witness, having been a bonused shareholder in a company once projected to operate the springs and also intimately associated with the defendant Stuart in the promotion of the property as a going concern. His evidence was not at all helpful. The defendant gave evidence on his own behalf, but I cannot say that he contributed anything which really assisted the court. He early had in mind the development of the property for the purposes and with the objects already outlined. Not having the requisite capital himself, he endeavoured to get it from others. He induced one Harmsworth of London, England, to invest $20,000 in the project, but according to Ruther-ford only about $7,000 actually went into the project. Later one Alexander organized as company to. acquire the property for £58,000, and the defendant as vendor was to accept £41,000 in fully paid shares as part of the consideration, together with some cash payment. This project fell through, and the plaintiff sought to establish that fraud or
96 EXCHEQUER COURT OF CANADA [1926] 1925 misrepresentation was associated with the attempt to THE NO pose of the company's shares to the public. In this pro- s motion apparently questionable representations were made ROLAND STUART. to the public, and although some shares were sold, the offer- Maclean J. ing of shares to the public was in the end withdrawn, and the property was never even conveyed to the company by the defendant. While some evidence was admitted in this connection, I do not think it relevant, nor do I think that this abortive sale of the property affords the slightest basis whatever for the determination of the present or future value of the property, and I disregard it altogether. The most important witness on behalf of the defendant was His Honour the Lieutenant-Governor of Alberta, R. G. Brett, M.D. This witness for years conducted a sanitorium and hotel tat Banff, in which the thermal waters of Banff were used therapeutically. He was also acquainted with other thermal springs in Canada such as Fairmont and Sin-clair, and he thought that the latter were quite as good as any other springs in Canada or any he knew. He was not in a position to say anything as to the radio activity of this or other springs. After reciting the favourable qualities of the property, the springs, etc., he states that if a comfortable hotel and good bath houses were built, golf and tennis facilities afforded, he thought such a project should attract people as other springs do. The development should be progressive, he thought, if and as circumstances justified. He thought the expenditure of a fairly good sum would be justified at once. Having demonstrated' that the patronage of such a project was not a transitory thing, he would have in mind a 'speculative value for the property which he might get from some one more optimistic than himself and who might wish to buy it. He thought that $20,000 might .be earned within three years after the start. Questioned by defendant's counsel as to the value of the property this witness gave the following piece of evidence and which rather discloses his method of arriving at the value of the property. Q. Taking it to-day with the intrinsic qualities of the property. A. I certainly think if I owned those springs and was 40 years younger than I am, and with the faith I have in my own ability to develop them, and the faith I have in the country, of its ability to support them, I certainly would not take two hundred thousand dollars for them—that is the conclusion I have come to. I would take as much over that as I could get. I certainly would not take anything less.
