. 72 EXC$EQUER COURT REPORTS. [VOL. XVIII. 194 HIS MAJESTY THE KING, ON THE INFORMATION June 6. OF THE ATTORNEY-GENERAL OF CANADA, PLAINTIFF, AND MARY E. DAVIS, ARTHUR J. DAVIS AND JAMES FINDLAY, DEFENDANTS. Expropriation—Compensation—Water Iota—Value—Summer resort. In estimating compensation for the expropriation of water-front property by the Crown for the purpose of harbour fortifications, mere prospects of developing the property into a summer resort cannot be taken into consideration in arriving at its true market value. I NFORMATION for the vesting of land and compensation therefor in an expropriation by the Crown. Tried before the Honourable Mr. Justice Audette, at Halifax, N. S., May 18, 19, 1914. T. S. Rogers, K.C., for plaintiff. H. McInnes, K.C., and J. A. McDonald, K.C., for defendants. ATiDETTE. J. (June 6, 1914) delivered judgment. This is an information exhibited by the Attorney-General of Canada, setting forth that certain lands, belonging to the defendant, Mary E. Davis, have been taken and expropriated, under the provisions of the Expropriation Act, for the purpose of a public work of Canada, vi2.: the fortification of McNab's Island, in the Harbour of Halifax, N. S.
VOL. XVIII.] EXCHEQUER COURT REPORTS. The . plan and description of the said 'lands were , deposited, on July 29th, 1912, in the office of the Reg- istrar of.Deeds for the County of Halifax, N. S. The area taken is two acres and fifty-t dredths of an acre, more or less. The Crown tendered on July 3rd, 1912, the slim of $1,080, mentioned in the information herein. The defendants at bar aver by their plea that the amount tendered is not sufficient compensation and 'claim the sum of $5,000. A On behalf of the defendants the following witnesses were heard : Arthur J..Davis, John W. Regan, William E. Studd, Frederick W. Bowes and Robert Theakston. Here follows a brief summary of the evidence : Arthur J. Davis, testified his •wife, in 1908, chased, for the sum of $7,500, 47 acres of' lands shown on plan filed herein as Exhibit "D," within . the red line's to the west of the two acres and 52-100. .of an acre expropriated herein, whereof the said 2.52 acres form part. About 3 years ago he also bought lots 39 and 41, shewn on, said plan Exhibit "D," for the' sum of $125 each. . He thinks each lotis 100 feet. He paid $250 for the two' lots. On January 18th,. 1909 he also bought. lots 31, 29, 27, 25; 1 and 2, 'and paid for the six lots the sum of $1,500. • A great deal has been. said in this testimony with respect to a company called the `McNab Resort Ltd.", organized about 3 or 4 years ago by the Davises with the view of erecting a summer hotel on lot No. 1, using part of the grounds on the waterfront of the 2.52 acres as part of the scheme, and 73 THE KING ' D F A I S N M D A LY N . D y w o hun- ` ~~ J ~ ud ° gm n 8e r n 0 t. ! - pur- about 82 feet by . Co.,`
74 EXCHEQUER COURT REPORTS. [VOL. XVIII. 1914 mentioning also the idea of using the shore of the THE KING V. 2.52 acres lot for access thereto by a wharf. DAV IS AN D FINDLAY. John W. Regan, an investment broker, of Halifax, Reasons for values the 2.52 acres at $1,800 to $2,000 as their mar- • Judgment. ket value, and at the sum of $3,600 to $4,000 with the view of the hotel scheme on the other lot. William H. Studd, a real estate broker, values the 2.52 acres at $1,000 an acre, and says that within the last 5 years property on McNab's Island might have increased 25 per cent. to 30 per cent. in certain cases. Frederick W. Bowes values the 2.52 acres at $4,750 including all damages resulting from the expropriation; but in arriving at this valuation, based on a subdivision of the acreage into building lots, he was not aware of the "clearance rights " vested in the Crown, whereby among other things, no buildings could be erected from the high water mark to the upper end of the Hugonin's Battery, as shewn on plan, Exhibit "D"—almost a third of the best part • o f the acreage. Under these circumstances he said he would have to cut down his values and would really have to re-value. Robert Theakston values the land at $$00, with a decrease of 25 per cent. if buildings cannot be erected in the front, bringing the value down to $600. On behalf of the Crown the following witnesses were heard : Harry Knight, George E. Nichols, Colonel Frederick H. Oxley and McCallum Grant: Larry Knight, who had been surveyor for the Royal Engineers since 1905, describes the land in question as rough rock, exposed rock with undersoil of gravel and rock. The highest point is on the crest of the hill by the position finding cell, about 60 feet over the level of the water, 130 feet distant from the shore, with a slope of 55 in 80 feet, more than