Ex. C.R. EXCHEQUER COURT OF CANADA 97 Altogether I construe this witness's evidence to merely 1925 mean that in his judgment it is not impossible, that with a THE KING proper capital expenditure to provide attractive facilities Ro1.AND for patrons, with proper management, advertising, etc., in STUART. time a substantial and enduring business might be built up, Maclean J. but that as in most other businesses, in the effort of build- ing up there was the element of speculation and risk. I do not think I should be justified in adopting this line of reasoning in attempting to fix the value of the property here expropriated. If the property has any value in excess of the amount so tendered it is by reason of advantages which the property possesses prospectively, by virtue of its special adaptability as a health and pleasure resort, developed and conducted upon a commercial basis. The defendant is entitled to compensation not only upon the present market value or intrinsic value of the property; but it is well settled, he is entitled to any advantage which the property possesses pro- spectively, or with reference to the probable use which will give him the best return possible. The future advantage must, however, be calculable and calculated at the time of the expropriation, and the proper compensation is the amount which a prudent man would then be willing to pay for it. The value to be paid for it is the value to the owner as it existed at the date of taking. The value to the owner consists in all the advantages which the land possesses present or future, but it is the present value alone of such advantages that must be determined. I would refer to Cedar Rapids Case (1) ; Cripps Law of Compensation, 5th ed., 117, and Lake Erie Northern Railway Co. v. Schooley (2). In The King v. Wilson (3), and The King v. Mac- Pherson (4), will be found a comprehensive review of the law applicable to cases of this kind. The defendant seeks to establish a special value for the property upon the con- tingency of capital being procurable for the construction of the requisite plant, and following that a profitable patron- age by the public. But the condition upon which this method of valuation is based does not exist, and in any event, any attempt to measure the possible profits to ensue from the sale of hotel accommodation, scenery, hot baths, (1) [1914] A.C. 569. (3) [1914] 15 Ex. C.R. 283. (2) [1916] 53 S.C.R. 416. (4) [1914] 15 Ex. C.R. 215. 21559-1a
98 EXCHEQUER COURT OF CANADA [ 19261 1925 etc., demands the consideration of factors so conjectural THE KING and speculative as to make it impossible of calculation. v. ROLAND Having in mind therefore the law applicable to the case, STUART. the question is whether $22,000 is a sufficient compensa- Maclean J. tion. I think it is, subject to what I shall hereafter say concerning the defendant's claim for compulsory taking. Lot 149 has no land value whatever, and one of its defects is the lack of building sites which would prohibit any such development as has taken place, say at Banff or Fairmont. In 1909 the defendant offered this lot to the Canadian Pacific Railway for $3,000. The property is, of course, more accessible to-day. It is true also that expenditures were subsequently made on this lot 149, but this has been taken into consideration. The suibsequently acquired Malcolm property, consisting of about 450 acres, was probably a necessary expenditure in view of the general project which the defendant had in mind, but its present market value qua land is small compared with the purchase price. It must have been purchased in boom days. These lots are unimproved and have no agricultural value unless irrigated, and a very large portion consists of steep slopes. As to the special adaptability of the property for a business such as suggested by the defendant, I have nothing before me but pure conjecture as to the prospective earnings of such a business if developed. Tested in an imaginary market, there is nothing to sustain the defendant's claim as to the value of the property. There is no evidence that this class of business has anywhere in Canada been profitable. The springs have been recently made more accessible to motor tourists by the Banff-Windermere highway, but this traffic is only for four months, and it is not possible to find what degree of patronage would thereby enure to such a business, and the measure of profit, if any. There was always the possibility of course that some person, at some time, might desire to buy this property land engage in the suggested kind of business, but if so, I feel quite certain that no prudent person would entertain the idea of such a capital expenditure as suggested by the defendant for the site or location of a business that is so obviously risky and uncertain. I am of the opinion, therefore, that the sum tendered, $22,000, is sufficient, except that I think there should