a VOL. XVIII.] EXCHEQUER COURT REPORTS. 75 one in two. He says the. land where the lighthouse 1914 is has an area bf about 2 acres, which were bought TEE KING about 1905 for $462. - - DAVIS FINDL A D Y. George E. Nichols has been in the real estate busi- Reasons for Judgment. ness for '11 years in Halifax, describes the 2.52 acres as a narrow lot, with a high, steep front of about 50 feet, unfit for agricultural purposes. Taking every- thing into consideration, places a value of between $350 to $400 per acre, upon the 2.52 âcres. He adds if the owners could not build a wharf on the front it would be worth $100 less per acre. He . says the access to the back lots to the west, through the 2.52 acres, is not practical, the expènse would be equal to the value. Col. Frederick H. Oxley values the 2.52 acres .at $400 an acre, without being aware of the `.' clearancé rights" vested in the Crown. He valued . the Perrin lands immediately adjoining to, the south at $400, and they were under cultivation. However, he was réady to give the same price to the present 'owners, not- withstanding the rocky state of the land—and that the close proximity to the fort would decrease their value $100 an acre. He says the Hesslein lots to . the north are worth somewhat mire than the Davis lots. McCallum Grant, . without taking the ''clearance right into consideration, but considering the water :- front, values the Davis land. at $400 per acre. He says thé Hesslein lots were more valuable than the present lots. This Closes the evidence. Dealing with the waterfront .upon• which so much stress has been laid, it will be well to say at the out- set that as these lands abut at high water mark in a public harbour, the paramount right in thé fore-
'76 EXCHEQUER COURT REPORTS. [VOL. XVIII. 1914 shore is vested in the Crown in the right of the THE KING V. Federal Government. DAMS AND FI N DLAY. Coming to the question of value, a great deal has Buo no for .Jud been said with respect to the project of a summer gment. hotel business to be worked out and operated by the McNab Resort Company. The place was, for a few years recently, operated with that view by means of a steamboat, and the renting of picnicking .grounds. It did not prove very successful. How :could values be established on the foundation of .such a scheme? The whole proposition might prove an absolute failure—the success of it depending more upon the industry and capacity of the com- pany running it, and the commercial possibilities of ,such a scheme in Halifax, than in the intrinsic value of the property. We are not here face to face with such a scheme in full operation, making money .and proving itself successful; but with the mere . prospects of such a plan at Halifax. The success of .such an enterprise is too hypothetical and too remote to be placed seriously in the scale in arriving at the true market value of these lands. Such testimony .as that of witness Regan defeats itself on its very face. The 2.52 acres for hotel purposes reckoned :at his figures of $4,000 an acre, giving us $10,000 in round figures for the 2 1/2 acres, appears on its face preposterous, when we realize what was paid for these lands a few years ago. The 47 acres of which these 2.52 acres formed part were bought in 1908 for $7,500. Three years ago Davis bought lots 39 and 41, of about 82 by 100 feet, for $250 for the two lots. In 1909 he bought the lots 1, 2, 31, 29, 27 and 25 for $1,500, equal to $250 a lot, on area shewn on Exhibit "D". Then Perrin, the adjoining proprietor .to the south, sold to the Government at the time
VOL. XVIII.] EXCHEQUER COURT REPORTS. • o f the expropriation 19 acres of 'cu ltivated lands at $400 an acre. Moreover, the lands taken are all THERING • i mmediately adjoiningu anr ange, the disadvantages of such a neighbourhood. Taking all of these circumstances into consideration with respect to this land, this Court has come to the conclusion that the amount tendered by the Crown, namely,, $400 . per acre, is a just and liberal-compensation to the defendants. There will be judgment as follows : 1. The lands expropriated herein are declared vested in the Crown from the date of the expropria- tion. • 2. The sum of $1,084 tendered by the Crown, is a just and liberal compensation for the lands taken. and for all damages resùlting from the said ex--propriation, which said sum the defendant, Mary E.. Davis, is entitled to be ' .paid upon giving to the Crown a good and sufficient title, free from all mortgages and encumbrances upon the said property.. • Failing, the said defendant to give the Crown such. title, the money will be paid to the mortgagee, James Findlay, in satisfaction pro tanto of such mortgage and encumbrance as mentioned in the pleadings herein. . 3. The Crown will recover the costs of the action. . The mortgagee will be entitled to recover the sun/ of $25 for his costs against the Crown. Judgment accordingly,. Solicitors for plaintiff : Harris, Rogers & Henry.. • Solicitors for defendant: McInnes, Mellish, Ful-ton & Kenny. . 77" ''I.914 subject to all ~ A I N V ~ F ï D L L A A N Y D . Reasons for Judgment.. . •
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.