Ex. C.R. EXCHEQUER COURT OF CANADA 99 be added ten per cent for the compulsory taking, and which 1925 the defendant claims. THE Na I was concerned for a time as to another point in the Ro1.AND case. The trial of this cause opened at Victoria. At a STUART. later date further evidence was heard at Vancouver, and Maclean J. still later at Banff. In the course of the trial many exhibits were filed, and altogether I thought it not inadvisable to suggest to counsel, at the end of the trial, that they each file a brief on the evidence and law which was agreed upon, and accordingly no argument took place upon the con- clusion of the trial. The defendant's counsel in his brief raised a point to which my attention had not been directed during the trial, although a careful reading of the plain- tiff's information would suggest the point. Subsequently I filed a memorandum covering the fact that this point had been directly raised by defendant's counsel and suggesting a reply thereto from the plaintiff's counsel if he desired, which was done. The land in question, exclusive of lot 149, ias already stated, was subject to a mortgage made by the defendant in favour of one Malcolm in the principal sum of $16,230.80 with interest. On June 5, 1922, and after the expropria- tion proceedings herein were initiated, the plaintiff through the Minister of the Interior of the Dominion of Canada, discharged this mortgage by payment of the sum of $22,000 to the said Malcolm, and this appears in the plaintiff's in- formation. This amount of $22,000 so paid is the full amount tendered by the plaintiff in full satisfaction of any interest the defendant had in all the property expropriated. The defendant's counsel now raises the point, in the man- ner already stated, that the payment of the Malcolm mort- gage had not any relation to lot 149, and that the $22,000 so paid was not to be regarded as applicable to the whole property or treated as a tender for the whole property. In effect the suggestion is that no consideration was given to lot 149 in reaching the amount tendered. Upon a review of the evidence I am quite satisfied that in reaching the sum tendered for the five lots, due con- sideration was given to the value of lot No. 149 separately, and the sum of $22,000 comprised the estimated value of lot 149, and of all the lands taken. The sum tendered was the result of investigation and estimates made by James 21559—lia
100 EXCHEQUER COURT OF CANADA [1926] 1925 Wardle, chief engineer of the Dominion Parks system. In THE KING his evidence he states that he discussed the land value with ROLAND local residents, ascertained the prices paid in recent years STUART. for actual sales by reference to the district land titles office, Maclean J. measured up and checked the values of buildings and im- - provements, then; allowed something additional over the amount so computed, and altogether this amounted to $10,000; then he allowed $10,000 for any right or interest of the defendant in the hot springs. It was in this way he reached the total sum of $20,000 which he regarded as the value of all the property. There is no evidence explanatory of the additional $2,000, but probably this amount was required to satisfy the mortgagee and thus to end that matter. From this it is clear that the sum tendered comprises an allowance for lot 149 first as to the value of the land and improvements, and then a special amount for the hot, springs. While the evidence is not quite clear or precise, I think it may safely be assumed that more than one-half of the total valuation thus arrived at, probably $14,000 or $15,000 of the $20,000 estimated by Mr. Wardle had reference to lot 149, and that chiefly for the water rights and improvements. The land value of all the lots would then be represented by about $5,000 or $6,000. The defendant did not in his defence or at the trial plead that consideration was not given to lot 149 in reaching the sum tendered, nor is there any evidence supporting that theory, in fact the evidence is entirely to the contrary. The defendant regarded the whole five lots as one property, this for the reason that there were no building sites on lot 149 which would permit any building of importance there. Hotels, camps, golf, etc., was only possible on the Malcolm lots. Neither did the defendant in his pleadings, or during the trial, urge the point that the discharge of the Malcolm mortgage by the plaintiff was irregular or that he suffered in any way by the procedure adopted in discharging the mortgage in the manner and at the time stated. I cannot see that he can in law object to the discharge of the mortgage by the plaintiff. There is no evidence that the defendant was not liable on the covenants of the mortgage for the principal and matured interest, but I may assume that he was so liable, and had the amount tendered been paid
Ex. C.R. EXCHEQUER COURT OF CANADA 101 into court to await the result of this trial, the same would 1925 then have been available to the mortgagee by some legal THE KING process if the amount was due, and there is no suggestion ROLAND to the contrary. However, this question was not in issue, STUART. and I have only to determine whether the sum tendered Maclean J. for the property taken is sufficient or otherwise. — Accordingly there will be judgment as follows: the lands expropriated are declared vested in the Crown as from April 4, 1922; the compensation for the land so taken and for all damages resulting from the expropriation is hereby fixed at the sum of $24,200 with interest thereon from April 4, 1922, until June 5, 1922, and interest on $2,200 from that date till the date of this judgment; upon giving to the Crown a good title free from encumbrances, the defendant Stuart is entitled to recover from the plaintiff the sum of $2,200 together with interest on $24,200 from April 4, 1922, to June 5, 1922, and interest on $2,200 from the last mentioned date to the date of this judgment, the plaintiff having paid the balance of the damages to the mortgagee on account of the defendant; the defendant Stuart shall have his costs of trial, and the defendant the Royal Trust Company will have its costs against the plaintiff ,as intimated at the opening of the trial and which should be agreed upon between counsel of the parties, and in default of them agreeing, to be taxed. Judgment accordingly.* *The following are the reasons for in the matter of the expropriation judgment of Mignault J. in the of five parcels of land, to wit: lots Supreme Court, concurred in by 149, 9011, 9565, 9565A and 9566 in Anglin C.J., Duff, Rinfret and group one, Kootenay district, Brit- Smith JJ. ish Columbia, containing an area of 615.97 acres, more or less. It al- On the 29th of May, 1923, the leged that these lands were taken Attorney General of Canada, on for the purpose of a public work of behalf of His Majesty the King, Canada, a public park, and that, on exhibited in the Exchequer Court the 4th of April, 1922, a plan and an information to which Roland description of the land was de-Stuart and John Roper Hull and posited of record in the land regis-the Royal Trust Company, execu- try office of the Nelson land regis-tors of the estate of William James tration district. The information Roper, deceased, were made de- also states that the defendant Ro-fendants. This information was ex- land Stuart claims to have been hibited under section 26 of the Ex- the owner in fee simple of the propriation Act (R.S.C., ch. 143) lands at the time of filing the plan
102 EXCHEQUER COURT OF CANADA [1926] 1925 and description, subject however The contention of the defendant to the following registered mort- Stuart briefly is that all these lots THE KiNa gages: (a) a mortgage, dated 11th were purchased as parts of one and Ro v r .A ' N n of December, 1911, over lot 149, in the same scheme. Lot 149, on STUART. favour of one William J. Roper for which the spring is located, owing $10,000, the full amount whereof to its mountainous character, is not Mignault J. had been paid to the trustees of suitable for building purposes, but the Roper's estate, but a final dis- the other lots it is urged, are an charge of the mortgage had not yet admirable site for hotels, camps been registered; (b) a mortgage and a golf course, the whole in dated the 11th of February, 1912, beautiful mountain scenery. The over lots 9011, 9565, 9565A and Banff-Windermere Highway passes 9566 in favour of William J. Mal- close to the spring, but is open only colm to secure payment of for four months of the year. The $16,230.80, with interest at 7 per defendant describes the property as cent per annum, " which said being an ideal pleasure and health mortgage was discharged by His resort, and claims that it has a Majesty the King, through the special adaptability as such. He Minister of the Interior of the further contends that it is expropri-Dominion of Canada on the 5th ated by the Government for the day of June, 1922, by the payment same purposes as those for which to the said William J. Malcolm of he intended to use it himself. the sum of $22,000, and a formal The case after a somewhat discharge of the said mortgage has lengthy trial, and production of been registered in the said land evidence taken in England under a registry office." It was further al- commission in which the spring and leged that His Majesty the King its surroundings were compared to was willing to pay to whomsoever other hot springs in America and the court might adjudge to be en- Europe, was submitted to the titled thereto, in full satisfaction of learned President of the Exchequer all estate, right, title and interest, Court, who also, in company with and all claims for damages that counsel for the respective parties, may be caused by the expropria- visited the property. By his judg-tion, " the sum of $22,000, includ- ment, the learned President Being therein the said sum of $22,000 dared the lands vested in the paid as aforesaid to discharge the Crown, and adding ten per cent for said mortgage held by William J. compulsory taking to the $22,000 Malcolm." tendered, awarded $24,200 as corn- The defendant Roland Stuart pensation for the lands and for all alone filed a defence to the action. damages resulting from the expro-He alleged that the tender of $22,- priation. He further declared that 000 was not a sufficient and just the defendant Stuart was entitled compensation for the lands expro- to recover from the Crown $2,200, priated and claimed as compensa- together with interest on $24,200 tion $500,000, with interest and from April 4, 1922, to June 5, 1922, costs. No question was raised as to the payment of the Roper and interest on $2,200 from the last mort- Sage on lot 149. mentioned date to the date of the On lot 149 there is a hot spring judgment, the Crown " having paid known as Sinclair Springs. Its the balance of the damages to the temperature is about 112 degrees mortgagee on account of the de-and it has a considerable flow. fendant." The other lots are about two and a From this judgment the defend- half miles by road from lot 149. ant Stuart appeals.
Ex. C.R. EXCHEQUER COURT OF CANADA 103 The appellant at the trial relied any charge, lien or encumbrance to 1925 on some highly speculative features which the land was subject, so far in connection with the expropri- as it can be ascertained, and also THE SING ated lots, but it a P p P p eared to us,the sums of money which the ROL v A ' ND after the very full argument sub- Crown is ready to pay to such per- STUART. mitted on his behalf, that the sons respectively, in respect of any learned President had duly con- such estate, interest, charge, lien or Mignault J. sidered all the elements which can encumbrances (sect. 26). The ex- appropriately enter into the valua- propriation proceedings, as far as tion of such a property, and that the parties thereto are concerned, he had placed a value on the lands bar all claims to the compensation with any potentialities or special money or any part thereof includ- adaptability which they possessed ing any claims in respect of all at the date of the expropriation. mortgages, hypothecs or encum- The defendant's grievance, as al- brances upon the land or property, leged, is that this valuation is in- and the court makes " such order adequate, but after considering all for the distribution, payment or the evidence to which we were re- investment of the compensation ferred, we do not think we would money, and for the securing of the be justified in disturbing the rights of all persons interested, as learned President's estimate of to right and justice, and according value. to the provisions of this Act, and A difficulty however arises in to law appertain" (sect. 29). Sec-connection with the course adopted tion 33 adds that the Minister of by the Crown in paying to the Finance may pay to any person, mortgagee Malcolm the $22,000 it out of any unappropriated moneys tendered as compensation. Mal- forming part of the consolidated cohn had a mortgage on lots 9011, revenue fund, any sum of money 9565, 9565A and 9566. He had no to which under the judgment of interest in lot 149, and under his the Exchequer Court he is entitled mortgage could claim no part of as compensation money or costs. the compensation granted for that If the course mapped out by the lot. Undoubtedly Stuart was en- statute had been followed, the Ex-titled to compensation for the chequer Court would have made an compulsory taking of lot 149. order indicating the persons (own- It may be observed that under ers or mortgagees) entitled to the the Expropriation Act, the corn- compensation money, or to a pro-pensation money stands in the portionate share thereof, and these stead of the land or property ex- persons in due course would have propriated, and any claim to or en- been paid by the Minister of cumbrance on such land or pro- Finance. The Crown however perty is as respects His Majesty paid to Malcolm in advance, and converted into a claim to the corn- without reference to Stuart, the pensation money, or to a propor- whole amount which it tendered to tionate share thereof, and is void the latter as compensation for the as respects the land or property expropriation of the five lots. The taken (sect. 22). The information sum it paid on the Malcolm mort which is exhibited by the Attor- gage no doubt satisfied any claim ney General should set forth, inter for compensation in respect of the alia, the persons who, at the date property covered by that mort-of the deposit of the plan and de- gage, to wit lots 9011, 9565, 9565A • scription of the land or property, and 9566, but that payment cannot had any estate or interest in such be applied towards compensation land or property and -the particu- for lot 149. We think therefore lars of such estate or interest, and that the action should be remitted
104 EXCHEQUER COURT OF CANADA [1926] 1925 to the Exchequer Court to deter- think that there should be no order `ter mine the amount of compensation as to the costs of this appeal. The THE KING payable in respect of lot 149. costs of all proceedings in the Ex- ROL v A ' ND Under all the circumstances, and chequer Court will be in the dis- STUART. as the appellant fails with respect cretion of the judge when dispos- to the greater part of his claim, we ing of the matter referred back. Mignault J.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.